reps are saying that they're a quasi-utility and public entity. but i'm just curious, under state law, that have different requirements so we should be look at them as if they were a public utilities commission, but are they a private entity or are they quasi-public entity? >> i don't note answer to that. but again, i don't think that affects your decision because as a private party they would come to you for a permit. as a public agency, even if the city itself as a public agency decided to place all these boxes, it would be a discretionary decision with possible environmental impacts subject to ceqa. so whether it has ra right to be in the right of way or it's quasi-public or not, you have -- they're proposing to do something with potentially significant impacts. we need to do environmental review. so that question, while very interesting and there's probably different points of view and i'm not a utilities expert but i do know ceqa and this project, regardless, would require

environmental review. president chiu: supervisor elsbernd . supervisor elsbernd: thank you. i've got a number of questions. let me start with what i imagine will be an easy one for you. but still i think an important point. i think the number is something a little over 200 cities in the state of california who are also subject to ceqa have granted the categorical exemption. for this project. not one of those cities has said an e.i.r. is necessary. i imagine what you're going to say generally in san -- is san francisco is unique but let me put the ball on the tee for you. tell me why san francisco, unlike any one of these 200-plus cities, needs to do an e.i.r. and why all of those cities who are also subject to ceqa are wrong. >> i don't know the evidence that was before.

assuming 200 cities said fine, i don't know the evidence that was before those cities. yes, this is a uniquely beautiful urban location in areas, in many of the cities of california have more space, more urban -- excuse me, more rural areas, even within a city that they can place these, so they may have different impacts. we also have the director from ed lee and other pieces of information in the record where this city has acknowledged that these boxes will have the potential to cause blight and for that reason have to be carefully cited. i don't know how those cities -- i truly don't know how they proceeded, what evidence they had and where the locations were or how many of the boxes were needed. we really don't have the information. what i do know is the fact that other cities didn't do it doesn't mean that the law doesn't require it here. it's not really relevant. supervisor elsbernd: ok.

let's talk about the categorical exemption and the class three, two arguments here. one that you're suggesting they're applying the wrong type, that they should be applying the first type within class three, as i understand it there are three types within class three. what i heard you say is the first type is the appropriate one and planning and the project sponsors are inappropriately applying the second type? is that correct? >> yes. even to say a little more. there's a preamble to class three where it describes the kind of things that are exempt. then it lists, there's six things listed below. none of these that are the specific types of projects include a project like this. we're talking about the general -- supervisor elsbernd: that lists of examples is not exhaustive, correct? it specifically says, the statute there, that this is just an example and other projects that are similar could fit? >> i completely agree. all i'm saying is that the preamble is the general terminology and it gets to the specifics, it's not an

exhaustive list. even though the language at the beginning, all question talk about is whether it seems to fit or not and logically it seems to me that the first phrase is the one that fits because it talks about locating small structures. supervisor elsbernd: and you're making the argument that the second one, the department and the sponsor, are applying, is inaccurate becausify understand it right, you're saying that applies to equipment going into existing facilities. >> it implies that because it doesn't talk about locating. supervisor elsbernd: the phrase existing or the word existing is not in the statute. >> that's right. the description only talks about installation, though. it doesn't talk about locating them. supervisor elsbernd: and the project sponsors have submitted a brief and they've cited a case that specifically interprets this second point that was the california coastal commission and the installation of new parking devices that we're not going inside an existing facility but we're brand new.

and the court upheld it. >> ok. that may be. that's regardless of whether class three fits and i also acknowledge it's substantial evidence standard. supervisor elsbernd: i've got questions on that. this case seems to be on point that says this notion that it has to go into an existing facility. that case doesn't suggest that at all. it says the exact opposite. >> i would suggest that since the substantial evidence standard applies to whether something fits in a category, if there's evidence on the city's side, i haven't -- we haven't focused on that point. the more important point is that the cumulative affect of so many of these -- so it's not -- i would just move on from there and say, yes, you have a reasonable argument, i'm not aware of the case you're talking about. supervisor elsbernd: i appreciate that. the cumulative impact really is the kind of frankly lone hook the apellants have. >> and the unusual circumstances as well.

i'm just telling you, that's another argument. supervisor elsbernd: the cumulative one is the one that could spolentionity i will sway me. big -- that could potentially sway me. big picture. 49 square miles, iminge not even going to try to do the math of the total number of square feet that are san francisco city sidewalks and dividing that total amount by what sounds in this room is a big number, 700-odd boxes, but when you do the math, you're probablying talking less than .0001% of the total square footage of san francisco sidewalks? give me a little bit more on why that is a cumulative impact. i don't see that as a significant cumulative impact. convince me that it is. >> the question isn't respectfully whether you do or not, it's whether there's evidence that it is. there's evidence from your staff -- supervisor elsbernd: i'm not hearing that's evidence.

>> on the record from your staff, from ed lee talking about the potential for blight from these boxes, we have a model that will be brought in, how big they are, they attract graffiti, they have an impede pedestrian access, we have the record from 2008 of the testimony before this board about the significant impacts and the opinions of the people who live here. so when you're living in an area , a beautiful urban area like this, people have opinions and your staff has indicated that there is potential for blight. otherwise they wouldn't be -- they wouldn't have this requirement that each box be looked at carefully for its location to reduce the potential for pedestrian safety problems, litter, graduatityify and -- graffiti and other impacts. those conditions wouldn't be needed if as you say the small number of these box meant there was no potential environmental impact which is the standard.

supervisor elsbernd: then just, my last question for you, -- now, help explain to me why the logical conclusion i'm going to try to draw doesn't work. but if i follow yourlight line of reasoning -- your line of reasoning, when the department of parks and traffic in my district just built an intersection, when they did that they had to add a bunch of utility boxes that operate those lights. n.t.a. is planning on doing that all over the city. do we need to do an environmental impact report based on your logic on muni's root construction of signal loot -- route construction of signal rights all across the city? >> it would depend on whether they're replacing existing signals of similar size or whether they're going to be placing those improvements in an area that would cause pedestrian safety issues or blight in terms of aesthetics. if a replacement of an existing structure is very different than putting something new in an open area in the public right of way.

supervisor elsbernd: the intersection i'm referring to they replaced but it's significantly bigger, it's right in the middle of a pedestrian walkway. a little island. >> i don't know. if there was evidence of a problem, that's -- the statute and the case law, the supreme court guidance is really clear, you err in favor of environmental protection. if there's a close call, you do the environmental review, you exempt something only if there's no possible significant impact and it's in those cases, there are people that bring substantial evidence that there's going to be a problem, yes, it could require environmental review. supervisor elsbernd: ok. thank you. president chiu: supervisor wiener. supervisor wiener: supervisor mirkarimi can go first. supervisor mirkarimi: just one quick question. say the thing was approved, the repeal denied and normal processes proceeded, with regard

to the department of public works being required to issue permits and then if permits were contested they would then be potentially appealed with the board of permit apeels. what is insufficient about that process? >> well, if the exemption is upheld for the whole program, even though, as i've said, the whole program hasn't been approved, the environmental review would be truncated and it would be sugseg mated, piecemealed. any one box, i don't know, except in exceptional circumstances, may not be a significant environmental impact. so you look at box by box by box and it's the classic situation of making something look like it has no significant impact because it's so small. but together they add up. it doesn't provide for ceqa review. it's also a very cumbersome way to approve 726 projects. >> do you think, though, that based on any kind of protest, neighborhood protests, that would then petition for appeal

through the department of the board of permit appeals, that this would be sanitized of that potential argument because it would have not been recognized here at the board of supervisorses on environmental review, if it is then advanced? >> i'm sorry, but i'm not quite understanding. are you saying that at that point the appeal process wouldn't look at the issues that we're asking to you look at? it's hard to know what the board of appeals would do but their authority is limited to seeing if they comply with your regulations as opposed to whether there are significant environmental impacts. they would be required to see whether each one complies with the regulations that are in play at that point. supervisor mirkarimi: and you're presuming that the process would also discount this particular argument on environmental review, is that correct? >> i don't see how -- well, it's freaky -- tricky because the current process in my view hasn't been followed correctly because this appeal is being

treated as if for a single box when really it's the whole program of 726 boxes which technically before you is one box. that's not what san francisco appealed them. appealed the exrole program exemption and then for some reason the single box was tacked onto their appeal. there's nothing in anything we filed that says you're talking about a single box. so my point is that if you were to deny the appeal, it would be as to a single box and it may be that the next one that comes up, there would be another appeal before with you. because there would be different information about that box and does the categorical exemption filt? each time you do something based on exemption you look at the facts that have project. here instead of looking at one project, what you're creating is 726 projects. that doesn't make sense for the city or the public or the environment. supervisor mirkarimi: structurally speaking, if in fact an e.i.r. had been conducted and that the net

effect is that there were negative impacts or impacts that would not be seen to be substantial, then how would you envision that process then the neighborhoods engaging with d.p.w. and permit appeals? >> i think think at that point, go through the e.i.r. process, maybe you'll find that they can put these on private property or underground. but assume they look at alternatives and there's still the above ground boxes. there would be specific mitigation measures that would be -- would apply to each one with of these boxes. they could be applied by staff and if appealed they would -- the board of appeals would need to do is make sure those mitigation measures would be applied fairly. you wouldn't have environmental review in the same way. supervisor mirkarimi: but that would be would have to be applied box by box according to that scenario. >> i don't know -- they could try to get them all approved at once, too. if you did an e.i.r., why couldn't they pick the locations

and figure them out in one process? it was the city's choice how they set it up. at this point you're on the road to doing individual boxes without an overarching environmental review that takes a look at the big picture and what makes sense is mitigation and alternatives that's what's wrong with what's going on. supervisor mirkarimi: thank you. supervisor avalos: thank you, president chiu. this is a question for the clerk of the board. and that is that the apellant has raced -- raised an issue with regard to the notice of this meeting. the categorical exemption for the 726 boxes which is acknowledged by multiple -- by the clerk's office as memorandum to the attorneys dated april 15 which specifically references multiple locations, yet the notice that is on our calendar today only references one of the 726 locations. you can explain why the notice is only for the location on la

playia street? -- playa street? >> if you just give me a moment i will confer with my deputy and i'll answer your question in just one moment. president chiu: why don't we proceed to supervisor wiener. supervisor wiener: thank you. so i know you said you're not, but you are speaking on behalf of the -- >> i'm glad to answer any questions you have. supervisor wiener: one of the things that is a little bit different about this appeal, in most -- in other ceqa appeals where with we're trying to determine whether environmental review is necessary, it's also pretty clear that the city, whether it's this board or a different commission or body, has the power to approve or deny the project. so in the -- so independent of whether the environmental review the city can issue or not issue a building permit or there's

discretionary review by the planning commission, but clearly the decision making power is within the city and county of san francisco. i understand that our ability separate from environmental review toually approve or disapprove -- to actually approve or disalove in kind of project may be fairly limited by state law. that at&t as a public utility regulated by the cpuc has certain rights in terms of placing items on the public right of way. and so i guess my question is, let's say we order an environmental review here and it proceeds and then it comes to us and let's say we decline to certify it, we reject the e.i.r. is the project dead at that point? is at&t able to move forward anyway and place their boxes on our streets? and i ask this just in terms of the utility of environmental review and this kind of situation where we may or may

not have the right to approve or disapprove the project on the merits. >> there are a number of cases which involve projects like building permits that really don't have the power to deny but you have the power to condition. and this would be in that category. if at&t has applied to you, the city, for a permit, if it didn't need to do, that i don't think it woofment if it doesn't need to do it, then it's wasting everyone's time here. so at&t has applied for a permit, we have to proceed on the basis of that application and that's what's going on here today. the city's obligated to respond to their application if they prepared an e.i.r. and the city didn't certify it, i would imagine what i see everywhere else is the city will give direction but about what's inadequate about the e.i.r. and direct that if they want to continue with their permit application they need to proceed with that environmental review. in terms of whether the city can say we just don't want to consider your project, i don't know about that. it seems to me that what you need to do is look at

alternatives and mitigations. alternatives can, you're saying you haven't seen proof that it can be undergrounded or on private property but you don't have objective analysis of that. that's what you're going to get in the e.i.r. process and once you get that information and information about mitigation, then you're in a position to decide how these boxes should or this technology should go forward. but to say we're not going to do an environmental review because we think they already have a right to be there, i've seen that also with cell towers and i had a case in southern california where there was a question about placement of a cell tower and even though there was federal reemmings argued, the city had the power to apply its zoning ordinances and other land use preferences to something that they knew they couldn't say no to completely. supervisor wiener: so it's your position then that after an e.i.r., the city would have a right to place conditions on the project but not maybe or maybe

not actually kill the project. >> i have no idea. i was talking -- tauk taking your hypothetical. i don't know that to be true or false. but when you have an application, you follow ceqa which gives you the obligation to apply feasible mitigation and alternatives. now, if something's legally infeasible because you don't have the right to impose it, that would not be a feasible mitigation or alternative. but you certainly don't have all that information here today. >> maybe i could ask the question to the city attorney. president chiu: i think supervisor avalos wants to follow up on a question. supervisor avalos: similar question but it's a follow-up on that. the categorical exemption as far as 726 boxes, yet we're looking at a piecemeal way. how is that? isn't that a violation of ceqa?

that would have to look at the project in its entirety rather than the piecemeal fashion? >> john from the city attorney's office. i think this -- i would disagree with how this is being characterized as somehow piecemealing or seg mentation. that's a concept in ceqa that if the environmental review itself doesn't look at the entirety of the project, and certain pieces of it left out, excuse me, out of the environmental review, that would be piecemealing or segmentation. here the environmental review that the planning department did looked at the entirety of the project, it looked at all 726 cabinets that each will go through a separate ter mitt process. it's -- permit process. it's not that different from most projects that come before the city and county of san francisco where there are multiple decision or multiple permits issued for a project. but there's a single environmental analysis and as

long as that covers the entirety of the project, there is no piecemealing or segmentation. and so what is before the board today is the entirety, it's the categorical exemption for the entirety of the project. the way it came before the board today is because it was triggered by the very first permit that was issued in furtherance of this project. so without having that one single -- that first permit issued, apellants weren't in a position where their appeal was ripe and finally ready to come before the board of supervisors. supervisor avalos: i'm just concerned that, out of 726 boxes and we're looking at maybe individual permits, as the apellant has said, possible mitigation measures that are applied for permit, per box, that we are in fact -- would be creating conditions that would trigger environmental review.

>> again i would disagree with the apellant's characterization of d.p.w.'s regulatory process for review and any conditioning if necessary of permits as being mitigation. it's an adopted regulatory program of the city and county of san francisco, it's an objective program, it applies to all facilities and there's a recognized process. so it's not as if there are specific mitigation measures for a specific project that are actually linked to this. it's much like, for example, the city's suppression program which is a regulatory program in some other places that might be viewed as the mitigation -- supervisor avalos: but it's for 76 individual boxes and not for a network of 76 boxes. >> the categorical exemption

looks at the entirety of the project which is a 7 -- which is the 726 cabinets. it's the entirety of the project, whether it's a network or a project, it's the same thing that was analyzed. the entirety of what at&t proposes to do, even though they will come in permit by permit and go through -- supervisor avalos: and the fact that any one box may require some special placement or some special conditions for it to be installed, that to me is a mitigating measure and i'm not quite clear, to me if we're looking at a whole thing over the whole network and you have one box that creates a mitigating measure, you need to have a mitigating measure to put that box in, to me it seems like it would trigger an environmental review. i don't want to go around in circles. it seems there's a real difference in how we're looking at it.

>> i think what's happening, again john from the city attorney's office, is there is the apellants are equating mitigation that would be required under ceqa which is for a significant environment impact. there are e-- they're equating that with a permit review process that might impose conditions in terms of design, location, screening, various requirements such as that. supervisor avalos: and those different permits can be considered in an accumulative way as well, that have a larger impact citywide. that's i think what the link is that's being made. >> that's correct. and the categorical exemption that the planning department did look at considered the cumulative issues of having all of those 726 cabinets in the city.

supervisor campos: thank you. just wanted to have dish wanted to have a follow-up question on these this discussion about the notice. let me say that my experience has been that at&t has done a lot of outreach to various communities, certainly in my district a lot of outreach was done. but in terms of this notice, besides the point that you make about ceqa, is there a brown act issue here? because the notice is supposed to provide anyone who could be impacted by the government action that's being proposed, reasonable notice of what is being -- what could potentially be acted on and the way that the notice reads, it gives the impression that the only issue that you're looking at is the placement of a box at this particular location in when in reality you're talking about 726

boxes. so is there a brown act issue here that you have a process which probably under ceqa is the proper process but as written doesn't really give members of the public an adequate description of what is being decided? through the chair. >> through the president deputy city attorney, you both are raising a good point. in terms of the notice here. and i would agree that it is not -- it is a little less than crystal clear that this appeal is dealing with the 700 cab nets but i think -- cabinets but i think arguably the title of this notice says, it references the entire project, and then in the second part of the paragraph it discusses the cadex itself and what it does. and, for example, that it describes the project as

involving placing additional fiber through at&t's existing copper conduit and references communications cabinets, so this -- if you read the entire notice, it does reference the cadex that it's being appealed from. the way to correct this if you're feeling this is less than perfect would be to renotice the hearings. but the problem with that is that of course we don't know whether the remain -- whether where the remaining 700 and something cabinets would go so there would be no way to know where to send -- where to send the letters. >> through the chair. isn't the whole point here is that you want to give a more reasonable description of what you're deciding so i don't know exactly who the notices are mailed to. but for purposes of the brown act wording, maybe you do reference that, that will be,

you know, the number of boxes that will be placed in locations to be determined. from looking at this notice, because it references a project located at a specific address, and the word is singular, project, i can see how someone could read the notice and come out with the impression that in fact you're only talking about one box, i can also see how the point you make is that the reference to a cadex implies that there could be more. but again, the test here is, you know, what a reasonable person reading this language in the ordinary course of business would think. but again, this is an issue of how the city put together the notice. it's not -- it's nothing about the substance of the project or the project sponsors, it's simply about looking at this notice, it may comply with ceqa but i don't know if it actually

complies with the brown act. president chiu: supervisor mar. supervisor mar: thank you. i know my colleagues are raising a number of issues on how the semantics of ceqa law and other issues are really vegas and this is very subject -- vague and this is very subjective decision making. i sure feel like i wish with i had more time to look at the various definitions and to see the case laws, but one of the issues that is in dispute, don lewis and lisa gibson from planning will be presenting in a moment, but i just wanted to ask ms. brent holly to respond, it seems that san francisco beautiful is arguing that the project of the 726 new metal cabinets should not have been categorically exempted because under class three which you're arguing