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File No. 16118 File No. -------16118 Item No. -------5 SUNSHINE ORDINANCE TASK FORCE AGENDA PACKET CONTENTS LIST =S=un=s=h=in=e~O..;..;rd=i=na=n"'"'c'-"'e'-T;;..;;a=s=k;....;;.F....-o'"""r __ce;;;..._ ______Date: May 3, 2017 D Petition/Complaint Page: J 71 D Memorandum - Deputy City Attorney Page: 196 D Complainant's Supporting Documents Page:_ D Respondent's Response Page: 262- '21 D Correspondence Page:_ . D Order of Determination ·Page:_ D Minutes Page:_ D Committee Recommendation/Referral Page:_ D Administrator's Report Page:_ D No Attachments OTHER D D D D D D D D D D D D Completed by:_--=-V-0-. Y--'-"-ou=n""'"g.___ _____Date 04/28/17 *An asterisked item represents the cover sheet to a document that exceeds 25 pages. The complete document is in the file. P193 Young, Victor From: Tom Borden <[email protected]> Sent: Saturday, December 24, 2016 11 :44 AM To: SOTF, (BOS) Subject: Violation of SF 67.17(b) and SF 31.15 (d) (CEQA) Follow Up Flag:· Follow up Flag Status: Flagged Sunshine Task Force I arn writing to notify you about the potential violation of San Francisco Administrative Code and CEQA by the Planning Commission. This regards the joint commission hearing on the RPD SNRAMP and its EIR. 67.15 (b) Every agenda for special meetings at which action is proposed to be taken on an item shall provide an opportunity for each member ofthe public to directly address the body concerning that item prior to action thereupon. The certification hearing for the RPD SNRAMP EIR was held on December 15, 2016. The agenda can be found at: http://sf-planning.org/meeting/planning-commission-december-l 5-2016-agenda Planning combined its certification hearing of the EIR with the Ree Park Commission hearing on adoption of the SNRAMP. The hearing contained two agenda items, strangely noted as la and lb. These are two entirely different decisions, made by two different commissions based on two different sets of input information. Despite this, they held the meeting as if only one item was on the agenda. All testimony by Environmental Planning and RPD was given, followed by all public testimony on both decisions. When all that was completed, the Planning Commission voted to certify the EIR and the Ree Park Commission voted to adopt the plan. All of the public testimony was mixed together randomly. It lasted for about 5 hours. About 10% of the comments were directed to EIR certification. Members of the public were only allowed to testify once. There are two 67.15 (b) issues here. 1) This way of conducting the hearing is legalistically in compliance with 67.17 (b). However, it circumvents the intent of the Code. The Planning Commission should have heard testimony on the EIR and made their decision on certification. Then the Ree Park Commission should have heard testimony on the SNRAMP and made their decision on adoption of the SNRAMP. I asked the Planning Commission if they would at least separate the testimonies on the EIR from testimonies on the SNRAMP. They said they chose not to. The effect was to :fragment and dilute public testimony on the EIR. The public's ability to convey information to the Planning Commission was stifled as a result. 2) Members of the public were only allowed to speak once. There were two distinct agenda items at the hearing. Numbering them as 1a and 1b does not. erase that fact. I chose to speak on the EIR and could not speak on the SNRAMP. They will say I could have split my time in half and spoke a little bit about . both. Doing that would have diluted my message and made it less intelligible. CEQA This may not be in your purview, but perhaps it is, or you can direct me elsewhere. The certification of the EIR is supposed to be an unbiased technical decision by the Planning Commission. Is the EIR "adequate, accurate and objective, sufficient as an informational document, correct in its conclusions, 1 P194 and reflects the independentjudgment and analysis of the Planning Commission". The Planning Commission chose to structure the hearing to immerse themselves in testimony for and against the SNRAMP. 90% of the the testimony they heard was of this sort. Why would this be relevant if they are trying to make an unbiased decision on the technical merits of the BIR? Clearly, they see the certification decision as a political one, biased by other factors than those they are supposed to be considering. Recap The hearing was purposefully constructed to circumvent 67.15 (b) thereby limiting public testimony and rendering it less effective. Did the Planning Commission violate the Sunshine ordinance? If not, 67 .16 (b) needs to be amended to prevent this abuse. Does the structure of the meeting violate CBQA? The structure of the hearing conflated testimony on the sufficiency of the the BIR with testimony for and against the Plan, with the obvious result of biasing the certification decision by the Planning Commission. Thanks for considering this, Tom Borden 415 252 5902 This email has been checked for viruses by Avast antivirus software. www.avast.com 2 P195 CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY DENNIS J. HERRERA NICHOLAS COLLA City Attorney Deputy City Attorney Direct Dial: (415) 554-3819 Email: nicholas.colla @sfgov.org MEMORANDUM TO: Sunshine Ordinance Task Force FROM: Nicholas Colla Deputy City Attorney DATE: March 10, 2017 RE: Complaint No. 16118-Borden v. San Francisco Planning Commission COMPLAINT Complainant Tom Borden ("Complainant") alleges that the Planning Commission ("Respondent" or "Commission"), violated Sections 67.7and 67.15 of the Administrative Code ("the Sunshine Ordinance") by allegedly restricting public comment and failing to adhere to agenda requirements at the December 15, 2016 Commission meeting. 1 COMPLAINANT FILES THIS COMPLAINT On December 24, 2016, Complainant filed this complaint with the Task Force regarding the Commission's alleged violations of the Sunshine Ordinance. JURISDICTION The Commission is a policy body under the Ordinance. The Task Force therefore generally has jurisdiction to hear a complaint 'of a violation of the Sunshine Ordinance against the Commission. The Commission has not contested jurisdiction. APPLICABLE STATUTORY SECTION(S) Section 67 of the San Francisco Administrative Code: • Section 67.7(g) provides that agendas for public meetings must include a "Know your Rights" section. • Section 67.15 provides the process for taking public comment during policy body meetings. APPLICABLE CASE LAW • None BACKGROUND 1 Complainant also alleges the Commission violated provisions of Section 31 of the Administrative Code (regarding the California Environmental Quality Act Procedures and Fees) but the Task Force does not have jurisdiction to address this aspect of Complainant's claim. Fox PLAZA . 1390 MARKET STREET, 6TH FLOOR • SAN FRANCISCO, CALIFORNIA 94102-5408 RECEPTION: (415) 554-3800 · FACSIMILE: (415) 437-4644 n:\codenf\as2014\960024 l \01176898.doc P196 CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: Sunshine Ordinance Task Force DATE: March 10, 2017 PAGE: 2 RE: Complaint No. 16118~ Borden v. San Francisco Planning Commission On December 24, 2016, Complainant filed this complaint with the Task Force in which he alleged that the Commission violated Sunshine Ordinance Sections 67. 7 and 67 .15 during the December 15, 2016 Commission meeting. Complainant's recollection of the incident is as follows: The certification hearing for the RPD SNRAMP EIR was held on December 15, 2016. The agenda can be found at: http://sf-planning.org/meeting/planning-commission-december-l 5-2016- agenda Planning combined its certification hearing of the EIR with the Ree Park Commission hearing on adoption of the SNRAMP. The hearing contained two agenda items, strangely noted as la and lb. These are two entirely different decisions, made by two different commissions based on two different sets of input information. Despite this, they held the meeting as if only one item was on the agenda. All testimony by Environmental Planning and RPD was given, followed by all public testimony on both decisions. When all that was completed, the Planning Commission voted to certify the EIR and the Ree Park Commission voted to adopt the plan. All of the public testimony was mixed together randomly. It lasted for about 5 hours. About 10% of the comments were directed to EIR certification. Members of the public were only allowed to testify once. Complainant alleges that by only allowing one public comment period for agenda items la and lb, the Commission violated the spirit of Sunshine Ordinance Section 67.15. Complainant also alleges that the agenda for the meeting at issue failed to include a "Know Your Rights" section, which violates Sunshine Ordinance Section 67.7(g). On January 17, 2017, the Commission's Director of Affairs, Jonas Ionin ("Mr. Ionin") sent a memo to the Task Force in response to this complaint. Mr. Ionin's memo states in part as follows: No violation of the Sunshine Ordinance has occurred. Administrative Code Section 67 .15 requires that an opportunity for members of the public to address a policy body on items of interest within the policy's jurisdiction for every agenda item. On December 15, 2016, the public was, in fact, provided an opportunity to address the Planning Commission regarding the SNRAMP EIR. As a special joint meeting, that opportunity was combined with the Recreation and Parks Commission item for the Natural Resources Plan. Moreover, that opportunity was only provided to comply with Section 67.15 of the Administrative Code. The Planning Commission had already held a public hearing on the SNRAMP DEIR where the public was afforded an opportunity to address the Planning Commission on the adequacy and accuracy of the document on October 6, 2011.
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