president chiu: welcome back to the san francisco board of supervisors meeting of tuesday, april 26, 2011. colleagues, before we proceed to the 4:00 special order, our clerk informed me that on the last item that we had discussed i was told that we would continue this to may 2. it should be may 3. so could i ask for a motion to rescind that? motion to rescind by supervisor campos. seconded by supervisor mar. without objection, that should be the case and if we can now pass a motion to continue this item to may 3, motion made by supervisor mar. seconded by supervisor elsbernd . without objection, colleagues, this item 20 will be continued to may 3. madam clerk, could you please read our 4:00 special order items 11 through 14?

>> item 11 a public hearing of persons interested in the decision of the planning department dated february 22, 2011, that a project located on la playa street between cabrillo and fulton street is exempt from environmental review under class three. item 12 motion affirming the determination by the planning department that the at&t upgrade project is exempt from environmental review. item 13 is a motion reversing the planning department's determination that the at&t upgrade project is exempt and item 14, motion directing the preparation of findings reversing the planning department's exemption determination. chau chiu colleagues, we have in front of us today an appeal related to the proposed at&t lightspeed upgrade project. our planning department issued a categorical exemption for the entire upgrade project. this matter before us today is an appeal from a permit granted to at&t from a specific location , la playa street, between cabrillo and fulton streets. for this hearing we will

consider the adequacy, accuracy, sufficiency and completeness of the planning department's determination that the entire lightspeed upgrade project is categorically exempt from environmental review. we'll first hear from the apell ants who will have up to 10 minutes to describe the grounds for the 'peel. we'll then take public comment from individuals who wish spo speak on behalf of the apell ants. each speaker will have two minutes to present. we'll then hear from the planning department who have will have 10 minutes to describe the grounds that the determination that this project is exempt from environmental review. following planning we'll hear from the real part of -- party of interest, at&t, who will have up to 10 minutes to present. we'll then hear from individuals speaking on behalf of the real party in interest. each speaker will have up to two minutes to present. final liquor the apell ants will have three minutes for rebuttal. colleagues, are there any objections to proceeding in this way? if not, why don't we proposed to the hearing and, colleagues, unless there are any initial comments that people would like

to make, i would like to invite up the apellants who have 10 minutes. you can divide it amongst however many of you want to present for up to 10 minutes. first speaker, please. >> my name is raymond holland. one of the two apellant. the other is san francisco beautiful. i would like to address the first issue on our appeal is whether or not there are significant environmental impacts from the project that's being proposed. we believe that however the state legislation specifies under ceqa that there are and it vares from neighborhood to -- varyings from neighborhood to neighborhood. are you having trouble hearing? -- varies from neighborhood to neighborhood. are you having trouble hearing? the categorical exemption cuts out the seven historic districts and acknowledges that lightspeed

network would have significant adverse environmental impacts on the seven historic districts. and then it says the alternatives for mitigating those, they would simply put the sidewalk boxes in other neighborhoods outside of the seven historic districts or put them on public right of ways and in doing so what they're doing is they're basically acknowledging that there is an environmental impact. as i said, it varies from neighborhood to neighborhood. in the richmond district, major parts of the richmond district, there's vareying instances there. the portion that would go in the richmond district would be in addition to a numerable number of other sidewalk cabinets that are already there to support at&t's landline telephone system. it would also be in addition to the portion of the 800 can net -- 800 cabinets that are there to support their uverse system. it would also add to the number of wireless data transmission

boxes that were put up, the majority of which for the last three months of last year and resulted in the legislation you passed in january to start regulating the location of those. the whole regulatory structure for those two pieces of equipment are totally different -- different. and the last are the bicycle racks that are going up on our sidewalks. our public right of ways, our sidewalks and the space over them are become withing cluttered, really cluttered in some areas and not so cluttered in others. we'll acknowledge. that but we think you need to have, you have a citywide exemption for environmental review. we're suth suggesting you need to have an environmental review citywide to deal with all of these variances within the city. there are clutters, there are serious environmental impacts that need to be looked at and

that is the process where you look at mitigation and eliminations of those environmental impacts and that's what we're asking. we're not opposing at&t's network with being installed. we support improvements that those. we think it needs to go through a process where you have an independent party, not at&t, actually moderating the process by which mitigations where they're needed are dealt with and eliminations are dealt with. ok? thank you. >> good afternoon, president chiu, and members of the board. i'm susan brant holy, i'm an attorney who has practice on ceqa and i'm representing apellants. since time is short i'm going to jump into talking about the categorical exemption process. it's been confused in this situation. categorical exemptions basically are the legislators' attempt to

avoid unnecessary environmental review. it's been allowed to create categories of projects that normally don't have environmental impacts. so they don't warrant the time and expense of ceqa review which we all know takes time and costs money. but basically categorical exemptions are we but thal projections. -- categorical projections. there's lots and lots of categories. but there are exceptions. and their argument standard think a explained in my letter to you and your staff agrees, the fair argument standards applies to whether there are any exceptions to the exemption claimed in this case. there's a class three exemption that's been claimed and there's dispute about whether it applies or not and we believe it doesn't apply but i think we should just jump right over that for purposes of discussion today to get to the exception. there's an exception for a categorical exemption under 1

5300.2-b. it says all exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place over time is significant. there's also an exception for unusual circumstances. even though something's in a category that might be exempt, there are circumstances that in this particular situation mean that it's not exempt and the fair argument standard applies to that. so when you're hearing testimony today or you're looking at your file, at the evidence that's been presented to you, you need to look at whether there are facts or reasonable assumptions that this project may have any significant environmental impacts, despite possibly being in a category. and the key here is that we're talking about 726 of these large utility boxes. if it was one or two or 10, that would be very different. but we have 726.

a few years ago when i spoke to those of you who are on the board about with the same project, they had presented 150 applications and map showing the other 700 proposed utility box locations. at this point instead what's come before you is a categorical exemption for the entire program, the 726 boxes. but with the program itself hasn't been approved. all that's been approved so far is one of the utility boxes and what you're being told is that each time one of these comes up for approval it will be separately looked at. and ceqa doesn't allow. that there are lots of cases that say so, that that's called seg mentation. you can't take a large project and put it into bite-sized pieces and that's actually court language that makes the project look like it's not significant. you have to look at them all together. what needs to happen here is that this be reviewed, the whole program in an environmental impact report, which can look at

alternatives including placement on private property which other carriers do or undergrounding and there were people to talk about that today. only through a process do you look at the scope of the whole project and alternatives. there's been none of that done by your staff because it's exempted this project from ceqa. another reason why the categorical exemption can't be used here is that there are conditions. the staff, based on i think the p.u.c. or d.w.r. order, states that when every -- any box comes before them for review they'll consider aesthetics, they'll consider historic resources that may be in the vicinity, they'll consider pedestrian safety, basically they'll consider all the environment problems that are acknowledged to be possible here. when those kinds of conditions, and they are mitigation conditions, i just saw a memo, i haven't even read the whole thing from staff, the supplemental memo, that talks about the fact that these aren't

really mitigating conditions that are being placed on these projects. but they are. a condition that may say nothing can be over five feet tall or nothing can be a certain width or that no construction can occur after a certain time, those are definite conditions that can be applied across the board. the conditions that are on this project involve the review by staff and discretion as to how they're going to mitigate the possible acknowledged impacts of each of these boxes. you can't have -- there's case law that says, the salmon case says, you can't have a categorical exemption if you need to have mitigation conditions. and the reason is, the very presence of the need of a mitigation condition ac nomings that there's a possible -- acknowledges that there's a possible environment problem and there's always the possibility that the mitigation ncaa may not work and if the mitigation fails you have an environmental impact. so it's a disturbance to the board to have the board even consider approving a -- there's been no approval of this project, number one. that needs to happen first.

and it needs to happen based on a comprehensive environmental document. that's what ceqa requires. i think those are the main points. the fact that these are urban aesthetics, those are covered by seek washing the pocket protector's case clearly holds that. there's no question that there are potential environmental impacts so it's only fair to this board that you consider all of those things before this project is approved. it hasn't been before the planning commission. the at&t knows where it wants to put these boxes. i remember the last thing i wanted to say. the burden on your staff and this city to have each individual box go through a full analysis on its own is significant. it makes sense. look at these all together, think about the criteria, adopt mitigation measures whambings needs to be done to -- measures, whatever needs to be done.

look at it all at once and then of course everyone supports the upgrade of this utility and the service that is being proposed. but it can't be done on a categorical exemption. thank you, unless there are questions. president chiu: thank you. supervisor wiener: hi. so, there are a couple of things that have been a real concern and question for me and i haven't gotten a lot of -- as much certainty as i would like about them. and what i want to ask you is, and these are all things that at&t states, and i want to ask you if we aassume for the sake of argument that they are true, if e.i.r. would still be required and they have to do with the location, where they put the boxes, and also whether any other carriers are going to

enter the market and put additional boxes afterwards which is a concern that has been raised. so if we, at&t, states that it is physical yim possible to truly underground these boxes in a way that doesn't cause a protrution, in other words, if you underground them you'll still have some sort of air conditioning unit, that would protrude three feet instead of four feet. according to at&t it's physical yim possible to have a flush undergrounding -- physically impossible to have a flush undergrounding. they also state that private property is not workable because as a phone company they need 24/7 access and quick access if there's a problem with the phone line. so again if we assume that that is true. and then finally, if we assume that no other carrier would have the resources to be able to enter the market and do this kind of project, in other words, if we had certainty that this would be the end in terms of the major box projects in the city,

so if all those things were true, and i understand that you may dispute some or all of them, would an e.i.r. still be required? >> yes. and i appreciate the question and i will accept it's true, the three facts that are we actually don't believe are true. just for purposes of the question. what that does is put you to the end of the decision making process without the benefit of environmental review. the cases are clear that you don't -- the fact that an e.i.r. may or may not be helpful or may or may not produce new information is irrelevant to the decision before you today. all your decision has to be -- it must only be based on whether there's a fair argument that the cumulative impacts of these 726 boxes, even if you don't consider opening the door to other carriers, it's these hundreds and hundreds of boxes on san francisco streets that there's a fair argument, much more than a fair argument, in the record that there could be aesthetic impacts, pedestrian safety impacts, etc. so regardless of whether you

feel there's a compelling argument that they can't be undergrounded, that other carriers won't participate and now i'm forgetting your third one, but regardless of all that, you don't -- you can't skip ahead to that conclusion analysis. you need the analysis, the objective analysis, not from at&t, but an objective e.i.r. analysis. the special question is only is there evidence of potential impact, not is there really a solution out there? that's not the question that's before you and it would be an improper basis for you to deny or to deny this appeal. supervisor wiener: and my next question would be as to the two items, to the apellants. i believe they do dispute those three. but i'd like an explanation for. for example, -- an explanation. for example, that if you believe that it is physically possible to underground them in a flush way, for example, i'd like to know why. and i will just say that, and this is going to be -- these questions are going to be from me or perhapses from other

colleagues to all parties, including planning, because i think that i have a frustration about dish don't feel like i have -- about -- i don't feel like i have as much information and objective data as i would like. and so i'd like to know -- but i know the apellants have stated it can't be undergrounded in a flush way but i've never heard actual backup to that argument. >> there is going to be a speaker tonight and it's not myself since i'm just a laurned not a technical expert, someone will come before you to talk about what they've learned about the potential for these to be undergrounded. and also the fact that we know that there may well be ways to get on private property access 24 hours a day, that certainly is feasible. but an e.i.r., you don't have to know ahead of time that there is a feasible alternative we all know that lot of times do you an e.i.r. and there are mitigation measures but maybe there isn't a significantly beneficial

alternative. here we think very strongly that there are those alternatives, but regardless of whether you agree or believe that or staff does, that's not a reason not to do an e.i.r. it's not the question before you. but people will speak to the undergrounding possibilities and also the private property issue. i appreciate that. again, that's an unfair burden to put on you, to make that decision without that technical information from experts. this isn't the time for that. supervisor wiener: assuming it's not exempt. but that's assuming it's not exempt. >> it isn't exempt. supervisor wiener: and that's obviously the dispute. >> yes. thank you. president chiu: supervisor campos. i think you probably have a couple more questions. supervisor campos: thank you. i wonder if you could explain a little bit more the point that you make about this project not falling within the class three

exemption. >> ok. the question is whether, and i agree with staff, latest cases look to see if they'll fall within the class three, as i explained, even if it's arguably false within it, we have to look at the exceptions or what's really important here. but the two possibilities from class three for a possible categorical exemption, what we feel is this basically falls into the category of construction and location of limited numbers of new small facilities or structures. and you hear it says limited. it's the construction and location. with at&t they argued this three years ago too and this board did not buy it. they argued that instead they should look at the installation of small new equipment and facilities in small structures. that implies a structure is already there and you're putting equipment into them. here there's going to be construction and location of new

facilities. so it falls into that first phrase is our argument. that's the only one that makes sense because you're locating, you're not just putting it into existing small structures. so because it says limited and we've got 726, our position is that it does not fit into this category. this category three also talks about one single family residence can be up to three, due plecks, one store or motel or office. again, it's important, i think, supervisor, to look at the reason behind the categorical exemmingts. these are categories of things that just normally don't have impacts. they have been helpfully categorized to help agencies figure out when environmental review is really pointless. this isn't a situation where environmental review is pointless. so regardless if it might arguably fit the language of the category, the exemption can't go forward. you need more information. what we have manifested in this record is everyone agrees there

could be aesthetic impacts there could be pedestrian safety im-- impacts there could be pedestrian safety impacts. you're done at that point. supervisor campos: i wonder if you have a response to the point that they're making, that this falls under the class three exemption because it is an installation of small new equipment and facilities and small structures. >> it doesn't say -- but what it says here that they're quoting, the stals of small new equipment and if a similarities in small structures as opposed to the phrase below which says location of new structures. the second one sounds like you're putting equipment into structures that are already there. because otherwise the two aren't any -- there's no difference between the first two of these phrases. the first phrase says, construction and location of new small structures. the second one is you're putting equipment into them.

supervisor campos: so this would apply if they were placing this equipment in a structure there's already there. >> yes. that's the logical reading of. this the first says limited numbers and of course you can decide what limited means, the agency. but hundreds and hundreds doesn't sound like limited. that's why we're arguing that first section applies because it doesn't make sense otherwise. supervisor campos: i see. thank you. supervisor mar: thank you. i just had a couple of questions since you were involved with the 2005 appeals. the first one is, jennifer clary from a letter from "san francisco tomorrow" says that in 2005 when our current mayor was the head of the department of public works that he signed regulations that require more costly alternatives to the installation of right of way utility boxes or other installations and if not placed underground utility boxes are

placed on private property according to the regulations. i'm just curious, what authority does that directive or regulation from the head of department of public works have today six years later? >> if it hasn't been withdrawn it's still a regulation. as i recall, the impetus for that was anage knock -- an acknowledge of the of the blight that the boxes have, one needs to look at those alternatives. that doesn't directly relate to the ceqa process which is the question before you today, that's an indication of the concern of the city and the importance of looking at alternatives. and the appropriate way to do that is for the whole program, not box by box by box, 726 times. supervisor mar: and then san francisco beautiful and others are making an argument that at&t is a private entity that is trying to expand into public space on swalks, in heavily traveled street