have never applied don't apply. >> no. >> if they appeal the denial of the excavation permit, with that also allows them to -- wait, that would be no site, never mind. okay. >> in case excavation permit or not we will back it from this commission to go over which is the approval of the site. >> okay. go ahead. >> you have asked for an interpretation from the city attorney representing your department? >> actually, the program manager requested that from the office that was provided. >> i just want to -- just one

point. is there a clarification request. there's a public comment and we have a chance. >> i was going to recommend we have public comment but limited to this issue. >> that's correct. >> would you rather do that first? >> let's do it that way. >> is there anyone that would like to speak specifically to this issue whether these appeals are right at this time? the question is we will take public comment not on the substance of the appeals but whether these appeals are ready for the board to hear, whether they are in a -- it's a procedural issue, technical. this is not on the merits. >> i'm going to try if i'm not

addressing -- >> yeah, let me try to restate it. i'll back off. thank you. so the question that we asked the representatives and the parties to address is a very specific question relating to whether our board can even hear this matter based on a procedural issue. this is been argued -- i don't know if i need to go into this. it's been argued by the departments that it is not properly before us to be heard until another procedural step has been completed within our department. if that's complete edd then it's ready for us to hear. the appellate has argued that whoa weren't even allowed to go to the next step so let's hear it now. that fair? if anyone in the public, we welcome your comments on that specific

issue. e weren't even allowed to go to the next step so let's hear it now. that fair? if anyone in the public, we welcome your comments on that specific issue. >> i'm a property owner er at 196 randall street, make sure that the process worked and make sure the locations were selected. i don't understand how at&t can claim that they were denied a permit when all the dpw did was suggest that they go back and look for an alternative location at which time when they find one that works a permit will be granned granted so i find their argument strange and don't understand why they made the appeal in this manner anyway. that's all i wanted to add. >> thank you. all right.

>> you want to allow time now for -- >> we have a public speaker. >> thanks. >> i'm addressing the issue at 620 and the issues are similar to what this previous speaker said. we were in the midst of trying to finds alternative locations when we were surprised. in fact, mark even instructed his people to work with us and then cut him off and next thing we knew there was an appeal so we -- that's basically the situation and we had some ideas, but those ideas have yet to be vetted. we've never had an opportunity to have secondary conversations. >> thank you. any other public comment? okay. >> i'm mark with at&t. i withdraw the that dpw administers. each one of those sections

explicitly states that -- >> can you wait 'til we get to that? it's an exhibit, the dpw order you said? >> yes. >> g in the dpw order. >> what subsection? >> it's on section 2a on page 3 of 23. also looking at 381. >> i need to get to the first one. >> okay, i'm sorry. >> okay, page three --

>> three of 23 in the dpw order dating august of 2005. >> what section? >> section two, letter a. >> okay.

>> in an analogous context in an appeal to a court from an administrative decision california courts to not require the appellant to exhaust all administrative remedies if doing so would be futile and administrative agency was clearly declared on a particular case and that's in the city of dana point case where the outcome of this is clear. we cannot apply for an excavation permit and if we do we will be denied because we haven't got the smf approval so i would argue this is ripe for the commission to review it right now. >> understand what at&t is

suggesting, however, within an order of denial we have always been consistently stating and informing the at&t that the reason for the denial was we request at&t to identify internal facilities from all indications based upon review from staff. this is the only location for all three permits. these are solo locations so the suggestion from at&t is in these kinda cases you're required to approve it, there's no alternative, regardless whether it's public comment, objections or not, unlike what has happened previously that was appealed at this board on 22nd avenue where alternative location was identified working with the community. >> in these kind of cases the

department suggests that in order for it to be fully effective that the process needs to be followed that there should be this approval of an excavation permit in this case, a denial excavation permit to effectuate this similar process as we did to the previous matter that came in front of this board for surface facilities which was the appeal of the excavation permit as it relates to the findings of the department of the citing of the surface facility in this case. >> okay. >> are you finish /stph-d >> yes. >> with that logic then should have led to completeing the other steps before there's a denial, shouldn't it? >> that is correct and we had requested at&t to work the community to come up because the order was very specific that would allow for additional

20 days. >> this approval came from you folks. >> excuse me. >> this approval came from you folks. >> yes, it did. >> before those steps were completed. >> i mean, if you -- if they don't move on it then it just sits, nothing gets done, . >> but you triggered it by your disapproval process; is that correct? however -- >> understand. >> however, had the department choose not to take action of either making final decision, a decision on the citing, we would still be back at this body -- >> i understand that sequence. thank you. >> thank you. all right -- >> can i jump in first? >> of course.

>> i'm not sure i'm in agreement with dpw's position for the following reason. permits and license have been in the charter for 80 years and we have on other occasions done additional things or heard additional appeals for cases that did not involve a permit or a license and so i will give you the following examples. one would be a letter of determination, another would be a major project authorization. none of those involve an actual entitlement. >> right, but there are other code provisions that give the

board authority to hear those type of matters. >> you're saying that's specifically stated and allowed. >> by legislation, yes. >> i'll ask our city attorney opinion on this. a: are you? >> yes, into the microphone please. >> my view on it is that on the charter, the board of appeal has jurisdictions over the decisions regarding permits, the issuance or denial of permits and i understand the frustration that's been expressed on the other side, but until we know what the permit is, then -- and until the permit has been denied, then i don't think it's here yet so there should be an application for a permit. it wouldn't necessarily -- if dpw makes it impossible for at&t to file a formal application for permit then i think at&t should send a letter to dpw that satisfies the requirements for an application

for permit requesting that the permit be granted so that we know what the permit at issue truly is that at&t has satisfied all conditions of the permit and dpw has a chance to say we are denying the permit for reasons one, two and three in this letter or this application, then thosish shies would come before you for /aeu analysis and appeal. >> i think what our city attorney just state d makes sense to me because the permit that will ultimately be denied is the permit which we have jurisdiction to hear and it will be included in that as the matters that you brought today on appeal. so we will get there. i agree, this must be frustrateing, but that is part of the city process.

i understand your argument on the law, but i don't want to mess with the city process because i don't want to operate outside our current jurisdiction. >> i heard something a little troubling, and i don't know that this is germane to the particular issue. the represent said that at&t was asked to go out, meet with the neighborhood and identify alternative sites and it looks like they're trying to circumvent that. it seems like there was an opportunity to find an alternative site and that's being looked over. >> for the process, i think -- i think we are so inclined to take a vote on the question of jurisdiction because i think once -- if it goes away that we're leading here, i think it

will determine the outcome on the rest of the appeal on the merits so i'm going to make a motion to deny the permits based on lack of jurisdiction. >> could i suggest maybe instead of denying the permit -- so are >> sorry, reject the appeals because we have no jurisdiction to them. >> i'm curious also if you want to have us refund their appeal filing fee. >> absolutely. i would as part of the motion. >> so to reject the appeals and refund the fees for basis of lack of jurisdiction? >> yes. >> when you're ready. >> the motion is from the president to reject all three

appeals for lack of subject matter jurisdiction and refund all three appeal fees. $900 refund. on that motion to reject for lack of subject matter jurisdiction, commissioner fung. >> i'm going to disagree, no. >> commissioner tile. >> i. >> lazarus. >> i. >> honda. >> i. >> thank you, the vote is four to one, these appeals are rejected for lack of subject matter jurisdiction. thank you. >> there's no further business. the meeting's adjourned. this

looking more particularly at the submarket that is affected western so soem a. here you see a calculation for western soma $50.33 a square foot. this

transaction is now at $38.50. for class a. all spaces at 45. so no matter what metric you choose, this is a favorable transaction in terms of the dollars per square foot that the city has negotiated at this location. in case you did not catch that on the chat. -- chart. sometimes they are small. overall rate is $59.01 citywide. we have an allowance provided by ownership here. in the amount of $24 million coming directly from the landlord. the actual cost to prepare the space