January 7, 2016 President Ann Lazarus San Francisco Board of Appeals 1650 Mission Street, Suite 304 San Francisco, California Re: Appellant's Br

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12 January 7, 2016 President Ann Lazarus San Francisco Board of Appeals 1650 Mission Street, Suite 304 San Francisco, California Re: Appellant's Brief In Support of Appeal No Regarding the Zoning Administrator's Variance Decision for the 75 Howard Street Project Dear President Lazarus and Members of the Board of Appeal: On behalf of Rincon Point Neighbors Association ("Appellant"), an organization dedicated to maintaining the integrity and character of San Francisco's waterfront along the Embarcadero, I respectfully request that the Board of Appeals ("Board") grant this appeal and deny the Zoning Administrator's decision to grant the variance ("Variance Decision") for the Exposure and Street Frontage Variances, in application to the 75 Howard Street Project (the "Project"). I. INTRODUCTION AND PROCEDURAL HISTORY The Project proposes to construct a new 20-story residential building by demolishing an existing above-grade parking garage on a conventionally-shaped lot. Thus, RDF 75 Howard LP (the "Permit Holder") is constructing a ground-up project that is not confined by the dimensions of the lot, existing structures, or other surrounding circumstances that would necessitate a variance. The reality is that the Permit Holder could have designed a code compliant project, opted not to, and in turn now seeks to entitle a project that is not in conformance with the City's street frontage, exposure, wind, rear yard, height and bulk limits, with no bearing on necessity or hardship as required by Planning Code Section 305(a) 1. On September 3, 2015, the San Francisco Planning Commission ("Commission") conducted a public hearing, at which time the Commission approved the Downtown Project Authorization and 1 All section references refer to the San Francisco Planning Code unless otherwise noted.

13 Conditional Use Authorization applications associated with the Project. With respect to the Section 309 Determination of Compliance, the Commission erroneously concluded that the exceptions "are minor in nature and would be compatible with the prevailing scale of development in the vicinity, which are typically significantly larger than the proposed Project", specifically exceptions regarding the: (1) Rear Yard pursuant to Planning Code Section 134, (2) Upper Tower Extensions in S Districts pursuant to Planning Code Section 263.9, and (3) Bulk Limits pursuant to Planning Code Sections 270 and 272 and Reduction of Ground-level wind currents under Planning Code Section 148. (Commission Section 309 Motion No. at p. 19.) At blush this may appear to be a reasonable finding, however, further analysis of the Permit Holder's design and building specifications, particularly the proposed massing and height of the building, reveals that the Project requires considerable exceptions to allow a design that is inconsistent with the neighborhood and Planning Code. The Assistant Zoning Administrator ("AZA") was present and expressed intent to approve the Variance with standard conditions. Following the Planning Commission hearing, the AZA granted the Variance nearly two months later on November 19, 2015, rendering five findings regarding the Project's inability to comply with San Francisco Planning Code Section 140's exposure and Section 145's street frontage requirements. For the reasons set forth below, the Variance Decision is based on findings that are not supported by the record and should be denied for failure to meet the City's "difficulty or unnecessary hardship" threshold. II. APPLICABLE STANDARD OF REVIEW In accordance with Section 305(a), the Zoning Administrator "shall have power to grant only such variances as may be in harmony with the general purpose and intent of this Code and in accordance with the general and specific rules contained herein, and he shall have power to grant such variances only to the extent necessary to overcome such practical difficulty or unnecessary hardship as may be established in accordance with the provisions of this Section." (Id., emphasis added.)

14 For an appeal of a variance application, the Board is subject to the same limitations that are placed on the Zoning Administrator and, thus, hears the matter under a de novo standard of review. Toward that end, the Board is not bound by any prior determinations made by the Planning Commission and is hearing the variance application for the first time, affording no deference to considerations made by the Planning Commission or the AZA. For the reasons stated below, the Variance Decision does not meet the threshold requirements of necessity set forth in Section 305. III. THE VARIANCE DECISION IS BASED ON FINDINGS THAT ARE NOT SUPPORTED BY THE FACTS OR EVIDENCE IN THE RECORD A. Exposure: Section 140 requires that each dwelling directly face an open area of a public street/alley/side yard of at least 25 feet in depth, or a rear yard meeting the requirements of the Planning Code. The AZA attributes the Project's non-compliance to the location of the Embarcadero Freeway and the dimensions of the Project site and other setback requirements, finding that there are exceptions and extraordinary circumstances "that do not apply generally to other properties uses in the same class of district." (Variance Decision at p. 3.) This statement is simply not true. The aerial attached as Exhibit 1 confirms that the lot size is standard and in conformance with the adjacent Gap Tower, Hills Tower, and Rincon Plaza. Moreover, the AZA claims that "achieving strictly compliant exposure on an interior portion of the property would require a rear yard of 33 feet 6 inches, which is more than twice the tower setback requirement and would reduce the potential buildable area of the site by over 45,000 square feet." (Variance Decision at p. 4.) This representation, however, is not true as the Permit Holder incorrectly selected Howard Street as the front of the structure, not Steuart Street. As depicted in the site plan below, the "Residential Entry" is located on Steuart Street, facing the Embarcadero, not Howard Street, and enters into a 2,409 square foot resident lobby. (See SOM 209 Application Package at p. 3, Sheet A1.02; a complete copy is attached hereto as Exhibit 2.) Thus, for all intents and purposes, the street 3

15 frontage should be Steuart Street, which alters the analyses of the setback, rear yard, and exposure requirements under the Planning Code. As a result, approximately 39 of the 186 dwelling units, a staggering 21% of the total proposed development, will not comply with Section 140. Instead, these units will face the at-grade adjacent parking lot. Despite the fact that the Project site is located on a conventionally shaped lot, Permit Holder opted not to include any sculpting features or increased setbacks in order to maximize the building's square footage and maximizes square footage through height and virtually non-existent setbacks at the expense of creating livable dwelling units as mandated by the City's exposure requirements. B. Street Frontage: The AZA further concluded that the "literal enforcement of Section 145(c)(2) would result in practical difficulty and unnecessary hardship with respect to ingress and egress to the proposed parking garage." (Variance Decision at p. 5.) As proposed, the Project requires a width of approximately 27 feet. This exceeds the maximum 20-foot width limitations set forth in 4

16 Section 145.1(c)(2). Similar to the exposure variance, the street frontage design feature could have been modified by increasing the non-existent building setbacks and does not necessitate the need for a variance. The AZA contends that the variance would provide safe ingress and egress to the parking garage and promote a more pedestrian-friendly environment by eliminating the number of curb cuts. The Variance Decision fails to note that these goals could similarly be accomplished if the Project accounted for increased setbacks that would in turn increase the sidewalk dimensions and provide for a larger turn radius. IV. PERMIT HOLDER SIMILARLY SEEKS EXCEPTIONS THAT COULD HAVE BEEN MITIGATED BY MODIFYING THE PROJECT DESIGN, RESULTING IN A PROJECT THAT LACKS THOUGHTFULNESS AND A SENSE OF CONSISTENCY WITH THE NEIGHBORHOOD 2 A. The Rear Yard Exception Fails to Incorporate a "Step Down" that is Appropriate in Scale and Consistent with Other Buildings Along the Waterfront Section 134(a)(1) of the Planning Code requires a rear yard equal to 25 percent of the lot depth to be provided at the first level containing a dwelling unit, and then again at every subsequent 2 The Planning Code Interpretations, specific to Section 305(a), address the issue of whether variances can be sought where there are other methods for the exception: Section 305(a) states, "No variance shall be granted in whole or in part which would grant a privilege for which a conditional use procedure is provided by this Code." Since this Section of the Code was written before Downtown, the Neighborhood Commercial and the Mixed Use Controls, this restriction should also apply to exceptions and any other "privilege" or entitlement granted by the Planning Commission, since such entitlements provide a Codecomplying alternative to seeking a variance. For example, if a proposed project for a property located in a C-3 District would require either a rear yard variance from the requirements of Section 134 under Section 305 OR an exception to under Section 309 as permitted by Section 134, the applicant should not have the option of applying for the variance, even though seeking the variance instead of the exception may negate the need for a Planning Commission hearing... In this instance, the rear yard and bulk exceptions would have required a variance but for the fact that Permit Holder submitted a Section 309 application in conjunction with the permit approvals for the Project. 5

17 level. Exceptions, however, may be granted if the building location and configuration assure adequate light and air to the residential units and the open space provided. (Planning Code 134(d).) "These requirements are intended to assure the protection and continuation of established midblock, landscaped open spaces, and maintenance of a scale of development appropriate to each district, consistent with the location of adjacent buildings." (Id.) Here, the Commission erroneously concluded that it is appropriate to grant an exception based on the reasoning that such exceptions are "commonly granted and appropriate in downtown locations given the lot configurations and urban design considerations informing the architecture of downtown buildings." (Commission Motion at p. 15, 7a.) The Commission failed to take into account however that, as opposed to buildings located in the heart of the Financial District that are significantly inland from the Embarcadero, the proposed massing and height of the Project is not consistent in scale and design with existing buildings along the waterfront The Project will cast shadows on public parks, result in wind exceedances beyond permitted levels for pedestrian traffic in several locations, and requires variances from the Planning Code's light and air standards for its occupants. Despite all of these impacts, the Commission found the exceptions to be "minor" and authorized the Section 309 Determination of Compliance. Permit Holder will attempt to convince this Board otherwise by providing incomplete and misleading data. For instance, in its presentation before the Commission, Permit Holder lists the heights of surrounding buildings, including the Gap Building and 201 Spear, which at first glance are consistent with the height and bulk of the Project. There is no mention, however, that these buildings are readily distinguishable for the following reasons: (a) the Gap Building and 201 Spear are significantly setback from the Embarcadero (at least 10 times the minimal 9 foot setback that the Commission approved for the Project) and (b) the layout of the buildings in relation to the waterfront provide for a gradual increase in height that is more tapered in design. (See Exhibit 1 attached.) 6

18 With virtually non-existent rear and front setbacks, the design is not consistent with the surrounding neighborhood in violation of the Downtown Area Plan (that provides that "buildings should taper down to the shoreline of the Bay") and San Francisco's Urban Design Element (that asserts that "the heights of building should taper down to the shoreline of the Bay"). There is no "tapering down" of the Project, as mandated by the City's Urban Design Element to allow for the "gradual tapering of height from hilltops to water that is characteristic of San Francisco and allows views of the ocean and the Bay." (Urban Design Element, Obj. 3.) To the contrary, a building at the proposed height of 220 feet will effectively block views overlooking the bay, in addition to the vantage point from the bay across the city skyline. Thus, there is insufficient evidence in the record to support the Commission's findings. B. The Project Does Not Meet the Threshold Requirements for an Upper Tower Extension Due to Project-Specific Impacts on the City's Skyline View, Obstruction of Light and Air to Adjacent Properties, and Increased Shadow on Public Open Spaces Section 309 permits exceptions to extend the upper tower only to the extent it is determined that the upper tower volume is distributed in a way that will add significantly to the sense of slenderness of the building and to the visual interest to the termination of the building, and that the added height will improve the appearance of the sky-line when viewed from a distance, will not adversely affect light and air to adjacent properties, and will not add significant shadows to public open spaces. The Commission provides the following analysis in support of its authorization of the exception: "As noted in the DEIR, the Project creates no new shadows on open spaces under the jurisdiction of the Recreation and Park Department and subject to Section 295. The Project does not contribute to the 'significant and unavoidable' impact to other publicly accessible spaces created by other already-approved and under-construction towers with the Transbay District plan." (Commission Motion at p. 18.) This representation regarding shadow impacts, however, is not accurate. 7

19 In certifying the FEIR, the Commission determined that the Project will have a significant project-specific effect on the environment by creating new shadow in a manner that substantially affects an outdoor public area and will have significant cumulative effects on the environment. (Commission Motion No at p. 3.) Moreover, the exception is primarily concerned with shadow impacts on "adjacent properties". As noted in Appellant's August 17, 2015 comment letter, an independent analysis was conducted to demonstrate that the Project will cast significant shading on Rincon Park. This additional study was sorely needed given that Permit Holder's shadow analysis, perhaps intentionally, failed to include any data or information regarding shadow impacts after 6 p.m. in the summer months. Therefore, none of the factors that would warrant the authorization of an upper tower exception exist in this instance. The appearance of the skyline when viewed from a distance does not align with the existing design of the Gap Headquarters Building and Hills Plaza, and the Project, as noted in the above, will adversely affect light and air to adjacent properties, adding significant shadows to public open spaces. C. The Commission Granted the Bulk Limit Exception Based on Permit Holder's Reduction of the Total Building Square Footage and, Thus, Failed to Take Into Account the Overall Building Design as Required by the Planning Code Section 270 Planning Code establishes specific bulk controls by district for the purpose of preserving the character and seamless transition of buildings located within the same general vicinity. This exception requires other design features to ensure that the added bulk does not: contribute significantly to shading of publicly accessible open space, increase ground level wind currents in violation of the provisions of Section 148 of this Code; or significantly affect light and air to adjacent buildings. (Planning Code 272(a).) Here, the Project includes an average upper tower floor that is only 10 percent smaller than the lower towers, which is a significant reduction from the 26 percent that is required per the Planning 8

20 Code. The Commission found that "these exceptions are warranted given that the Project overall is significantly less bulky than permitted by the Planning Code with regard to maximum and average permitted floor plates." (Commission Motion at p. 18.) Based on a slight reduction in the total square footage of the building, the Commission concluded that "adding bulk to the upper portion of the building rather than locating this amount at the lower and middle of the tower will better preserve views, light, and air from more floors of the neighboring buildings that would massing of the proposed building without the requested exception." (Commission Motion at p. 19.) In light of the fact that the building exceeds the 200 foot height limit, and contains minimal setbacks that results in a disjointed transition along the waterfront, the Commission failed to give any weight to whether the design of the Project affords a "distinctly better design". Exhibit 3 includes two photographs from different vantage points that show what the City skyline will look like once the Project is constructed. The lack of consistency with respect to design, use of space, and the lack of setbacks is readily apparent. The Project incorporates materials that are vastly different than that of the surrounding properties, allowing for a contemporary design that is not consistent with the historic feel of the adjacent buildings. As noted previously, the Project design does not integrate any setbacks or tapering that would make the transition more seamless compared to the height of adjacent structures along the Embarcadero. Based on the overall design, placement, and massing of the Project, the Project does not afford a superior design that is consistent with the surrounding neighborhood. V. SUMMARY As noted above, variances are only to be granted when the project sponsor has demonstrated that without the variance a hardship not of the project sponsor's making would occur, that it would be denied a benefit that other properties in the neighborhood or vicinity have been granted, and that the 9

21 granting would not violate other General Plan or Planning Code provisions or harm other surrounding property owners and building occupants. This variance fails in every one of these categories. The Permit Holder proposes an enormous new construction project and a rear yard designation whose design could easily be modified to eliminate the need for these variances (and exceptions). Thus, the alleged "need" for these variances is solely a result of decisions made by the Permit Holder for its own benefit. Further, the Permit Holder has not shown any evidence of others in the neighborhood who have received such variances. And last but not least, these variances benefit only the Permit Holder to the detriment of the surrounding neighborhood in terms of aesthetics and the use of public space along the Embarcadero. For all the above reasons, Appellant respectfully requests that the Board grant the appeal to deny the Variance Decision and to require the Project Sponsor to consider further design refinements that may eliminate the need for a variance application specific to the exposure and street frontage variances. Sincerely, Dave Osgood for Appellant Rincon Point Neighbors Association 10

22 Exhibit 1

23 EXHIBIT 1

24 EXHIBIT 2 75 HOWARD 309 APPLICATION PACKAGE SEPTEMBER 10, 2013

43 75 HOWARD PROJECT PROJECT SUMMARY September 10, 2013 GROSS AREA TOTAL FLOOR PROGRAM TYPE EL. FLOOR EXEMPT BUILDING RESIDENTIAL VEHICLE PARKING BICYCLE PARKING AREA FROM GFA AREA < 1,000SF > 1,000SF STUDIO 1BR 1BR 2BR 3BR 4BR+ TOTAL UNITS W/PRIVATE UPPER ROOF LOWER ROOF OPEN SPACE RESIDENTIAL COMM CAR RES. PUBLIC PRIVATE SF COMMON SF SHARE CLASS 1 CLASS 2 CLASS 2 31 RESIDENTIAL/MECH , ² 2, RESIDENTIAL / AMENITY , ² 10, , RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 12, RESIDENTIAL , ² 11, ,000 7 RESIDENTIAL , ² 17, RESIDENTIAL , ² 17, RESIDENTIAL , ² 17, RESIDENTIAL , ² 17, RESIDENTIAL , ² 17, AMENITY / RESTAURANT / MECH , ² 10, LOBBIES / RESTAURANT/ AMENITY/ CAFÉ ,054 5,500³ 17,554 2,440 B1 LOADING/ PARKING/ MECH ,500 20, B2-B5 PARKING VAULT ,500 20, TOTAL 377,153 55, , ,900 4,335º 181¹ NOTES º 186 total units minus 103 units without balconies yields 83 units without balconies for a common residential open space requirement of 83*36*1.3333, or 3,984 SF. ¹ 21 studios and 1B below 1,000SF yield 21*.75 parking spaces or 16 spaces, plus one for each of the aditional 165 units for a total of 181 possible space efficient residential parking spaces. ² GFA exemptions for separated mechanical equipment and areas per 102.9(b)(4) ³ GFA exemptions for separated mechanical equipment and areas, ground floor circulation and retail spaces less than 5,000 SF each GFA exemptions for separated mechanical equipment and areas and accessory parking and loading

44 Exhibit 3

45 EXHIBIT 3

CITY OF WEST PALM BEACH ZONING BOARD OF APPEALS

CITY OF WEST PALM BEACH ZONING BOARD OF APPEALS Meeting Date: November 2, 2017 Zoning Board of Appeals Case No. 3356 Dr. Alice Moore Apartments Variances Location Aerial I. REQUEST Site is outlined in