[gavel] director goldstein: good evening, and welcome to the august 22, 2012, meeting of the board of appeals, and with us today is president hwang: , -- president hwang, vice president fung, and joining us should be commissioner hurtado. there is one vacancy. when there is, they may overruled by three members. four votes are not required to overrule a department zone action. robert will provide any needed legal advice this evening. at the controls is the board legal assistants, victor pacheco, and i am cynthia olstein -- goldstien, the

director. scott sanchez is representing the planning department. mr. duffy, representing the department of building inspection, and we also have patrick o'riordan, and john. -- john kwong. if you could, please, mr. pacheco, go over the royals. secretary pacheco please turn off yourself funds -- secretary pacheco: please turn off your cell phones and have conversations in the hall. the comments must be within the seven to three-minute periods, and some not affiliated have up

to three minutes each to address the board but no rebuttals. to assist the board in the after preparation of minutes, members who wish to speak on item are asked, but not required, to submit a speaker card or business card to board staff when you come up to the podium. speaker cards and pens are available on the left side of the podium. the board also welcomes your comments and suggestions. there are customer-satisfaction forms on the left side of the podium, as well. if you have questions about requesting a rehearing or rules, please discuss this with staff after the break or meeting or call tomorrow morning. the board of appeals office is located at 1650 mission st., room 304, between van ness and dubois avenues. it is broadcast on sfgtv, cable

channel 78, and dvd's of this are available directly from sfgtv. at this time, we will conduct our swearing-in process. if you wish to testify and have the board in your testimony evidentiary weight, please stand, raise your right hand, and say, "i do" after you have been sworn or affirmed. there is the right of the sunshine ordinance in the ministry of code. thank you. do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? thank you. director goldstein: thank you, mr. pacheco, and we will start with item number one, public comment for items that are not on our agenda. is there anyone who would like

to speak under that item? seeing none, we will move to item number two, commissioner comments and questions. commissioners? seeing none, then either number three is the adoption of minutes. commissioners, for your consideration and possible adoption of the board minutes from the august 15, 2012 meeting. president hwang: if thou art -- if there are no amendments, i would move to adopt. director goldstein: are there any amendments? seeing none, mr. pacheco, could you please call the roll, please? secretary pacheco: the vote is 3-0, those minutes are adopted.

president hwang: we are going to take a very short break. three minutes. [gavel] captioned by the national captioning institute --www.ncicap.org--

director goldstein: ok, we are resuming the august 22, 2012, meeting of the san francisco board of appeals, and we have item number four, a rehearing requests, where the board voted

4-1, with commissioner garcia dissenting, to grant the appeal and revoke the findings for a later time. the board voted with president s -- hwang absent. the permit number is 11wr-0002. we will start with the requester. ms. earnst, you have three minutes. >> i am government and utility counsel. thank you for this opportunity to request a rehearing in consideration of the permit. the relocation, the decision was not in compliance with state and local law and will expose the city to on necessary legal

liability as crown goes the next step to protect our rights. we have the right to deploy in the public right of way. cities may have reasonable control over the public right of way but only to the extent that they treat all entities equally. on this street, there are numerous utility attachments that are on the street, and so the minimum definition of reasonable is that everybody be treated equally, and by having our equipment not be allowed on the street, it violates the public utilities code. second, we do have this properly vested under the common law. after the first time the permit was revoked that crown had properly relied on, we went to the court of appeals and put in a state, which is why the site has been able to continue in operations. the vested rights have not been

terminated. we went through the process, but it still does not eliminate our vested rights, so we request a rehearing so that this permit be allowed to stand, and finally, under the tillage edition at, there is a requirement that denials be based on substantial evidence, and the substantial evidence standard is fairly strict in california and generally across the country. it does not very all of that much, but a president not liking and installation is not a basis under the federal telecommunications act for denial. the objections and concerns of mr. and mrs. cooper regarding this location, which is near their residence, the visual impact is minimal, which is what dpw and the planning department found. also, we have gotten two ceqa approvals for this location from both the california public utility commission and the city planning department, both which

found that this installation does not have a significant effect on the environment, including the evaluation of the visual impact. if the denial goes through, the visual impact, but i would like to show you a new case, and in recognition of this type of installation that just came down from the court of appeals, in robinson versus the city of san francisco, this installation is three times larger than our installation, and the court of appeals recognized that, quote, the installation, like this one and other ones, would be perceived in existence of existing overhead wires and poles and that the visual impact would be minimal, so we request a hearing to evaluate the installation in light of the other surrounding law. thank you. president hwang: is that a public case? >> yes. it has not come out yet.

the disease into -- a decision to publish was, i believe, monday. president hwang: thank you. director goldstein: thank you. mr. cooper? >> thank you, commissioners. i am the appellant in this case. i do not have a ton to add to my written remarks. i do not think that nextg has raised any issues that would have been undone at the time of the hearing, and i do not think they and able to show manifest injustice, and i guess ms. earnst raised a few points, and one is the vested rights, which, i read the decision by the courts, and i did not see anywhere where they actually kind of overturned the board's

previous decision that vested rights did not apply in this case because there has never been a properly issued permits at this site, a determination that the board made last time is that a properly issued a permit is required in order to result in vested rights, which has never occurred here. the installation picture that ms. earnst is obviously a different location. we are on a quiet, residential street. it is a protected street. it has a good view, and i could actually see it looked like the n-judah turn, a little bit of a commercial corridor. it is not quite the same location. the city has the ability to be a productive partner in where we put this equipment. and we are allowed to make rules about what is an appropriate place for this equipment, and nextg is indicating that a

utility pole in a protected location, they are allowed to be accessed at will, and i think that that is the wrong message, and that is part of the reason article 25 came to be, and the board of supervisors passed that ordinance, which was to slow that down a little bit, because they have largely been given free rein. members of the community up until article 25 were not provided notice and could not be active participants in the process, and so, i am hopeful we can come up with a more reasonable approach than just giving free rein to companies like nextg. that is all i have to say. president hwang: thank you. director goldstein: thank you.

mr. kwong. >> thank you, john kwong, the department of public works. we do not have really much to add, and they were suggesting that this was free rein. it is not. anyplace of wireless facilities in view corridors with excellent view, the placement of these facilities in historic neighborhoods and also a historical -- under the old article, when it is around areas of recreational park jurisdiction, over recreation or parks, it is also required for a certain level of oversight to ensure that it is satisfactory to the department of recreation and parks, some to suggest that there is free rein is not

necessarily correct. there are certain oversights that we are required to provide under article 11.9b and also under article 25, for clarification. thank you. president hwang: thank you. director goldstein: thank you. is their public comment on this item? ok, seeing none, then, commissioners, the item is submitted. vice president fung: commissioners, i have not heard or seen anything in the brief that is new, and we should let this go to its next venue. commissioner hurtado: i feel the same way, and i apologize for being late, too. vice president fung: i am going to do nine the rehearing

request. director goldstein: ok, mr. pacheco? secretary pacheco: the vote is 4-0. this rehearing tonight, and a notice of decision shall be released. director goldstein: thank you. we will move on to item number five, appeal no. 97-165, bhazubhai patel, the subject property at 4201-4211 judah street. this is protesting the issuance of a letter of determination dated november 19, 1997, addressed to timothy lee at tenderloin housing. we will start with the appellant. >> thank you, director >> thank you, director goldstein.