[dog barking] [rocket whistles] [boom]

>> in the evening. welcome to the april 20 meeting of the board of appeals. the presiding officer of this evening is kendall goh. joining her is michael garcia. are we on?

we're also joined by commissioner frank fung, chris hwang, and tanya peterson. we also have the deputy city attorney, who will be advising the board this evening. to my right is the legal process clarelk. -- clerk. we're joined by department of representatives in the front row, scott sanchez, the zoning administrator representing the planning department and planning commission, we're joined by the assistant to the zoning administrator, the senior building inspector representing the department of building inspection. john is the manager representing the department of public works bureau of st use and mapping. at this time, i will go over the

meeting guidelines and conduct the swearing in process. the board request that you turn off all cell phone so there will not disturb the proceedings and that you carry on conversations in the hallway. the roles of presentation are as follows. the permit holders and respondents each have seven minutes to present their cases and three minutes for rebuttal. people affiliated with these parties must include their comments within the seven-or three-minute period. people not affiliated with the parties have up to three minutes each to address the board. please begin to the a end of the microphone. -- please speak into the end of the microphone. to assist the board in the preparation of minutes, you are asked to submit a speaker card or business card to staff when you come up to speak. cards are available on the left and right sides of the podium. the board welcomes your comments and suggestions. there are customer satisfaction

surveys on the podium for your convenience. if you have questions about requesting a rehearing, please speak to staff during a break or after the meeting, or call or visit the office. we are at 1615 mission street. this meeting is broadcast on sfgtv channel 78 and broadcast again on fridays on channel 26. dvd's available for purchase. now i will swear in anyone who intends to testify. if you intend to testify, please stand, raise your right hand, and say "i do" after you have been sworn in or a firm. do you solemnly swear or affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth? thank you. the monitor will be on in a

moment. thank you for your patience. item number one, public comment. is there any member of the public who wishes to speak on an item that is not on the agenda? please correct -- please step forward. >> yes. is sfg on? >> the monitor is not on it. are their public comments? item two, commissioner comments or questions? item three is the adoption of minutes. before you for discussion and possible adoption of the minutes of the meeting of april 6, 2011. comments, commissioners? president goh: we move their adoption. >> thank you. the motion to adopt the minutes. commissioner fung: aye. commissioner garcia: aye.

commissioner peterson: aye. commissioner hwang: aye. >> i forgot to ask for public comment on the minutes. is there any public comment on the minutes? thank you. that motion carries. moving on to item four, the adoption of findings. subject property at 156 27th avenue. appeal number 11-004, jeff & nicole cooper v. department of public works bureau of street use & mapping, decided march 16, 2011. at that time, the board voted 4-0-1, president goh absent, to grant the appeal and revoke the permit with the adoption of findings at a later time. subject action, wireless box permit no. 10wr-0021, issued on september 08, 2010 to nextg networks, inc.

we will start with the permit holder, who why understand has some objections that she would like to speak to the board about. you will have three minutes. >> thank you very much, president goh, and commissioners, for this opportunity to respectfully submit our request for revisions to the proposed findings in an effort to make them more accurate. we have five small items. the first one is reminder, just being the name, which is currently in correct. the entity with the rights in the state of california, as well as with the city of san francisco through a permit, is nextg networks of california inc. we were listed incorrectly and

there was a small correction in paris route to we would like to fix. we did request to have findings of the status so that it is clear in the record that we do have a cpcn and the upc from the city of san francisco. that was rejected. we are requesting that. we are requesting removal to the reference of the power equipment at a different location on this block because the power equipment is not covered under the permit that was issued. while that was revoked, the power equipment does not fall under either the previous or current legislation, which applies only to "antennas and related facilities and equipment used to provide or facilitate the provision of personal wireless service." this is equipment similar to that of pg&e. we request that be removed. we are requesting removal of the

analysis under the new legislation public works code 25 because it is a bit choppy and does not start from the beginning, having to do with the application requirements, and so the analysis could be revised to be more complete and cover that. last, we are requesting a small revision to the language of the decision where it states that we're able to reapply because of this change in legislation, but pursuant to the video, it seemed clear in conversation between the city attorney and vice president garcia that we would be allowed to reapply because there was an error made by the city. so that could be corrected, and it did not relate to the legislation. those are requests. thank you again for listening to them. if you have any questions, i am happy to answer them. >> we can hear from the

appellant now. you also have three minutes. >> great. thank you for taking the time. my name is jeff cooper. i'm the appellant in this case. i want to comment on item 3, the protest of the findings mentioned of the supporting power equipment installed across the street from my home at 156 27th avenue. i found is a little bit rent. our appeal was granted because the department did not review the impact of the equipment installed on a protected block. when the planning department reviews a wireless permit publication, i assume they would review the totality of the equipment installed to determine the impact. 863 41st offers a good example case. i have their conditions of approval on the overhead here. this document shows that the planning department's conditions of approval, they required a

flush mount design, they requested a match, and neither of these were met. they also required sf 0, 2, and 3. this is the document that the planning department referenced, the detailed drawings of the equipment that nextg is -- intended to install. if you go to page 3 of this document, nextg clearly advise the equipment they intend to install as part of this installation. the plans in our case are exactly the same. this document details the equipment to be installed at 156 27th avenue and 161 27th avenue.

the call out the latter specifically. this is theok document the planning department should have considered. the planning department should have reviewed the totality of this project to determine the impact. the supporting equipment installed at 161 is all part of the same installation. it was put there for the wireless antenna and installed at the same time as the wireless santana, by the same subcontractor, and it was nextg the proposed the equipment. they point out that 156 27th avenue is the only address mentioned on the actual permit. initially, my neighbors cried foul, as they did not believe they had a permit to install the equipment at 161. we complained on this very matter. dpw sent as this document, which outlined the plans for the equipment at 161, which nextg

submitted. dpw informed us that because they submitted this, all the equipment was included underneath of the same permit. [tone] thank you. >> mr. cohen? >> in this case, the permit issue for the subject location includes the installation of all facilities as identified under the plans. it would include not only the antenna, but the supporting equipment on the secondary pole. that is the opinion of the department and i will be ready to answer any questions you may have. we have no additional comments related to the findings. president goh: do you have any opinion on the entity of the permit holder?

i know that her brief, she identifies herself as the director of nextg networks inc. is there a difference to you? >> that is a legal question. nextg networks is doing business as nextg networks of california. there may be a difference. i cannot speak to that. president goh: thank you. >> is there any public comment on this item? commissioners, the matter is segment. i want to let you know that a revised copy of the findings were distributed for your consideration with the change in name. it is highlighted with the date, today's date, if you wanted to consider that. comments, commissioners? president goh: my only comment

was regarding the name. i think that is a fair name. i was comfortable with the findings as drafted. >> i agree. i'm comfortable with them as drafted. >> we should put on the record that i did view the video. we will make the motion to adopt the findings as drafted. >> is that with the revision to the name? >> with the revision to the name. >> on that motion by the president to adopt the version of the findings with the change in name dated 4.20.11, commissioner fung? commissioner fung: aye. commissioner garcia: aye. commissioner peterson: aye. commissioner hwang: aye. >> that motion passes. five-zero. moving on to item 4b.

subject property at 124 lower terrace. letter from jim flanagan, requestor, asking that the board take jurisdiction over wireless box permit number 10wr-0079, which was issued on november 15, 2010 by the department of public works. the appeal period ended november 30, 2010, and the jurisdiction request was received at the board office on march 24, 2011. permit holder, nextg networks, inc. we will start with the request for -- requestor, mr. flanagan. you're three minutes. >> thank you for hearing me. i'm the appellant. i live at 124 lower terrace. i am here today, i reminded because i live that the top of one of the minister cases in san francisco. i -- it was inundated with

tourists. it was one of the reasons it was called out in the plant to be included as an excellent view and one of the reasons i believe as the basis of my appeal. more and -- my request as submitted to you on march 24 outlines what happened with this situation. i learned of the project when i came home and some construction going on in my yard. i tried to contact nextg. i did not receive any call back. i contacted my supervisors and subsequently contacted the department of public works. at that point, numerous back and forth, i also investigated nextg and other work they have been doing. based on an e-mail from the department of public works, on the 21st, "the public has no opportunity for repeal." i believe the department of public works to be an exceptional source of a

competent police to look. i thought there was no way to appeal it. in addition to this, nextg networks said they would ameliorate my concerns and move the box. i thought it was ok. i sat tight. i did some creature -- research and i found out that they had a long history of litigiousness doing things all across the country. i was told that nextg can do whatever they want to do when they do not need permission from the city to do anything. i thought there was nothing i could do. there are two appellants who were also granted jurisdiction requests for similar wireless boxes, one of whom is here today, mr. cooper. i learned both of them were granted the request and one went on to win a revocation. i thought that i could do the same thing. i speak today for my neighbors who have all seen this filing

and agree with our comments. i will put up on the screen -- it is on page 5 of your presentation that i handed out. in my opinion, the planning department is supposed to deny a permit if there is any diminishment of view or obstruction of view. i show here at the top of the steps, the box that nextg -- there is clear -- it is clear to me there is a did it -- a diminishment of the view. i have some other comments about nextg's reply. i don't think i have enough time, so be happy to answer the questions. >> you saw a copy of the permit- holders's brief? >> i did see it. yes. >> they refer to a number of instances where they met with you. do you dispute any of those? >> they did meet with me. they led me to believe they

would move the box to a different place, which is why i withheld from investigating. the combination of them assuring me they would ameliorate the situation with my instruction that i could not file an appeal made me say there was nothing i could do. they did meet with me. >> ok. thank you. >> anything else? thank you. >> ms. ernst. >> thank you, commissioners. i'm the director of government relations for nextg net for spirit in regards to this request on it differs from the other two you have heard previously regarding nextg. we were in contact with him months in advance of the permit being issued. i received a voicemail from him in july, returned and left a message that day, according to my records. we began corresponding on august 2.

on august 29, we met with him. at that time, i was evaluating the location for the visual impact. this is from his living room. we're looking at the polls. the steps are down the block. there in the opposite direction. it is not right there. one of the ones we looked at was closer to the steps. from this photo, you do see the wooden street light pole. the antenna would not be visible from his location because it is too high. if we moved across the street, he would actually see the antenna more and it would be in the view that obstructed area from his location. our box equipment, and we have verified this, is low enough on the pole that is down near the street signs, and it is blocking view of the pavement from his

house, but not the view of the city. that was our major concern. we looked into other alternatives and we are not able to find any that would work from a technological perspective without impacting the view of his neighbors. he also knew of this location during the appeal period. did receive our permit, which was properly approved, around november 15. shortly thereafter, he called me, swearing at me because he was unhappy that we have received the permit and started construction. i did not realize that. i spoke to our construction crew. they informed me that they were under orders from the implementation team and it was because we were not able to find an alternative that would work for me very technological impact standard or visual impact standard. so, those are the two issues, notice and visual impact. his complaint also discusses

noise. we have had three incidents of vandalism. one of his neighbors has alleged to our technician that mr. flanagan was disturbing the box. that has caused an excessive noise. we visited three times over the last few months. we have also replaced the fans with quieter fans so that it would have less noise impact. that is what we have done at this location. we are asking you -- [tone] and not grant the request. thank you. >> what is actual notice? >> actual notice -- even though there was no requirement to provide notice, he had actual notice that we submitted a permit to this location and he had actual notice when we began construction that the permit had been issued. >> i'm not clear on how he got notice that you had applied for a permit. there were some negotiations

that were taking place and he had knowledge that nextg intended to put some equipment somewhere in the vicinity. did he know that a permit had actually been applied for? >> i cannot speak to his knowledge. from my standpoint, we have been discussing the site that was applied for, and so it was always spoken as the site that was applied for. >> ok. thank you. >> can you put your photograph back up, please? >> yes. >> i am trying -- i cannot see the box. >> the box is not in this photo. this is the one i took on october 29. this is a photo that i asked -- the perspective is much lower in the doorway. i was trying to just get an idea

today -- a composite photo that tries to show approximately where the equipment is by judging the utility pole and using a stop sign that was in both photos as a marker to get an idea where that equipment is and how it impacts the view. >> that is this photograph that you put together. >> that would be the visual from his living room? >> yes. >> ok. >> our concern is the view of the city into the horizon. >> right. i get it. >> the fan that you use for the equipment, is that the equipment through the department works department -- public works department with regard to sounds? >> yes. we have to comply -- i don't know that they necessarily have

-- under the old evidence, i don't recall having a requirement that we showed them, but we have to comply with the order. tests were run to ensure the equipment was in compliance with the ordinance under the permit. >> are there multiple models of that fan that is utilized? >> yes. they were installed with 37-what fans -- 37-watt fans. when we received inquiries about noise, i asked our technician of how we could lower the noise. we had found a different version of the fan that will lower the noise. that change was made at this location, as well as doing software differences. >> it is safe to assume the equipment has since been painted? >> yes. in painting it, it was originally painted brown in order to match the pole.

that is why you see the brown box in the photo. we re-evaluated it and thought that a light gray would match better because they fade to gray. >> thank you, commissioners. a couple of corrections to the brief for jurisdiction request. the appellate made some suggestions as it relates to noise in this case. the noise from these facilities are governed under the police code for the newly regulated noise ordinance. this is the first time the department has been informed of an excessive noise complaint. if this is the case, we will coordinate with the department of public health to do an evaluation for this location.

moving forward, the applicant -- the appellant has stated about the inability to underground this area in the future. as he has suggested, the pole is currently a joint pole. as part of that agreement, if the city decided to underground the district, all over had polls -- overhead poles would need to have an alternate location for these installations. there was a comment related to the e-mail from the bureau chief, where they are pointing specifically to the statement that there is a limited ability to appeal.

this e-mail was in response to a hypothetical question and posed by one of the board members. historically what we have found from practice from these wireless companies is, they would apply for 10, 12 permits at one time, wait for all of them to be approved, and install all these facilities at once, usually after the appeal period in these cases. not knowing the location, not knowing that information, the bureau chief provided a generic statement that wireless companies would apply for coming in accident -- in essence, a grid, in order to provide a functional network. the department is here to answer any questions you may have. >> are you allowed to commend the day you get a permit, to start work?