3846979 - Hearing - Appeal of Conditional Use Authorization - Proposed Project at 1052-1060 Folsom Street and 190-194 Russ Street - Proj Sponsor Ltr 040419

FIRM and AFFILIATE OFFICES WILLIAM M. FLEISHHACKER DIRECT DIAL: +1 415 957 3232 PERSONAL FAX: +1 415 723 7446 E-MAIL:  WMF!eishhacker@duanemorris.com wwlt

• .duanemorris.com VIA E-MAIL AND HAND DELIVERY President Norman Yee and Members of the San Francisco Board of Supervisors Dr.  Carlton B. Goodlett Place, Room 244 San Francisco, CA 94102-4689 Re: 1052-1060 Folsom Street and 190-194 Russ Street SHANGHAI ATLANTA BALTIMORE WILMINGTON MIAMI BOCA RATON PITTSBURGH NEWARK LAS VEGAS CHERRY HILL LAKE TAHOE MYANMAR OMAN A GCC REPRESENTATIVE OFFICE OF DUANE AIORRJS ALLIANCES IN MEXICO AND SRI LANKA File Nos. 190093 and 190097 (Appeals of CEQA Community Plan and Conditional Use Authorization)
Hearing Date: April th, 2019 Dear President Norman Y ee and Members of the Board of Supervisors:
We are writing on behalf of our client, Golden Properties LLC, the project sponsor of the project that is subject of the above referenced appeals, which have been scheduled for hearing before the Board on April 9th, 2019. Attached as Exhibit A is a true and correct copy of the February 3, 1989, Proposition K­
The Sunlight Ordinance Memorandum  (the "Proposition K Memo"), as well as a copy of Planning Commission Resolution No. 11595, approving the Proposition K Memo, adopted on February 7, 1989.  The Proposition K Memo was adopted by the Planning Commission and the Recreation and Park Commission as the criteria for determining the significance of shadow impacts pursuant to Planning Code Section 295. DUANE MORRIS LLP SPEAR TOWER, ONE MARKET PLAZA, SUITE 2200 SAN FRANCISCO, CA 94105-1127 PHONE: +1 415 957 3000 FAX: +1 415 957 300I 24034_2 President Norman Y ee April4, Page Duane Morris We request that the Board take judicial notice of Exhibit A, as the Proposition K Memo is referenced and discussed in our letter to the Board opposing the Conditional Use Appeal. WMF/dm cc:  Angela Calvillo, Clerk of the Board Alisa Somera, Deputy Clerk Paul Iantomo  (via e-mail)
Sue Hestor  (via e-mail)
24034 2  Very truly yours, DUANE MORRIS LLP
William M. Fleishhacker EXHIBIT A
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• IMPI.EMEN"TATION I ZONING ;.o\51 558·6377 TO: The City Planning Commission MEMORANDUM Th~ Recreation and Parks Commission FROM: Department of Parks and Recreation Department of C1ty Planning 0 McAllister Street San Francisco, CA 94102 February 3, 1989*
RE: Proposition K--The Sunlight Ordinance I
BACKGROUND The Sunlight Ordinance <Section 295 of the City Planning Code) requires the Planning Commission, pr1or to the issuance of a permit for a project that exceeds 40 feet in height, to make a finding that any shadow on property under the jurisd1ct1on of the Park and recreation Department cast by the project is insignificant. ·
The Ordinance further requires that the Planning Commission and the Parks and Recreation Commission jointly adopt the criteria to be used by the Planning Commission in the implementation of the Ordinance. PROPOSED CRITERIA FOR DETERMINING SIGNIFICANCE The approach recommended by staff involves two steps. The first step is to set an ab~olute cumulative limit for new shadow allowed in an open space. The Absolute Cumulative Limit is the additional shadow-foot-hours expressed as .. a percentage of the total foot-hours for each park over a period of one year. The second step is to determine individual building impacts and allocate a portion of the add1tional allowable shadow among specific projects within the Absolute Cumulative Limit. Details on the methodology for measuring and modeling shadows are explained in the memorandum to the Recreation and Parks Commission and the Planning Commission on "Proposition K--The Sunlight Ordinance," dated Novembet·
' 1987. AbSQJ.!!t.Uimi t It is recommended that a quantitative limit be set on the amount of new shadow <summed up over a period of one year> which could be allowed in e~ch park based on the current shadow conditions in the park and the size of the park.  A large park with little shadow could be permitted a larger Absolute Cumulative Limit than a smaller park with a lot of shadow, for example. This absolute cumulative limit could be used up by one or more new buildings, but, the final determination of how much of this limi~ could be used by an Individual building and what form the new shadow will take should be determined on a case by case basis. However, any shadow cast beyond this limit would be considered significant and could not be allowed. AJlocatto~ of The Absolute Cumulative l\mtt AmQnq·Indtvldual Buildings Each open space has distinctive characterist1cs of ex\sting shadows and the shadow that would be created by a new building. Each potential shadow also has d1sttnct1ve character1st1cs. Depending on the proposed new building's location the shadow could be fast or slow movtng <shadows of buildings near the open space w\11 move through the open space slower than a building-farther away from the open space>. The proposed new bu\ld g's he~ght and location will also determine the size and shape of potential new shadow in the park, when <e.g .. time of day, Hme of season> and where in the park the new sh~dow would be cast. Since a potential shadow may have immensely varied impacts at different times of day, or different seasons, or duration of the shadow, or the size or the location of the shadow, the evaluation of impact depends on a variety of qualitative factors. The factors to be considered in allocating additional shadow w1thtn the Absolute Cumulative Ltm w\11 vary from park to park based on the characteristics_ of that park and the pattern of 1ts existing shadows. Qualitative criteria for each park should be based on existing shadow profiles, important times of day, important seasons tn the year, size and duration of new shadows and the public good served by buildings casting new shadow. These bases are explained below:
Value of the Sunlight Tfme of Day <morning, mid-day.  afternoon)
Based on ex1st g shadow conditions and location of a given park, the time of day values of sunlight will have to be established. For example, afternoon and morning sun resources may be more important for preservation in neighborhood par~s whereas mid-day sun may be more important 1n downtown park.s. Additionally. some parks may have more shadow during certain times of the day when compared with other parks. nme of Year <Spring, Summer,-Fall, Winter) . In the same way that the time of day value of sunlight has to be established, sunlight value during times of year will also have to be determined. Shadow Characteristics Size of Shadow Small shadows will generally be preferred to large shadows unless they last for long periods of time or fall on parts of the park where sunlight is pdrticularly critical to users. Duration of Shadow . Shadows lasting a short period of ,time. will generally be preferred to shadows which last a long time unless the fleeting shadows fall during a critical time of day or season and/or are so large that they disrupt use of the park. Location of Shadow Efforts should be made to avoid shadows in areas of the park where existing or future use of the park ts intense and where a new shadow could have detrimental effects on park vegetation .. Butlding Character1st1cs Public Good Served By Shadow Caster Buildings in the public interest in terms of a needed use or building design and urban form may be allocated a larger portion of the Absolute Cumulative Limit than other buildings. For example, the Civic Center Urban Design. Plan calls for a building at the same height as the existing library to continue the cornice on Marshall Square thus completing the gap in the framing of Ctvtc Center Plaza. A
new library bu1ldtng to accommodate the growing needs of the Public Library is proposed at that space. This new building would cast new shadows in the morning hours on Ctvtc Center Plaza. If the new building could not cast shadows, the ability to use the stte for the library would be severely limited. Most of the Cfvtc Center.Plaza shadow "budget .. could perhaps be allocated to be used by thts library. STAFF PROPOSAL FOR CONSIDERATION BY BOTH COMMISSIONS The Proposttton K mandate is to m1ntmtze new shadow tmpacts and protect the sun resource on San Francisco open spaces. On the basts of several public hearings on the subject, the objective ts to construe Proposition K very strictly tn terms of the additional shadow on parks. In order to accomplish this objective an Absolute Cumulative Ltm1t ts proposed for each individual park. This ljmjt ts the addittona] arnount of shadow-foot-hours expressed as a percentage of total-foot-hours of each park as measured by the Sun]ight Acce~
Qomputer System <SACS> developed for the Ctty by the University of California at Berkeley.  Addtttonally, for each open space, criteria for the approval of new buildings have been proposed to evaluate allocations withtn the Absolute Cumulative Limit. There are two major factors affecting the impact of shadow o~ the use of a park which are relevant to setting standards. One is the size of the park and the other is the amount of existing shadow on the park. Taking these two factors into account the staff recommends that the following standards be adopted. In smaller parks <less than two acres> which are already shadowed 20% or more of the time during the yea:r, it is recommended that no additional shadow be permitted. On this basts the Absolute Cumulative limit should be set at zero for the following parks:
Name Of Park Maritime Plaza Embarcadero Plaza I (north)
Portsmouth Square St.  Mary's Square Boedded.er Park Chinese Playground Sgt. Hacaulley Park Huntington Park South of Market Park Absolute Cumulative Ltmit
"/. "/. In larger parks <two acres or more> which are shadowed between 20"/. and 40"/. of the time during the year 1t is recommended that up to an additional O.T'I. of the current shadow should be permitted if the specific shadow meets the additional qualitative criteria for the park. On thts basis the Absolute Cumulative Lim1t for the following parks should be set at.O.l1:
Name of Park Embarcadero Plaza II <south>
Union Square Absolute Cumulative Limtt
.11 o. 1"/. Some parks.  although within th1s category above. have surrounding height
· ~its that preclude the possibility of any new shadow. Therefore.  the nw.olute Cumulative Limit for these parks should be set at 0"/.. These parks are:
Name of Park Washington Square North Beach Absolute Cumulattve·Limit In larger parks which are shadowed less than 20"/. of the time during the year, t ts recommended that additional shadow of up to 1.0"/. could be permitted if the specific shadow meets the additional qualitative criteria for that park. On this basis tha Absolute cumulative criteria for the following park should be set at 1.01.:
Name of Paris Civic Center Plaza Absolute. Cumulative Limit
.01. For the three parks on which additional shadow is recommended, it is further recommended that individual project shadows within the Absolute Cumulati"e Limit be allocated according to the following qualitative criteria for each park. Union Sauare LOCATION: Geary, Post, Powell', Stockton Located tn the center of the Ctty's retafl dtstrtct. SIZE: 105,515 square feet Thfs park, ranks as the third largest Downtown park. CHARACTERISTICS: The park. is surrounded by tall buildings to the east, west and the south. Th1s relatively flat formal park. ts slightly elevated from the surrounding streets. Features include park furniture for stttfng and lawn areas. The greatest tntensfty of park use occurs during mid-day . hours. Users are downtown worker's, shoppers, tourt sts. Many pedestrians use the park as a mid-block crossing. This park is the location for many civic demonstrations and cultural activities. Union Square is near the Powell Street cable car ltne and major hotels.  A parking facility ts located beneath the park. SUN AND SHADOH CONDITIONS:
Yearly Shadow:
Seasonal Shadow:
.31 of the total year round sunshine is used up by existing shadows. The shadow profile for thts park is generally a "U" shaped shadow distribution with stgntftcant shadows tn the morning and even greater shadows tn the afternoon hours. The "U" shaped distribution ts increasingly flat tn the Hinter due to increased mtd-day shadows. Summer: Least shadow impacts -greatest sun resource. Shadowed in early morning and late afternoon with relatively more shadow during the afternoon hours. Approximately 307. of the sun resource ts in shadows at the time of the Summer Solstice. Spr1ng/Fall: Major shadow fmpacts during the early morning and late afternoon hours. Morning shadows increase as Fall approaches. The least shadow impacts occur between 9:30AM and 2:30 PM. During Equinox approximately 357. of the park sun resource is in shade. Winter: The greatest shadow impacts on Union Square occur during the Hinter months. In Hinter, nearly 507. of the park is in shadow for the entire day. There ts very little sunlight available before
:30AM and after 2:30PM during the winter. The Winter Solstice conditions are such that 607. of the park sun resource 1s in shadow. ADDITIONAl SHADOH Absolute L1m1t: Increase of up to O.lt of total foot-hours for the park based on size and amount of existing shadow. A maximum of 392,663.5 new shadow foot-hours could be allowed. Qualitative C~1ter1a:
-Avoid additional shadows during mid-day.
·. Civic Center Plaza LOCATION: Polk, Grove, Larktn, McAllister In the Ctvic Center, wtth major government offices, library and Brook Hall surrounding the open space. SIZE: 222,995 square feet Ctvtc Center Plaza fs the largest downtown park. CHARACTERISTICS: Heaviest use occurs during mid-day hours. Users are ctvlc center workers, tourists and street people.  Features
·include some park furntture for sftttng. lawn area and fountain. This park ts the location for many civfc ·
demonstrations, assemblies and cultural acttvitfes. This ts a relattvely flat formal park. A parking garage is located beneath the park~ Adopted :edestgn of the park wtll accommodate more use by neighborhood children and day care providers. SUN AND SHADOW CONDITIONS:
Yearly Shadow:
Seasonal Shadow:
.41. of the total year round sunshine ts used up by existing shadows. Civic Center is one of the sunniest of the downtown parks. During most of the year the daily shadow distribution profile is that of a relatively flat
"U" shape wtth greater shadows fn the afternoon than ·t n the morn1 ng. By Wtnter the "U" shape has flattened further by decreases tn shadows early and late an~ increased shadows at m1d-day. Summer: Sunny all day except 1n the late afternoon hours when an average of less than 401. of the park is tn shade. Some shadows very early tn the morning and very late in the afternoon. Almost no shadows from 9 AM to 4 PM. Approximately 51. tn shadows durfng the Summer Solstice. Spring/Fall:  In general summer shadow conditions continue from the Spring and Into the Fall. There are however less shadow impacts during the early morning hours and more shadows in the afternoon than occur during the Summer months. Approximately 5% in shadows during the ~quinox. Winter:  Nearly 75% of the park remains in sun during the Hinter months. In late afternoon hours there are increased shadow iinpacts on the open space.  Approximately 107.. 1n shadows dur~ng the Hinter Solstice. ADDITIONAL SHADOW Absolute L1mtt:
Qua11tat1ve Criteria:
Increase of up·to l.Ot of total foot-hours for the park based on stze of the park and the amount of existing shadow. A max1mum of 8,272,486.1 new shadow foot hours could be allowed. Preserve afternoon sun, particularly on seating areas and lawn areas. Embarcadero Cen~er 2 I LOCATION: Embarcadero, Clay & Steuart This open space is located at the Eastern edge of the
' Financial District. SIZE: 149,698 square feet The second largest Downtown park. CHARACTERISTICS: This park is a plaza surrounded by large office buildings'
with many ground floor restaurants opening on to the space. The plaza contains a large fountatn, open air cafes and 1s predominately paved. There 1s a flat grass area at the South end of the plaza. The space has excellent access from Market Street and South of Market Street. During lunch hour the park is heavily used by workers from the Financial District. Tourist use of the park is also heavy due to its location at the base of Market Street, proximity to the Ferry Building, California Street cable car line and the Hyatt Regency. Noon concerts.  fashion shows and
·performances create a great deal of day use of the park. SUN AND SHADOH CONDITIONS:
Yearly Shadow:
Sll..iQfla 1 Shadow:
This open space has significant sun resources durtng the morning hours.  Afternoon shadows are heavy. The
"J". shape to the shadow profile is consistent throughout the Spring, Fall and Summer due to the morning sun and the ~eavy afternoon shadows. The "J"
shaped shade curve disappears in the Hinter. In the Hinter no more than Sot of the park 1s in the sun after the noon hour. The shape of the curve fn Hinter is represented by a shaft of sun 1n the morning and a nearly solid block of shadow fn the post morning hours.  Overall. 37.61 of the annual sun resource is currently fn shadow. Summer: Between 8~30 am and noon there are almost no shadows ,n the plaza.  Before 8:30am nearly 4ot of the space 1s 1n the shade.  After the mid-morning sun the shadows gradually increase untfl 100~ of the park fs in shadow at the end of the day. 30t shaded during the Summer Solstice. Spring/Fall: For two hours fn the mfd-mornfng there is 100% sun in the park. After 11:30 am the shadows increase such that mid-afternoon shadows are greater than in Summer but never reach the 01. shadows of late afternoon Summer days. 60%
shaded during the Equinox. Winter:
. . During the Hinter there 1s a brief two hour period where the park 1s.tn the sun.  After 10 am shadows increase rapidly and by noon in mid-December 901 of the plaza is in the shade. 801 shaded during the Hinter Solstice. Increase of up to·o.11 of total foot-hours for the· park based on stze of park and amount of extsttng shadows. A maximum of 557,086.1 new shadow foot-hours could be allowed. Qualitative Crtterfa:

WHEREAS, Proposition K requires that the Ctty Planntng Commtsston disapprove any bulldtng permit appltcatton authortzfng the construction of any structure that wtll have any adverse Impact on the use of property under the jurlsdtctton of the Recreation and Park Department because of the shading or shadowing that It wtll cause, unless It Is determined that the Impact would be Insignificant; and

WHEREAS, Proposition K provides that the City Planning Commission and the Recreation and Park Commission shalt adopt crlterfa for the implementation of that ordinance; and

WHEREAS, Proposltfon K can most effectively be implemented by analyztng propert1!s tn the City protected by that teglslatfon which could be shadowed by new development, the current patterns of use of such propert1ts, how such properties mtght be used In the future Including considerations of possfble
.future design and redevelopment of the property, and the various shadowing that could be created by vartous structures, tncludtng the amount of shadowing, the duratton. and locatton; and

WHEREAS, The Ctty Planning Commtsston and Recreation and Park Commission endorsed the submission by the Department.of Ctty Planning to the Hayuor of a request for a supplemental appropriation tn order to fund an analysts of properties that could be shadowed by new development <Resolution No. 13887>; and HHEREAS, A contract was awarded to the Untverstty of California at Berkeley's College of Environmental Design to develop a computerized system which could analyze existing shadow conditions on Proposition K properties and provide Information to these Commtsstons necessary to establish rules or guidelines delineating the type of shadowing that ean be determined to be stgniffcant or 1nstgnJftcant; and HHEREAS, a computerized system of analysts was developed and used to analyze existing shadow conditions on fourteen downtown parks under the jurisdiction of the Recreation and Park Department; and

WHEREAS, The Information developed by thts computer analysis was then evaluated jointly by the staffs at the Department of City Planning and the Recreation and Park Department; and

WHEREAS, Recommendations for determinations of significant new shadows based on these staff evaluations were presented jointly to the Commissions In October and November of 1987; and ITY PLANNING COMHISSIO, Resolution No. 11595 Page Z HHEREAS, ·A duly advertised publtc hearing was held on these recommendations; and THEREFOR~ BE IT RESOLVED, That the criteria and the staff proposal for consideration by both Commtss\ons presented In the memorandum to the Planning Commtsston and the Recreation and Park. Commission dated February 3, 1989' regarding  "Proposition K --The Sunlight Ordinance" and describing criteria for determtntng significance be adopted as rules and guidelines for the determinations of stgntftcant shadows for the fourteen downtown par~s analyzed. I hereby certify that the foregoing Resolutton was ADOPTED by the City Planning Commtsston on February 7, 1989. AYES NOES ABSENT·
ADOPTED AKG:lBl Lort Yamauchi Secretary Commissioners Sterman. Ole~. Engmann, Hu, Johnson, Morales and Tom None None February 7, 1989