that's where the challenge is where the department faces and we recognize that. >> mr. quan, based upon -- are you finished? >> yes. >> based upon the map that you showed us, if it was midpoint of that block, it wouldn't have reached -- >> there's a fundamental

difference again, i want to try to clarify, for food trucks, they use the location, what they propose and use the property corners and go for 300 feet for carts, that's notification requirement, this is from 2nd to first street, using the midpoint there, 300 or if that block length is more than 300 feet, all the property owners along that corridor is notified in addition. >> that's not really that pertinent to my decision-making, but i'd like to go back and -- because you brought up a number of cases where you thought that the input of the appeals influenced the criteria a little bit. i'd like to go back to one on bao*el street that the department looked at the 300

foot and used it as a fixed criteria. this is the one where the hamburger -- >> that is correct. >> and therefore those that were just outside that a little bit at recon center and other places were not considered like food within the analysis of the department. i don't remember the indian store. >> there was a slight difference in that case because what happened is the restaurants themselves are in the interior of the building significantly further in from the entrance point and that's why in our evaluation, it did not seem appropriate whereas this restaurant has its front door on mission. >> okay. >> i have a question, so the representative from mixed greens mentioned that they had turned in a menu that showed the saigon sandwich on it to dpw, are you aware of that menu? >> that may have been the case,

again, this is processed by my staff, so maybe it was in the file, i would not know that to be the case, however, it was pointed out that there were like foods as part of the hearing process. >> so, when someone submits to dpw, does that information then go to the permit holder as well, or does it stay in -- >> right, in this case, it was presented at the hearing, so where the applicant was also involved. >> okay, thank you. >> i think i missed that, in this case, it was where the -- >> it was presented at the director's hearing. >> the menu with the saigon? >> that was my understanding. .sing is that what you're saying? >> yes, i believe so. >> is there any record of that >> i have to go back and check because obviously i had a limited file that was provided to me when they were compiling it and i wouldn't have that information with me right now

from the last time i checked. >> i have another question raised by one of the public comments about the liability, the premises liability issue on the sidewalks that's within your jurisdiction. >> that's correct. >> so, if there is any issue if someone falls on the sidewalk in front of 560 mission, it's the building's problem? >> the property owner is responsible for the sidewalk and they'll be subject to a potential lawsuit if there's trip and falls and such. as it relates to the mobile food facilities permit, the permitting program, okay, there's no requirement as it relates to liability, additional liability insurance by an applicant to provide to either property owners or the city to indemnify in this case, so that's written in the law, still does not necessarily mean

that when there is litigation for an accidental incident to happen on the sidewalk, the property won't in for example the individual as named in this case. >> okay, thank you. >> i have a question, would you please clarify if you can what the existing food cart/truck situation is right now at that location and the operating hours as such. >> give me a second. there are currently two additional food trucks out there, one is a co-truck that comes and some of co-sandwiches and other foods and as i stated early in the morning and the other one was authorized under

a permit to be out there i believe mondays, wednesdays and fridays in the early afternoon hour, around lunchtime. >> one is there only in the mornings and the other one is there three days a week at lunchtime? >> to my belief, that is correct. >> and do i understand that truck is related to the group that owns mixed greens or did i misunderstood that? >> right in front of them, okay, thank you. >> commissioners, the matter is submitted. >> you know, the more we hear these food truck cases, the more confusing it gets.

i guess my thought is that the menu as presented to me does not appear to be like foods to those in the immediate area, and there are going to be issues of this program i think that requires some legislative tinkering to clear up issues. >> well, i completely agree with that and keep hoping we're going to see something happen, but i mean, i would agree that one seasonal sandwich in a restaurant, the main focus is mainly salad, i wouldn't necessarily they would feel threatened. i guess i do see if this truck

is serving chips, cookies, juices, tea, soda and water, yes, that's potentially going to take away business fwr the others and i think we've had a case that we allowed the cart but restricted some of what they could sell, do you remember that? >> yes. >> do you remember when that was? >> very early on, in the north beach area, was it? >> there was a particular type of burger that you dropped from the menu. >> that's right. >> so, i understand wanting to have the bhoel array so you're potentially more attractive but if you can kind of put it where the food is not totally competitive, that might make it more appealing to me. >> so, what would your suggestion to be, to not sell chips, cookies, water, soda, juice? >> essentially to sell those dishes that would be considered

vietnamese dishes. >> vietnamese cookies would be okay if there are -- >> are there? >> i would assume so. >> that's the thing, i'm not an expert. >> i'm not either. okay. any other comments? okay. >> i just want to say for the time being, 300 feet has to be 300 feet, i mean, i appreciate that there may be businesses outside of that, but that is what it says, and if we start saying, well, it's only a few feet out, i think mr. quan or somebody said how far do you go, you end up with a slippery slope which i don't think was the intent of the legislation. >> i interpreted his comment there that perhaps one should consider it if it's slightly beyond. >> yes, but --

>> my view of this is it is not like food, i've been to mixed greens and i've worked many hours in that 560 mission building and i like mix greens very much, but i don't think the food there is the same as what is being presented in the application and the appellant's permit application. at the 300 mark, i think it is within the right of the dpw to consider it, at the same time, i viewed that 300 radius mostly for notice purposes and it was confirmed that outside that firm, that company was not -- that restaurant was not provided with the notice to object to have been that right, that information, but i do agree that it is -- i agree that it is within dpw's

discretion to consider that as it is within dpw's discretion to consider what's within the 300, not necessarily being a dispositive factor for purposes of determining whether a permit should issue or not, but i think in this case, the saturation issue doesn't present itself as compelling to me and i don't think the like foods within the 300 feet, even if dpw could consider it is sufficient here to deny the permit. i think also i'm concerned too that we don't have a full record with respect to the saigon sandwich, so i'd like commissioner fung expressed, it's not before us, it hasn't been presented and it's not at the record at this hearing and we are looking at it from a de novo perspective, for all of those reasons, i would move to overturn the department and grant the appeal.

>> any conditions? >> i like the concept of limiting the menu simply because it does compete with some of these others, but i would leave that to you two to propose since you raised the question. >> do you want an amendment to your motion then? >> yes. >> so, then i would move to amend the motion to require the permit holder to limit its menu to strictly vietnamese dishes and not to carry any generic items such as chips, cookies, tea, soda, juice and water, coffee unless it's vietnamese coffee. >> i think it doesn't make sense to allow one food and not a drink because then somebody has to go to two different places to complete their lunch. i would accept the reduction of those other ancillary items because they don't have

anything to do with that particular ethnic food, but i would allow the drinks to go with it. >> okay, i'll accept your amendment. >> i would accept both of those modifications. >> so clarify then for our purposes here, what's being struck from the list of items is -- is it those specific things you want mentioned or those things only if they're not of vietnamese nature? i heard two different things so i wasn't sure which? >> so, i guess maybe to phrase it that the permittee be allowed to sell vietnamese items in addition to beverages. >> okay. >> does that work? >> vietnamese sandwiches, right? >> well, what if they had vietnamese cookies? >> well, the application mentions chips and cookies so we would be striking that. they have five types of drinks on the application. >> that would probably be the

simplest way to approach it. >> okay. >> okay. >> and is there a basis for this motion? >> that there is no like foods within the 300 foot radius and the saturation is issue with respect to the other food mobile facilities is not an issue given there are two mobile food trucks and neither of them has like foods as well. >> okay. so, we have a motion then from the president to grant this appeal, overrule the denial and issue this permit, first with a condition that the sale of

chips and cookies be struck from the scope of this permit and we have a finding that there are no like foods within 300 feet -- within the 300 foot radius and a further finding that there's no saturation of mobile food facilities in the area. okay. on that motion to overrule the denial and issue this permit with that condition and those findings, commissioner fung? >> aye. >> commissioner hurtado? >> aye. >> vice-president lazarus? >> aye. >> and commissioner honda? >> aye. >> thank you, the vote is 5-0, the denial is overruled and the permit will issue with those conditions and findings. thank you. >> thank you. moving on then to item 5, appeal number 13-019, benny yee versus the department of public work, bureau of street use and mapping, property is multiple locations along 22nd avenue and

irving street protesting the issuance on february 12, 2013 to sbc pacific bell engineering, utility excavation permit. permit number 13exc-0820 for hearing today. we will start with the appellant's agent, you have 7 minutes. >> thank you, my name is george lea, i represent benny yee, mr. yee is a s owr and one of the owners of the affected properties. he is a well known community leader, a member of the sunset outer merchant's association and has served on the san francisco redevelopment agency in the city and county for 13 years. there are two issue that is are raised in the appeal, one is one of notice and one is one of -- as to the merits of the matter on the placement of this

surface mounted facility or smf and one is tempted to think of the notice issue as simply procedural, but we would urge that it is more than procedural, it is substantive because the appellant as we will find out throughout today, that many others in the affected community did not receive the notice that is required by both the surface mounted facilities order and at&t's memorandum of understanding for which it is bound. this notification requirement is in fact substantive because at&t was granted the ability to expand its telecommunications network on these assurances that it would comply with certain notice requirements, and having made those assurances, we need to make sure they're held accountable when they fall short of notifying effected and interested persons, so the notice issue is in fact

substantive to the issue. we absolutely dispute the dpw's position that mr. yee received a june 12, 2012 e-mail notifying him that there was going to be a hearing to decide the suitability of this location, the ability to object, had mr. yee been notified of that, we could have raised many of the issues that we are raising in this appeal, so it is quite unfortunate that there mr* yee was not given that opportunity. had we been notified, we can point out the various flaws in placing this smf at the location where it currently was. at&t fell very short in its notification procedures and following through with its own procedures, during negotiations that at&t had with mr. yee was fond of boasting that they don't negotiate with anybody, so since at&t apparently has

unlimited resources to handle matters like this, perhaps it could have developed and done a little bit more to make sure all of the affected residents and property owners of this very busy commercial area would have been notified and had the opportunity to object. moving on to the merits of the matter, whether or not the location of the smf as it has been placed was a good or a poor location. apparently, this was the second site for this surface mounted facility. the first location was across the street at the 22nd and irving market and the owners there objected to the location because it was a busy loading zone. and so the at&t sought to have it relocated across the street. the very rational for which

at&t agreed that the first location was a poor location applies so of the location where it is now, it is adjacent essentially to the u.s. postal service facility sunset station, it is very highly trafficked, very busy sidewalk and area, people coming and going at all times and on the weekends. the department of public works admits in its brief that the lip and the edge of the smf as it has been placed does pose a risk of tripping, but someone states that nothing can be done about that. i think that that is absolutely unacceptable. it's absolutely unacceptable for an smf to be placed in a not well considered location where there's tons of foots traffic f, instead of placing it in fropt of a market where there's a loading zone, now we

have it in front of a postal facility where people are coming and going, carrying packages and carrying packages out of the facility, getting -- riesling to try -- trying to get in and out of cars where the smf is presently located, if a notice had been done, we could have pointed out that dpw or at&t should have sought a location that has less grade and is not as frequently traveled, and therefore doesn't present the same amount of lip for tripping hazard as where it is now and on the liability issues, again, there's been no suggestion that at&t would indemnify our client or how that would be handled. so, the idea that this was an alternative location, it was very poorly chosen, sort of

haphazardly and the amount of traffic that's going to be generated in that facility was not considered. as we've pointed out, again, it impedes foot traffic, it makes it difficult for people to park in that location, whether there's going to be a high amount of turnover and secondarily as we put in our brief, the facility itself attracts vandalism, garbage and it presents a serious challenge to the people, the donut store owners in that same area who are already challenged with efforts to try to keep up maintenance of that area. so, again, on the notice issue, i think we're going to hear from several affected community members and i think it will demonstrate pretty clearly the notice that was purported to

have been given in this case fell very short. in this case, at&t made certain commitments in its memorandum of understanding, we urge this board to hold at&t to those commitment, the order in issue, it says the department will ensure that persons affected by the installation of the surface mounted facilities will have an opportunity to be heard. the order ensure, it does not say make a good faith attempt effortbacker effort, it does not say make a halfhearted effort, it says ensured because it is very important. i urge you to reverse the decision in question. >> councilmembers, it includes the addresses to which they indicated notices were made, are those correct addresses for

your client? >> whether or not -- yes, those are correct addresses but -- >> but he did not receive them. >> he did not receive notice of the hearing. now, what happened is there was an initial notice about the desire to place a surface mounted facility on that location generally indicating that further hearings may develop, mr. yee then immediately, well, when he was notified by a tenant who received one of the mailings, he then contacted the department of public works and registered a protest in the form of an e-mail, but there was never any follow-up, the next thing he knows, there's digging crews outside his sidewalk. >> i have a question, i don't know if it's going to go anywhere, but was there aalternative to this location that your client thought would be preferable? >> well, we're not engineers,

nor are we prepared at this point to offer another alternative location at this point, but certainly one that doesn't involve the amount of foot traffic na the u.s. postal service generates would be a starting point. >> okay, thank you. >> thank you. >> is there a representative here for the permit holder, please step forward. >> good evening, commissioner, my name is aman da and i'm here on behalf of at&t. so, to address the two issues as noticed and then the substance. first as to notice, the [inaudible] representations, at&t provided extensive notice regarding this site and more broadly extensive notice regarding its projts throughout

the city. as was stated in the letters, there was more than 100 meetings on this topic, they met with the speak which is the neighborhood association in the area for more than two hours about this location and a few others. the first location was noticed, it was protested, someone received the mailing, they met with the protest tor in front of the market, they came up with a better location, they moved it in a better location, they noticed the new location, the original protester is now agreeing with mr. yee and protesting the new location even though it's a location at&t worked with them to determine as a better location. so, we sent all the notices that we agreed to under the mou, we have ms. torres attest she put the notices in the mail, mr. yee's own letter says he received the notice, his tenants received the notice, thus they were mailed, other

tenants say they're multiple tenants for the same address. we posted within 300 feet of the location both the original location was posted and the new location was physically posted on telephone poles or other outdoor areas, door hangers were done prior to construction, so there's multiple floppers -- forms of notice that were provided. as to the hearing notice, at&t does not provide the hearing notice, dpw e-mailed the notice to mr. yee, he didn't attend the hear, it's not just that the box showed up, there was a hear, he did not appear, the director supported the staff decision and at&t moved forward. so, multiple notices were

given, many people received those notices, we are here to attest that we complied with everything we voluntarily agreed to as well as the dpw order requirements. as to the substantive appropriateness of the position, the department is here, they have detailed siting guidelines to say where cabinets can be placed, the cabinet complies, the foot track if -- for the post office was considered, [inaudible] it's one of the busiest markets in the city, a new location was found that has less traffic, it's not in front to have post office, it complies with all of the department's detailed requirements. as to the lip, there's a photo that shows the lip, the department's letter says that it can't be fixed, what happened is we began construction, mr. yee's complaint came in, stop work

order, then we were allowed to proceed and make it a faith condition, the cabinet's not turned on, it's placed there as a temporary fix until you determine the outcome of this appeal. once we either have permission to proceed, we will finish construction and grind down the lip or we will remove the cabinet and put the site back to being just a sidewalk, it's not saying the department can't be fixed, they're saying it can't be fixed until we determine this and decide which way to go, as to your item, we have responsibility and liability to what happens based on our facility being in the right-of-way. there's a discussion about mr. yee wanting to expand his use, allegations of graffiti and trash, as required, at&t removes graffiti within three days of notification, there's a toll free number to call if