certain amount of space to work around in and that necessitates the equipment room now becomes larger because we are putting people underground. more importantly, it needs to be sealed. moisture does affect this equipment. if anyone drops a can of soda on their keyboard of their computer, you know what happens when moisture gets inside a piece of computer equipment. those are the issues that necessitates putting it in a controlled vault and the representative spoke about what it does to placing it underground. i want to talk about the d.p.w. process we go through. it is not a ceqa process but something we live with every day. in 2005, the department of public works initiated the order and it's the bible we live by when we operate in your right-of-way. san francisco has adopted one of the most aggressive regulations

than anywhere in the nation. we operate in thousands if not tens of thousands of jurisdictions in the country. that surface mounted facility order is just that. i should point out the appellants were important in developing that order that we live by but something after the lengthy process and the people were apart of it, we came up with strict guidelines and there isn't a permit that's issued by the d.p.w. that doesn't review that process with us and then as was mentioned, there is a very lengthy comment period and an appeal process if anybody feels that that process was not solid. i would like to turn some of my time to our attorney who can address some of the ceqa issues. amanda. >> i'm from the law firm

representing and outside ceqa counsel for at&t. i have a lot of issues to cover. first on the definition of equipment. i won't spend too much time on it, but the title of the exemption says structures in it. this exemption relates to structures. the definition of installation of equipment in structures is actually the structure that is being installed or built or put into the environment. the distinction between this and the other exemptions is the word equipment. all your traffic control signal boxes would rely on. this is equipment. moving on to the exemption. there are two exemptions. first is unusual circumstances. under case law it is clear you have to have both unusual circumstances and that unusual circumstance results in in an

environmental impact. here, we don't meet the first threshold. this is not unusual. you walk outside, having a utility box in the right-of-way is not unusual. state law and your own code says where the utility equipment goes. by definition, it's not unusual. the way the law works, you don't get to the next question, but assuming for argument sake we do, that is actually the only place the fair argument standard applies, which i'll talk about it in a minute. that is a factual determination and that is the only place case law says you apply fair argument. with that said, the only impact we are talking about tonight is the fed ex. there is specific law that constitutes fair argument. urban environment does not constitute fair argument. this was clearly discussed in a case that was cited in bowman

versus city of berkeley. she actually lost that case so -- sorry, i didn't mean to end on that. >> thank you. i think there will be a number of questions. let me first start off and i'm not sure who i should direct this question to, but there has been questions about undergrounding and your position is something that at&t doesn't believe that's possible but we have questions about whether that is a case. i have a different question around the possible siting of these boxes on private property and i'm wondering if you could talk about that. i understand you have suggested there are issues around emergencies and difficulty of accessing boxes, but can you explain why you need to use the public right-of-way and why you can't contract with private parties to put these boxes on

private party? >> public private of way and directs public utilities to place their equipment. but as mentioned earlier, the surface-mounted facilities order does hold the threshold that when we apply for a permit to place something above ground, we must demonstrate we have reached out to private property owners to see if they would allow us to use their private property. when we do our site assessment, the first thing we look at where within 300 feet of this cross-connect cabinet could we locate a cabinet on private property with the following caveats. we do not place the equipment inside a person's residence or inside a structure that would impede our ability to reach it. private property is that, it's private. people -- property changes ownership. somebody could wake up one day and decide i don't want to allow them on my property anymore and

we found, actually, as we submit with every permit that when we ask for private property use, we have not found any takers. there are many reasons why that might be the case. one is we speak easements for your property forever and that goes on your title and when you try to sell that property in the future, you have at&t as having a position on your private property and when you go and try and sell that, some people view that as a detriment in trying to get that property sold. >> it's hard for me to imagine there is no property out there who is unwilling to negotiate for the right price an easement into their property. there are many examples of times when individuals enter a private property in order to conduct business, whether it be a mailman, whether it be a cell phone company bho's accessing a cell phone tower on a roof.

can you explain what is different from those circumstances, because that seems to be a contractual relationship that was established with the property owner? as a property owner, that comes with obligations as well. and under state law, those obligations require us to provide access. your service goes out and we are required to repair that within 24 hours. we take very seriously our ability to access our infrastructure in case of an outage or if there is an issue and there have been issues where we have been denied access where contractually, we have the right to be there but whatever circumstances might occur that don't allow us to get access to private property, so that presents an issue to us in providing the service as we are required to under state law. >> it's hard for me to imagine you can't work that out and obviously when we've got scores

of cell phone towers that are located on private buildings, if those go down, those create issues and those companies need to have emergency access into those buildings and in those contracts that is permitted as well. >> if i may, president chew, one of the distinct -- president chu, this particular cabinet will control the infrastructure for 400 homes in your neighborhood. so the issue becomes if the network goes down or you lose service in your particular house, in case of an emergency would you like your neighbor to be totally responsible for access for public safety reasons to have access to that particular box, controlling 400 homes in that particular neighborhood. and it is very different from a cell flight tower where we enter into relationships with commercial landlords because we are able to pass traffic to

traffic from one cell site to another cell site. if your phone goes down, there is nothing that we can't transfer your particular connection to another person. it is a very particular connected situation where this actually is the line to your home and it houses over 400 of your neighbors as well. >> i appreciate that, ken. i'm trying to understand if you have a key into the building, you can get in and have access. like having a key to a box on a sidewalk in my mind. >> absolutely. certainly with respect to multiple dwelling units nights where that particular box controls a particular building. we enter into an arrangement with that landlord because all the residents are housed in that particular facility. it's very different than putting a box on gary controlling 400 homes in a 10 or 15-block

radius. >> and one other follow-up question. i know there have been changes over the last few years in the number of permits you have requested. that number has gone done, is that correct? >> that's correct. >> and that is a function of tech tholing? >> somewhat. mostly as we went back and re-engineered the project to make sure we weren't duplicating any efforts. there are cross-connect boxes are close enough in proximity to locate one new cabinet and serve both out of one cabinet rather than putting two new cabinets in the right-of-way because they are within 300 feet of a new cabinet location. that is one area. we have been able to expand the reach of where we place the new cabinets so they can go within 300 feet of existing cross-connect box and last time we were here was 150 feet of

cross-connect box. >> could you talk about your developments in technology. from my perspective, we know that technology is shrinking over time. you can often get the same power into a smaller space than the size of the boxes we are talking about now. many of us have been hearing folks from the technology world that they expect that the size of these boxes should be able to shrink over time. how should we think about that? how should we think about the sheer number of boxes you are requesting us to approve? >> unfortunately, two areas of technology haven't shrunk and that is batteries and fans. and that's what makes up a considerable amount of these cabinets that were placed in the right-of-way. we have backup battery supply that allows us to have eightands

we are essentially providing a lifeline, we want to make sure that service does not go down. the second thing, with the same premise of undergrounding them, the credit can get very hot, as the temperature is raised, so we of cooling fans that allow was to cool the equipment -- they can get very hot. supervisor chiu: i have to say that your description does not match mine. it did not require as much battery power, did not require as much heating or cooling, so again, given how long this project has been, i am wondering if we are looking at technology that we're going to be living with the size of these boxes for decades to come. >> if the boxes were ever to

become obsolete, we are required to remove them, as well. we have to remove obsolete equipment, so to the extent that ever happened, where the technology will become obsolete, -- obsolete, it would be necessary. i would like to address the fact that technology has advanced, and things like video compression technology, the ability to do pair bonding and the ability to push out more in copper, that has advanced. there are two or three new products, all of which are the point of view -- all of which are deployed. these are simply software

changes. supervisor chiu: thank you. supervisor elsbernd? supervisor elsbernd: thank you. if i can, ken, start with you. using case law as president to help us to understand what we are doing here -- using caseload as president -- case law as precedent. cities that are being asked to apply the exact same lot as we are today. the urban settings of california? >> sure. we have deployed these in every major city of california, and, in fact, we are now in the central valley, up in your rica, other areas -- up in eureka.

there was deployment about three years ago, and we had issues before the board. we withdraw the application and continued to build in other cities. we have statewide ceqa laws, as you all know. most of the cities, over 260 cities, have not required any ceqa at all. as the total vacations kroatian, a utility. there are four or five cities that have required a ceqa review, and they have given us an exemption. supervisor elsbernd: you have not had to do an eir? >> we have not. supervisor elsbernd: thank you, ken. if you can complete your

analysis? >> sure. in fact, i do not think i got to the cumulative impact, but to get to it, there is an evidence standards, which i think i sort of mentioned, but the only punitive impact that has been addressed brings us back to what i was going to talk about in the context of unusual circumstances, because the same set of case law applies about the aesthetics or cumulative aesthetics. aesthetics is judged according to the immediate surroundings. all of the cases say you must consider existing surroundings. moreover, in an urban environment, it must be consistent with the urban environment. these are consistent, as your planning department has found, with the urban environment. it is not a question of the is the added duty of something that someone likes or dislikes.

-- it is not a question of the aesthetic beauty of something that someone likes or dislikes. that it is consistent. there is nothing more to it in terms of an opinion about that. it does not raise a fair argument to overturn the use of the exemption. that also applies to cumulative impacts. there are cases that say that the impacts have to look and the environment, and the aesthetic law cases apply to them, as well. it was referred to does -- as a "shed," but it is visible from

the trail, and the mitigation had been imposed was not effective in keeping it -- that is an opinion based on fact. this is part of the definition of fair argument, which gets very confusing. this does not count as evidence. in those circumstances, in a rural environment, it was found to be an impact. this was taken into account. this is consistent with the urban environment and all of the caseload. you simply are not in this case, so that answers it. the two cases include one

against the city of berkeley. supervisor chiu: that is interesting, because that is cited by the opposition, where the court rejected the opinion that was being put forth, and it actually says the personal observations on non technical issues can constitute a substantial evidence that we can consider. >> correct. it is found whether you can see before a koran aluminum cover from the hiking trail, whether that counted as enough evidence, and they said that was an opinion related to fact and that it was enough, so i am distinguishing that in a rural setting, introducing a new aesthetic element, when you're testifying as to the visibility of actual question, not just "i think it is not attractive" can

be taken into account as one element. supervisor chiu: so you are suggesting that because we of the density, you can put more boxes in there, and no one will notice. that is the argument? >> in the existing environment, correct. at a telecommunications cabinet where state law in your own code dictates this, that is not unusual and does not introduce a new aesthetic. supervisor chiu: in understanding supervisor elsbernd's point, but we do have of the densest neighborhoods. we have a lot packed in. i think the concern that we heard is when you're putting in 726 refrigerator sized boxes, this adds an awful lot to our

neighborhoods, but we will continue to hear. >> to the extent to address your question in terms of is it just too much because there are too many of them, i agree with the plan department, and i know there was what constituted the right of way. it is a certain percentage of the sidewalks, and this is a good one. it is not on the sidewalk. it is off to the side. it is the amount the sidewalk that is actually taken up which is minuscule. i recognize it is a big city, but 726 cabinets dispersed, which was also okayed by the planning department, they are dispersed. where do you get to the point where they are not dispersed? three on every block? who knows? 726 are dispersed. >> -- supervisor chiu: and as i

am talking about it, we are talking about one every block? give us a sense. >> they are dispersed. i cannot give you anything more than that, but there is a visual to show you about the dispersal. >> president chiu, we can certainly provide the map, but it certainly changes by supervisory -- supervisorial district. in those instances, it is 1 mile away. in large quarters, they may be four or five blocks away, but you tick in the league do not have this within a couple of blocks of each other. supervisor chiu: it is a 300-

meter record of it? >> no, not at all. i think supervisor mirkarimi asked one of the questions about what has changed from the last time? what has changed from the last time we were here is the willingness to explore the space in which with the distance in which we could move this new infrastructure from the existing infrastructure, so now, we can place these new boxes within 300 feet of the existing cross connects, which in many instances will take us a full city block away, which gives us tremendous opportunity and tremendous latitude to work with neighborhood associations on box placement, because they need not be side-by-side. we can look at alleys, and we can look to greenspace. we can cover it by shrubs, and

we have some of the inflexibility in those 300 feet. supervisor chiu: supervisor farrell. supervisor farrell: thank you, supervisor chiu, mark. i know you have been in district two, and i know people have appreciated working together. that being said, there are still a lot of concerns, so i went to flesh this out with you and see what you envision happening. >> sure. an example where we have actually gone through the dpw process. this was in district 1. we have an existing cross connect box. we met with the condominium association.

they very much wanted this, a competitive choice. we said we would ideally like to place it next to your existing cabinet, but we can work within 300 feet to find a place. the existing cabinet is off of the sidewalks and behind a hedge row of bushes. we were able to go in and place a second cabinet. we went through and met with them. we met with the neighbors and put a public notice before we filed with dpw and got their input if there were any complaints or concerns, and once there was none, we filed with dpw, but that kind of interaction with the community, it need not be next to the existing box. in this instance, it was an ideal location because it was already off of the sidewalk and screen from view. in other conversations that we

have been having, we have gone out, and we have even brought a sample of sarb-ox and literally put it down the street, which another organization did for us. here is what makes the most sense from a technological standpoint. which one of these works, and if it works, we will submit it to dpw. supervisor farrell: quick question. in terms of dpw, who is getting notice here? >> good evening, supervisors. this is three letters feet from the proposed location of the

cabinet. supervisor mark: ok, i want to delve into this a lot more. what if there is no agreement. how far do you take it down the road? my understanding, they may issue it. ultimately say no, what do you envision the process being? >> first of all, this is a three-year bill. just to piggyback on what he said, the current notice requires that we posed placard's. at&t has voluntarily given a mailing to all property owners within that same 300 feet, so we are also expanding this. but this is doing mailings to all of the residents, as well. this is a three-year building

project. we can easily start with the low hanging fruit. we can start there. if there are appeals in the permitting process, we will work through those of the process requires to mitigate any kind of customer concerns. one question we get, does it emit rays or radiation. so the answer those questions on the spot, or dpw will say what is your concern? do we need to plan bushes or do screening. ultimately, people appealing the decision, anybody can appeal something in san francisco, the way the order said.

you can also work with dpw about who is standing to appeal that decision, and we will work with that to mitigate it. we will move on and go to another one of the 726 and start the process there. >> i guess that is a key point to me -- it supervisor farrell: i guess that is a key point to me. "we will not put it here. the appeals process, somebody may appeal to the board of appeals, and they say, no, we are going to deny the appeal. i am asking you in public now. how else to the