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 contains calculations regarding expected public exposures but our written submission to the board shows how relevant real-world conditions like an earthquake misaligninged antenna wasn't considered. a class 1 exemption is limited to existing utility facilities

and prohibits using the exemption to expand use. clear wire, by contrast, has no existing facilities in bernal heights park and is proposing a new citywide utility system. a class 3 exemption is limited to the installation of small new equipment and facilities and small structures. the 50-foot tall telecommunications tower in bernal heights park does not qualify as a small structure. a class 11 exemption does not apply to tilts like clear wire and is limited to minor structures that are accessory to existing facilities. commission erred because in this case there are relatively small facilities, clear wire's 5.5 point antenac attach to a major large structure, the 50 foot tower in bernal heights park. as previously noted, even if clear wire's project is determined to meet any or all of these three exemptions, the

cumulative impact and significant effect exceptions to these exemptions apply and clear wire's project as much undergo environmental review per seekwa. for these and the reasons previously submitted to the board, the planning commission erred in categorically exempting clear wire's project from seekwa review. we request that the board of supervisors reject the commission's decision and require clear wire to prepare an environmental impact report prior to proceeding with construction of its new citywide utility system in san francisco. thank you. president chiu: let me ask if there are members of the public that wish to speak on the side of the appellant. please step up to the microphone. anyone else on the side of the appellant please step up and line up in the super aisle. each speaker shall have up to two minutes. first speaker, please.

>> good afternoon, supervisors. my name is robyn mackie, and i live in bernal heights about two blocks from bernal heights park. i would like to discuss in some detail, in some more detail, why, even if clear wire's intent is proposed for bernal heights park are considered in isolation from the rest of its proposed new citywide utility system, the cumulative impact of 50 years of unpermitted antenna installations on the telecommunications tower and the accompanying neglect on the part of the tower and the property owners are enough to require seekwa review. here are some of the recent photographs taken of the telecommunications tower and its immediate surroundings.

there we go. all right. as you can see from the graffiti that was on virtually every area near the tower, and i say was. i was at the site about 3:30 today and a lot of it, much of the graffiti has been painted over, but graffiti remains at the top of the tower. as you can see, the graffiti was on virtually every area near the tower and the tower itself. the current tower and the property owners had done nothing until this morning to maintain this facility in a manner that mitigates the visual impact the structure has vis-a-vis the surrounding public park in which it is located or the spectacular views of san francisco and the bay area afforded by the hill top location. quite the contrary, they have

instead negligently allowed the tower's visual impact to be dramatically worse than it otherwise might be. it is long past due -- president chiu: thank you very much. next speaker, please step up. >> good afternoon. my name is gale mallenson and i live on bernal heights a couple of blocks away from the space where the tower is located. thank you for hearing us today. we really appreciate the opportunity to discuss this with you. i'd like to focus on some of the inadequacies of the hammit and edison report on compliance with fcc limits for public exposure to radio frequency radiation with regard to the unusual circumstances exception and categorical exemption under seek wampt in order to determine that public exposures to radio frequency radiation levels in

excess of fcc exposure standards should clear wire's highly directional point-to-point microwave back haul antennas lose alignment due to unusual circumstances such as an earthquake, all the following must take place. an accurate estimation must be made of power density levels within the point-to-point beams cross-section raid wye and at cross range where people across san francisco could be exposed should unusual circumstances occur resulting in the lack of alignment. the make of the electromagnetic equipment clear wire plans to use at the site and indications as to any and all field modifications that clear wire intends to implement on its own must be taken into

consideration. there must be unambiguous taken into consideration of all the distant end points for the plan's point-to-point transition, including distance, longitude, latitude, elevation and areas. clear wire -- thank you. president chiu: thank you. next speaker. >> frank egger. my permanent address is number 13 meadow lane, fairfax, california. i'm representing the ager family who have resided on bernal hill since 1909. my grandfather built the home there. as a kid i played on bernal hill in the 40s and 50s. i'm very familiar with the area. the city and county of san francisco has the opportunity this evening to

correct inequity and a wrong that has been perpetrated on the people of bernal hill since the late '50s and early '60s. just because those antennas were put up prior to the california environmental quality act going into effect is no reason to exempt them today. the applicant wants to bifurcate this project. the planning commission erred. i urge you to grant the appeal, to reject the project and uphold the neighborhood. this is a vital interest to us all. i first hiked there in the 40s. i hiked there today and please correct this inequity. thank you very much. >> my name is charles kalish.

i live on bernal hill. i didn't know anything about this. i came here for a different purpose. i'd like to ask you to make sure that an environmental study is done before anything is implemented. i got to say something, mr. speaker, i don't know whether it's your job or anyone else's job, but we are your electorate. and the disrespect that goes on that, is going on in this room, not just by ms. alioto-pier, but, really, everyone, not paying attention to what the public, people that took their time to come down here, is saying, it's very hurtful. president chiu: if i could ask you to limit your comments to the full board, not any one person. those are the rules.

thank you. next speaker. >> good afternoon. my name is gabriella schultz and i am speaking to clear wire and the planning commission's reliance on the firm of hammit and edison for their determination of the extent to which clear wire's project meets fcc guidelines regarding public exposures to radio frequency radiation. hammit and edison has, in the past, given conflicting reports on what they supposedly checked in accessible areas in colorado. i strongly believe that given this dubious history of misrepresentation to local governments regarding compliance with fcc guidelines for public exposures to radio frequency radiation and hammit and edison's incomplete analysis of

the extent to which clear wire's project will meet fcc guidelines under unusual circumstances such as earthquakes, i urge you to require environmental review under the california environmental quality act. i vote, please vote to support this appeal. president chiu: thank you, next speaker. >> my name is william. i lived up on bernal heights all my life. i moved there january 11, 1945. i was seven days old from the hospital. my family's lived up there for about 90 years. my children are the last of the new family coming up on the hill. so when somebody's been doing something wrong for 50 years, one more time don't make it right. you know. i would just like to see a little common sense in this

thing. i was a teenager when that tower went up and i didn't know why it went up, i didn't know what it was and how it got there and now i find out what's been going on for 50 years. that's a long time. take a little consideration on the people that live up there, because, you know, a little of this, a little of that, it just keeps getting worse and worse. how bad could it get. i don't know how bad it is and i don't think anybody in this room knows how bad it is or what it is. to me, this is all something i don't understand. maybe i would like to learn a little bit. this is the first meeting i've been to about this tower. it's not going to be my last. so i hope that we could at least come up with something that could work for both sides. not just one. thank you.

president chiu: next speaker. ask if you can activate the projector. there it is. >> my name is steve froehlich and i'm from san francisco. i represent the presidio heights residents for public safety and public policy which we do not have and also i want to support the community on the other side of town as i would support any other community that's in opposition to corporate imperialism. if we can take this to extreme, actually call this tech no fascism because the american people, especially the people in the county of san francisco, cannot rebuff or challenge the 1996 telecommunications act which basically has been written

by the corporation, for the corporations. they could care less about public health, radiation, microwaving to illuminate us to the health implications. this is happening throughout the city so i put this before you, the commonwealth club will be having a discussion. i appreciate the opportunity to support my friends in berna