i feel like all of us are starng to see what the problems in this country are. i think plenty of people are opinionated. i don't think there's many forums where you can really express yourself or try to make a difference or anything. i mean...wha'...whatdo... what do i do, ya' know? the only people that i'm able to affect are the people who care about what i have to say. there is something you can do, but i'm sure it wouldn't be, uh...easy. different man: i get angry about it, but it's like... ya' know, in my own apartment. [laughs]

>> the board of appeals meeting for january 12, 2011. board president tiny peterson will be absent the seating. -- tanya peterson. we have legal advice, and we also have victor pacheco. in the front row, we have representatives from some of the city departments that will be representing on some of the appeals this evening. we have a deputy director laurence kornfield with the department of building inspection and sony administrator scot sanchez who will also be representing the planning department. at this time, mr. pacheco, if you could go over the guidelines and conduct the swearing in process? >> the board request that you turn off all beepers and pagers.

please carry on conversations in the hallway. the first was a presentation are as follows. appellants, premier holders, and respondents each have seven minutes to present their cases and three minutes for rebuttal. people affiliated with these parties must include your comments within the 7 to 3- minute period, and those not affiliated with the party set up to three minutes each to address the board no rebuttal to assist the board in the accurate preparation of minutes, members of the public wish to speak on an item are asked, but not required, to submit a speaker card or business card to board staff when you come up to the electorate. speaker cards are available on the left side of the podium. the board also welcomes your comments and suggestions. customer satisfaction survey forms also on the left side of the podium. if you have questions about requesting a rehearing, board rules, please speak to staff or

call the office tomorrow morning. the board of this is located on mission street. this meeting is broadcast live on san francisco government television, sfgtv cable channel 78, and dvd's of this event are available for purchase directly from sfgtv. at this point, we will conduct our swearing in process. if you have the intent to testify at tonight's meeting, please stand and say "i do" after you have been sworn or affirmed. 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, mr. pacheco. vice president goh, members of the board, we have one

housekeeping item tonight, involving an appeal, regarding the properties 207, 203, and another on los palmos drive. the recommendation is that that be continued until after that is heard by the board. one possibility would be for you to continue this to your call of the chair calendar. because we do not know what the date would be for it to come back. vice president goh: ok, if there are no comments from commissioners, i so move. >> is there any public comment? seeing none, then, mr. pacheco, if you could call the roll, please? >> -- secretary pacheco on that motion, -- secretary pacheco: on

that motion, to the call of the chair. commissioner fung, commissioner garcia, president peterson is absent, commissioner hwang. all three matters are rescheduled to the call of the chair. >> a thank you. moving to item one, public comment. is there any member of the public to would like to speak on an item that is not on tonight's calendar? -- who would like to speak? >> commissioners, i am a director. i want to wish you all a happy new year, or as the hawaiians say, [speaking foreign language]

we have no new members on the board. i see no new faces. i think this year, i will reach the same decision as i made last year, that the board is lacking in one very important criteria, and that is itself examination. we were talking about the qualification of the members of the board, and except in one case, the lack of qualification, and we got a lot of mumbo jumbo from the city attorney's office about how qualified they have to be and whether they meet the city charter. it did not carry a lot of water. i would like to start off the resort of notification to everybody here, and that is to let you know of a certain case number in the united states court of appeals for the ninth circuit.

and many of you probably, if you know this case, would know that this is the case of the nazi salute, where a gentleman made a gesture in the audience and was arrested and forced to leave the public comment session of the santa cruz city council. the ninth district court of appeals had sent this back with the unanimous direction to the court to rehear the case, and it did so on two grounds. one, that there was no clear indication that the members of that council were actually guaranteed immunity for their actions. in other words, we are saying is a lot of people sit on boards and sort of assume their actions are free from any sort of negative response if they acted appropriately. however, since all of you to the oath to support and defend the constitution of the united states and the constitution of

the state of california, you're also required to defend the rights of those here before you in public comment, and the second issue that this case brings up is whether or not you are immune to that. for example, if you are an attorney, and you know because you are an officer of the court that people have freedom of speech, and they have the right to appeal to the government, then you know that that speech is protected, and when they appear before you, no matter what the comments, they are free to say that under the constitution and under state law, the brown act, and under the sunshine ordinance, so as we go through this year, i will be making some commen this board is not reflective of the community. it does not have the experience it needs, and i think anyone who has a case before this board, especially opposed by a city body, it should -- >> thank you. is there any other public comment?

seeing none, we will go on to item two, commissioner comments and questions. commissioners? ok, seeing none, adoption of minutes. before you is the possible adoption of the board minutes from december 15, 2010. vice president goh: commissioners? i move their adoption. >> is there any public comment on the minutes? ok, seeing none, mr. pacheco, if you could, call the roll. secretary pacheco on that notion -- secretary pacheco: on that motion from vice president goh to adopt the minutes, [reading roll] -- those minutes are adopted. >> thank you. we can move on to our agenda items. mr. pacheco, if you could read

the items, please? secretary pacheco: item 4a, a jurisdiction request. the subject property is at 36 ashbury street, about a wireless box permits issued on october 26, 2010, by dpw. the appeal expired on november 10, and the jurisdiction was received in our office on december 1, 2010. the permit holder is nextg network. >> and before we begin, i just want to know if someone is here on behalf of the department of public works? we can then start with the requester. mr. tornheim. you have three minutes. >> good evening, commissioners.

david tornheim, the requester. i am asking that you do this about the box that was installed without any notice to neighbors, and this is what it looks like. overhead, please. as a direct result of the lack of public notice, it appeared on the pole long after the appeal period had expired. shortly after i discovered it, i filed this jurisdiction request. they did not bother to respond to this request. i am not only concerned about this facility, but others like this happen put up without notice to the neighbors throughout the city. i believe the one coming right after this one. nestg network is aware that neighbors have concerns about these devices. the city has vigorously objected

to them, and in response to the efforts, they have even included to try to prevent neighbors from getting notices, but despite some things, two decisions from the ninth circuit court of appeals have basically established that cities like san francisco have the right to regulate these boxes in the public right of way. shortly after that decision, the board of supervisors, led by supervisor avalos, had introduced legislation last year the would allow public notice of these devices. nextg continued the route the period as legislation was circulated through the board to accelerate the introduction of these new devices over what they had before, so they had about 100 of these things in the last year, and on the overhead, please, you can see they have accelerated since 2008, so i see

this is a real problem. this has happened on my street. as for the merits, let me say why this is not appropriate for the street. it is unsightly. it makes a sound that residents can hear from their home, which may interfere with their quiet enjoyment. for this reason, it can decrease property values. san francisco has a policy of undergrounding utilities, and this will undermine that in the future. such an industrial facility is inappropriate and presented public safety hazard. for example, it causes a problem when two devices like this come up, and this was the cause of the fires in malibu. there are no inspections for devices like this. if also, there are backup batteries on this that contain

toxic batteries. -- toxic chemicals. please consider this jurisdiction request. thank you. >> thank you. is there anybody here representing nextg? you also have three minutes. >> thank you, commissioners, for this opportunity to address this issue. my name is natasha, and i am the director of government relations and the california area for nextg. excuse me. projection, please? to show you what we are talking about, this is advertising for sprint. this just came out because they're currently launching their 4g network, in san francisco. we are a corporation in california. the device that was constructed

and 36 ashbury is going to be used in support of this network launch, which, you can see, has just been launched, so there has been a lot going on in the city in the buildup to this. i have reviewed all of the documents for this location including what we submitted come everything that was required under the 2007 guidelines, including one item, so, today, i checked to make sure that what we build looks the same as what was permitted by the department of public works, so there, that is the actual construction of what was built. and here is the simulation of what was requested. the actual construction, actually, the boxes do not protrude as much from the poll

as they did in the simulation. these boxes are significantly smaller than the cable battery back ups and power boxes that are across the street on a different utility pole, and we all see them every day. so the site was constructed last fall. it is currently carrying this 4g traffic as well as mandatory traffic. he is not in the direct vicinity of this. i spoke to two of the residents that live in front of the site, including the mother of a young child, who was playing on the street -- or on the sidewalk, not on the street. i asked her if you questions. i asked her if she could hear the noise. at different locations, we have had some complaints about fan noise, and she said no, it was quiet. i told her what it did come in

she was ok, as did the others i talked to who live in the direct vicinity. i am happy to answer your questions you have, and i have all of the documentation we have from 2007 about the proper permitting. thank you. commissioner hwang: i just have a question, clarifying. i would ask you to clarify about the box across the street. you said that the nextg box is smaller. what is it? >> they are probably this big, this what, and they are great. they often say "alpha" on them, and the warning label, that is for the meter. that is just a standard symbol that is on there, but those are scattered throughout, and those are typically either at&t broadband power amplifier boxes or battery back up boxes. we do not have any battery

backup at this location. vice president goh: i have some questions also. are you finished, commissioner hwang? commissioner hwang: for now. vice president goh: what are the dimensions of this box? >> it is, i believe, 36 inches -- i know it is 50 inches wide and 10 inches deep. let me look at the drawing -- it is 15 inches wide. it is 25 inches tall, and 15 inches wide. and 11 inches deep, roughly. vice president goh: and what kind of notice you typically provide and to whom? >> there are the no parking

signs, but there is no formal notice under the 2007 guidelines, so we did not go through any type of formal notice procedure. vice president goh: and can you talk about the noise? you say that some neighbors have complained about it. it is a fan sound? >> there is 65 of this exact type of box, in advance of this 4g launched in san francisco, and there was one case of excessive noise because of a miswiring of the fan, and we had a mainstream go out and correct that, and that has been corrected. -- and we had maintenance go out. vice president goh: so there are 65.

one last question. how much does the box away? -- weigh? >> hmm, to give you a relative amounts, the battery pack boxes are usually around 3 under pounds. -- 300 pounds. vice president goh: how much does this box wayweigh? -- does this box weigh? >> it looks like this box is 44 pounds. vice president goh: ok, thank you. >> we can hear from the department now.

>> good afternoon, commissioners. i am barbara. i am with the department of public corks. -- public works. the permit conditions were met. as the requester had mentioned, and he is absolutely right, there is an ordinance that is in motion right now which would provide for a couple of things. on the issue of permits in review. the ordinance is about ready to be signed by the mayor, we believe. it was heard before the board of supervisors last month. and it will allow for appeal periods, certain types of equipment, depending on its size, a process where the public could be notified in advance. there are three tiers. tierr 3 -- tier 3 is largest.

we think the equipment that is in front of ashbury street is somewhere in the range of a tier 2 or a tier 3 because of its size. if it were a tier 3, it would be appealable to department hearings and the appealable to this board, to the board of appeals. and we have no issue one way or another if you take jurisdiction. we have no issue with your request to take jurisdiction carry commissioner hwang: -- to take jurisdiction. commissioner hwang: you are

taking no jurisdiction? >> no. any other questions? commissioner garcia: -- >> in tier 3, and people can correct me if i am wrong. i am doing this by memory, so excuse me. after it has been reviewed by e the department of public health, in some cases the planning department -- after it has been reviewed by the department of public health. the permit requester will be required to do a neighborhood notification. commissioner garcia: and how wide? >> can i confer? commissioner garcia: if you just knew off of the top of your head. vice president goh: i had the same question. commissioner garcia: 150 feet in every direction?

>> for the neighborhood residents, 300 feet for the neighborhood association. commissioner garcia: in my last question would be, are you familiar enough with the legislation proposed on this to know whether or not there is provision for retroactivity? >> there is -- i am trying to make sure it understand your question. commissioner garcia: if they were to sign it tomorrow, is there any provision that things that have already been installed, things opposed to be installed, that would be installed prior to the enactment of the warrants, that they would be subject to this? >> -- and stock prior to the enactment of the ordinance? -- installed prior?

>> two years from now, when the one-year permit expires, you would be subject to the new rules. commissioner garcia: ok, thank you. >> and that is the only reach but -- back to previously approved applications. i hope i answered your question. commissioner garcia: it did. thank you. commissioner fung: there are some limitations as to what municipal agencies and appeal groups like ours can deal with the permit for wireless devices. you know, i remember more recent cases where those wireless devices that were on private property, i could not quite remember the case that occurred in the private right of way, which i believe it is different

-- which i believe is different with what one could appeal. >> may i just clarify? are you meeting on private property? commissioner fung: yes. >> those are questions for the planning department. commissioner fung: you just give up the permits? >> yes. commissioner fung: yes. there are some guidelines that we have to follow. until the new law is passed. commissioner hwang: may i? vice president goh: go ahead. commissioner hwang: how long is the appeal window period? >> hold on, please.

two weeks on the notice. and, commissioner hwang, it appeals to the department. commissioner hwang: yes, and then whatever the director decides. it would only be the notice. and then it would go up. >> correct. the notice would cut out when there is a tentative approval, so is prior to installation. -- it is prior to installation. commissioner hwang: we heard from the requester that the jurisdiction requester is down the street. do you know? >> no. commissioner hwang: so you would not know if requester falls

within 100 feet, should this legislation be retroactively applicable? >> i think we could probably figure that out. commissioner hwang: i was just curious. vice president goh: we heard something about undergrounding. what is going on with the undergrounding of the boxes? >> declaring an underground district, with enough equipment on a pole or not, -- with the and put on a pole or not, -- with the equipment on a pole or not, the ones that are underground, they have to move it. obviously, there is pg&e equipment. vice president goh: so a neighborhood cannot decide to foot the bill for