the health commission, it is an advisory finding by the health commission that goes to planning, which can decide that even if there is a finding of inconsistency, that on the finding of inconsistency, on the whole, the project should be approved. it is not as you indicate that the consistency finding trump seekwa, trump everything else, in fact, even if there is a finding of inconsistency, the planning commission can decide to approve the project elsbernd commissioner ecialsb elsbernd: could approve the c.e.u. but then could. >> we drafted this in

consultation with the city attorney's office and our understanding and the intent of the legislation is should the appeal come before the board of supervisors, that the board of supervisors will have the ultimate say based on the powers it already has, it doesn't change any of those powers, so the board is free, if there is a finding of inconsistency, the board could very well decide that notwithstanding that finding, that it still would approve the project. it doesn't change any of the board of supervisors' deliberations. >> it could, but it could also very well disapprove. >> i think that the board of supervisors, that the issue of consistency with the healthcare needs of the city is a factor for the board of supervisors to consider. it is ultimately within the power and jurisdiction of the board of supervisors to decide if, as a whole, given everything into -- taking everything into account to approve or not approve a project, it's the same

analysis that currently exists for the board. the only difference is that healthcare is now a piece of that analysis. >> you've said absolutely nothing that refutes the scenario i put forward -- a board could approve seekwa, could approve the c.u., and reject the consistency. >> what i would say, supervisor, is that the board could look at a project and take everything into consideration with healthcare factors being one of the factors to approve or not approve a project. >> the healthcare master plan is done by the planning commission, the health commission, they make the determination. the board retains power to handle appeals on environmental granted to us by the state and c.u. and there is no right of the board of supervisors. otherwise, we're giving seekwa

the ability to be subordinate to the law we're creating. that's the situation we're creating. >> i would respectfully disagree with that characterization and with respect to the appeal and your statement that somehow this creates an additional appeal prose, what we have tried to do from the beginning with the city attorney's office is to incorporate the appeal into the existing land use appeal to the extent that there is any -- and that's been the intent and remains the intent -- to the extent that that's an issue, we are certainly happy to provide clarifying language to make sure that's the case. >> let me throw out another suggestion, if you want to inner corporate it into the appeal to come to the board of supervisors, make this a factor that is part of the conditional use. make it a part of the second appeal that can already come to the board but you're creating a third scenario. if it's truly about

incorporating it into what's already here, then actually do that, put it into the conditional use appeal, don't create a third appeal. >> i don't think that we are creating a separate appeal. i think we're talking about incorporating the process of consistency determination into the existing land use appeal process. that's the intent. that's what this language tries to do. president chiu: supervisor alioto-pier? supervisor alioto-pier: thank you, supervisor chiu. let me start by thanking supervisors campos and elsbernd for that dialogue. i really, you know, it's an interesting issue. back in 2008 when we formed the blue ribbon panel to look at cpmc and what cpmc was doing, particularly with the rebuild of

cathedral hill and at that time the closure of st. luke's and the project on the california street and presbyterian street specific campus, this was a big topic of conversation, what are the healthcare needs of san francisco, where are we going to go, how are we going to know what san franciscans need, particularly in a city as small as ours and divided as ours physically, geographically and the fact that we live in an earthquake zone and in many ways need to assure that our healthcare providers are across the city equally not only to make sure everyone's covered but to make sure that in case of a disaster, we have the type of coverage in different parts of the city that we need, not knowing if one part of san francisco might at some part be closed for reasons related to any type of natural disaster. that being said, when we went through the blue ribbon panel,

it was an eye-opening experience and i think that the open and the free dialogue through it, we accomplished a lot. the biggest accomplishment was far and away the quiment from cpmc not to close st. luke's hospital but to invest $250 million into rebuilding it and it was through a lot of those open conversations. right now, we're dealing with the issue of skiff beds, the fact that san francisco needs more than we currently have allotted. i understand that the type of healthcare proposal for the city would help us focus in on the needs of san francisco and figure out where we would place different facilities to cover essentially our voids and holes. i think that the topic of sniff beds is something that would probably benefit greatly from an institutionalized plan for

san francisco healthcare. that being said, i still have concerns with this particular process. supervisor elsbernd touched on a number of things i was going to bring up. this did go through committee yesterday and there were amendments made yesterday, amendments sent out with the committee report. i do think that this is the type of issue that probably should not have been sent out as a committee report, quite frankly. it's big enough where the amendment should have sat and we should have had a little more time to discuss them with stakeholders. at this point, i am not prepared to support this particular proposal. i will be having my own conversations over the next week, i do think that it is an extremely important issue. i think that it helps get very close to solving some of issuesd problems we have but i need to make sure that in trying to solve problems we're not creating more drastic ones in the process and there has been a lot of conversation with cpmc

and the hospitals and the rebuild project of cpmc, in part because it's such a big one of the but i have not had the type of conversations that i need to have with st. francis and catholic healthcare west and the other hospitals that will be impacted by this. i think we have to be careful that we're not setting up a d.r. process for our hospitals, much like the d.r. process we have for our private homes. i am not prepared to support this. i would like to support some type of -- some type of citywide healthcare plan, but at this point, this is not the one that i'm able to support. president chiu: supervisor campos. supervisor campos: thank you, mr. president. i thank everyone for their comments and i understand where supervisor alioto-pier is coming from. it is isappointing, nonetheless, not to have your support, because i think this

legislation, in fact, does codify a lot of the work you've been doing around a number of issues involving healthcare. be that as it may, we believe that the legislation as currently drafted addresses this issue and that's on the issue of the appeal that the intent of the legislation, including, as currently written, is for any appeal to join an existing land use appeal. nevertheless, to make sure that that is as clear as possible, we have worked with the city attorney's office. there is language that you should just have received from the clerk of the board, that, again, reiterates that very point about the appeal. again, we believe that the legislation as currently written already does that, but to the extent that there is any question, this language, basically, says -- and i will read it, the "the board of supervisors or board of appeal as applicable shall act on the

appeal of a consistency determination at the same time it acts another entitlements for the proposed use. the board of supervisors or board of appeal as applicable may find countervailing public policy considerations justify approval of the entitlement despite any inconsistency with the healthcare services master plan." again, it confirms and clarifies what we have been saying all along in the event that there is any question that someone may have about that. so i make a motion to make that amendment. president chiu: supervisor campos has made a motion. seconded by supervisor dufty. without objection, it is accepted. now we go to supervisor mirkarimi. supervisor mirkarimi: i want to express by compliments to supervisor campos and supervisor maxwell and for the advocate union and private sector for their input in the composition

of this ordinance in this master plan. second, is that, proudly, we all stood in celebrating the good work of then supervisor and then assembly member tom amiano and darren newsome in the birth of healthy san francisco and healthy san francisco was born out of the principle that there should be access to healthcare, no matter of your income, and that access shall not ever be impeded and this is on the wave of national thinking about healthcare reform. but there is no reform in healthcare if it is misplaced or misguided especially in its land use strategy and from time to time over the last few decades when we have considered in big swaths tracts of land about redeveloping certain areas of the city, great mistakes have been made and i don't see a master plan as it sort of

assigns what is the future of san francisco's healthcare epicenter. my district, district five, is essentially ground zero for the high majority of healthcare in san francisco. we have ucsf, we have kaiser, ucsf mount zion, pacific presbyterian and soon to be, we'll border on cpmc most likely. i think a healthcare master plan in the past would have been extremely informative and instructive in terms of exactly what it is we're about to embark on in this sector of our city. so i think it's a welcome addition and i thank the authors who put this forward. president chiu: supervisor elsbernd? any final comments? supervisor elsbernd: i appreciate this amendment, this amendment does absolutely nothing to change the scenario i

presented. all the amendment does is say that the appeals have to come together procedurally. that's all it does, and frankly, i don't know if there's a need for that because we don't have that requirement for seekwa and for the c.u.'s, but procedurally that's how we handle things anyway. so thank you, but it does nothing to address the scenario i presented. president chiu: any final comments, colleagues? supervisor clu? supervisor chu: a question for the city attorney, given the language proposed here, it sounds to me the question that was proposed before, supervisor campos said the idea was to merge it so it's one process, one appeal, but the way this reads is likely we could potentially hear the items at the same time and have them acted upon at the same board meeting but hypothetically, we could have different results for each of the different appeals so we could have an appeal for the conditional use that might or might not be overturned, we could have it for environmental,

but in terms of the consistency component, it could be a completely different result and in that situation, given what this language says, the board of supervisors could potentially act upon that inconsistency or consistency and say, yes, we approve it or we don't approve it, correct? >> that's right. it would still be three separate determinations by the board and the board could act on any of these determinations. supervisor chu: that seems to indicate the point i think supervisor elsbernd was making which is any one of the items, any one of the appeals, could be the basis for approving or not approving a project. so if the intention was not to create an additional appeals process but to incorporate it, we could hold off the amendment and before we take a vote and make sure this is the language that we really want.

president chiu: supervisor chu, is that a motion on this item? okay. is there a second on that motion to continue? seconded by supervisor elsbernd. supervisor campos. supervisor campos: i will vehemently oppose that motion and ask the board to act upon this. this is something we've been acting on for the last seven months. this has been subjected to a number of hearings at the health commission, a number of hearings at the planning commission, the item has been heard at land use. it was continued at land use. one thing i would say about where we are is that i think that the underlying challenge for many people with respect to this legislation is that we are essentially doing something that we haven't done, and i understand that can be difficult, but the same thing could have been said about healthy san francisco could have been said about a number of things. we have tried to incorporate as

many of the suggestions as we possibly can. we -- what we heard from the planning commission is that this is something that we should have done years ago, not months ago, but years ago. so i would respectfully ask my colleagues to please vote against the motion to continue and vote yes or no on this legislation. thank you. president chiu: colleagues, any further discussion? we could take a roll call vote on the motion. >> motion to continue for one week to november 23. president chiu: roll call. >> supervisor maxwell? maxwell, no. supervisor mirkarimi, mirkarimi, no. supervisor alioto-pier. alioto-pier aye. supervisor avalos no. supervisor campos no. supervisor chiu, no. chu, aye.

daly, no, dufty no. elsbernd, aye. mar, no. there are three aye's and eight nos. president chiu: motion to continue failed and unless there's discussion, if we could take a vote on the underlying ordinance as amended. alioto-pier, no. avalos, aye. campos, aye. president chiu, chiu, aye. chu, no. daly, aye. dufty,iay, elsbernd, no. mar, aye. there are eight aye's and three no's. president chiu: the ordinance is passed on the reading as amended. we have a number of 4:00 special agenda items.

y suggest we take them in their order and move to the -- madam clerk, could you call items 37 through 44. >> item 37 is a public hearing of persons interested in the decision of the planning commission's july 1, 2010, determination of exemption from environmental review for a project located at 10 birnl heights boulevard. item 38 is an item affirming the planning commission's determination that the byrne heights project is exempt from environmental review. item 41 is a public hearing on the conditional use appeal for 10 bernal heights boulevard. item 42 is a motion approvalling planning commission's decision

on property at 10 bernal heights boulevard. item -- excuse me, item 44 is a motion directing the clerk to prepare finding. president chiu: colleagues, at this time, we have appeals of both the environmental impact review exemption and conditional use application for the project at 10 bernal heights boulevard. it is required that we take up items 37 through 40. this is an appeal that challenges the planning department's determination that the proposed project is exempt from environmental review under the seekwa guidelines section 15331, 15333 and 15 311. the project must consist of the

operation, repair, maintenance or minor alteration to an existing facility involving negigible or no expansion of an existing use. to qualify for a class three exemption, the project must consist of the construction of a eliminated number of new, small structures or conversion of an existing small structure to a new use with minor alterations. to qualify for class 11 exemption, the project must consist of the construction or replacement of minor instructs accessory to an existing facility. if the project qualifies for any of these xengetions, it is exempt from further environmental review. it does not have to qualify from all three exemptions. to uphold the exemption, we must find that the criteria for at least one of the exemptions are met and that the project would not otherwise have a significant effect on the environment due to unusual circumstances. as we typically do, today's process will be as follows. we'll hear first from the appellate who will have up to 10

minutes to describe the grounds for the appeal. we'll take public comment from individuals who speak on behalf of the appellate. each speaker will have up to two minutes. the planning department will have up to 10 minutes to describe the grounds for exemption. following planning's presentation, we'll hear from the real party in interest who will have up to 10 minutes to present. we'll then hear from persons speaking on behalf of the real party of interest for up to two minutes apiece and the appellate will have three minutes for a rebuttal. colleagues, any questions about proceeding in this way? if there are no objections to proceeding in this way, supervisor campos, as the supervisor for the district in which the project was located, do you have opening remarks? >> thank you, mr. president. through the chair, colleagues, i simply want to thank the different parties that are involved in this matter. the appellate, and the respondent for trying for the last few weeks to find a resolution to this item, to this

matter. unfortunately, that did not happen and so with that, i look forward to hearing the presentation. president chiu: with that, why don't i ask the appellate if you could please step up to the podium. you shall have up to 10 minutes to present your case. >> good afternoon, supervisors. my name is terry mill, i'm representing the appellant in this project. i'm a citizen of bernal heights and have lived in bernal for decades. i moved there smartly after the first microwave towers were put on top of the hill and moved there several years before the neighborhood rallied to make the top of the hill a city park. we're appealing the planning commission july 1, 2010, categorrical examination for the bernal heights project from

environmental review under the california environmental quality act. we believe the planning commission erred in exempting this project under seekwa and we previously provided the board with detailed written discussion of why. first, i would like to clarify why the project is unique and distinguishable from other licensed wireless carriers that do business in san francisco like at&t and verizon. these other carriers utilize antenna based station facilities to transmit and receive signals to and from their customers' wireless devices, just as clear wire plans to do. however, these other carriers typically connect their base stations to the public switch telephone network by using fiberoptic or some other telecommunications land line. this is referred to in the industry jargon as back hall. clear wire, by contrast, plans

to connect the base station using wireless point-to-point mike wave back hall including five point-to-point dishing proposed to be installed in bernal heights park. this is an important distinction between clear wire is seeking to establish a new utility system in san francisco and constructed to provide wireless services to the entire city. the five microwave dishes proposed for bernal heights park are an integral part of clear wire's new citywide utility system as presently designed. according to clear wire's application, the bernal heights site connects the following sites and enables these sites to function at their fullest capacity. 375 alabama street, 75 charter oak street, 528 valencia street, 1485 bayshore and 5226 mission. it's obviously spread all over one section of the city in this proposal and it would be done

using microwave antenna instead of land line. under seekwa, the applicability of exemption must be based on the entire project as a whole. piece mealing clear wires new citywide facility system by considering the bernal heights park antennas in violation is a violation of seek wampt for this reason alone, the board of supervisors should overturn the planning commission's categorical exemption. mover, clear wire's five-year facilities plan on file with the planning department for its new citywide utility systems list an additional 63 locations throughout san francisco where it plans to place wireless facilities. however, clear wire's five-year plan does not discuss whether any of the churches or other buildings are historic resources listed in the california historic research information system or may be eligible for

california registry as an individual resource. there is no recognition that bernal heights refugee camp from our historic connection to the 1906 earthquake and fire were taken into consideration in their plan. san francisco's preservation bulletin number 18 states that by definition any property listed in the california registry is a historical resource for seekwa purposes. for these and other reasons, we have submitted in writing clear wire review of the utility system in its entirety is required. even the five mike rowave antennas are considered in isolation, environmental review under seekwa is still rider because -- required because there are certain exemption for categorical exemption under

seekwa, including the cumulative impact exemption. section 15 -- point 2b states that for exemption under seekwa, it is inappropriate when the cumulative impact of successive projects of the same type in the same place over time is significant. the telecommunications tower on bernal hill was approved by a single conditional use permit in 1960. over the past 50 years, as many as 70 or more antennas have been installed on the tower without the appropriate conditional use and/or required building permit. it was only in october 2009 when t-mobile sought permission to install additional antennas on the tower that the planning commission retroactively approved and capped at number of antennas on the tower at 71 by means of a single use conditional use permit approved

for t-mobile. now clear wire wants to install antenna on the tower in bernal heights park, seekwa review is appropriate and the planning commission erred, there is another exception to categorial exemption under seekwa that the planning commission failed to consider, the unusual circumstances exception. section 15-300.2c of the seekwa guidelines states that it's inappropriate where there's a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. because of the -- line of clear wire's wireless back haul point-to-point microwave dishes must be maintained relative to the true horizon as well as the elevation and azmusof their predesignated end point, there's

a reasonable possibility that members of the public might be exposed to radio frequency radiation levels in excess of fcc public exposure guidelines. if an earthquake, accident, or act of vandalism makes a microwave dish lose alignment. clear wire's application contains no discussion of this type of reasonably foreseeable significant event. instead, it simply includes a statement from hammond and edison consulting engineers that the document says that it is in compliance with appropriate guidelines. the hammit and edison report is limited to measurements at ground level even though there are publicly accessible areas above ground level near the tower on bernal hill, evidenced by copious amounts of graffiti. the hammit and edison report