so 3 hundred feet in one direction and 3 hundred feet in the opposite direction you're visiting two separate community and groups in those cases which is very problematic for the department as it relates to notification. the statement is at&t estates that in those cases if the alternatives identify at the directors hearing what box is identified at the directors hearing that the hearing officer must make a decision over 20 days so additional notification can be provided, however, the additional notification is 7 days it identifies a separate group of people as part of the

notification. one thing that at&t did not point out is the workflow it's identified in g all the surface facilities order whereas part of the process we reviewed the application we have a hearing it's clearly stated location approved and if so it not if it's approved we can moved to for the application for applees evaluation project but if it's not approved their supposed to start over you identify a new location and process according. at&t is suggesting that instead of having this logical box you approve the box based on the request or disparagraph that

they're saying we ignore this aspect of the workflow whether think an original location or alternative location that's two or three blocks away. the 3 had the foot radius and places the department in a situation where we couldn't get the necessary feedback from another group of folks who may be impacted. going to the comment recommended to the timing we're not following the 60 day requirement as requested. their referencing the puc code we must point out as we did this is a prepermit application not a permit itself you number one and

number 2 we have the analysis in terms of in many cases there are a mailing - once we've approved a location for at&t to do the posting and mailing there's a 2 eight day period in all the cases there's been objections to the locations and in nearly all the cases at&t will hold a box walk approximately 2 most from the posting date is in some ways at&t is agreeing they're going to delay the approval of the permits. we believe we have followed the intent of the order. in this case of having neighborhoods and community provided us with feedback on the most - he let me rephrase on the

least objectionable locations this is where we provide a shorter feedback for other community groups we determined that's the most appropriate to reject this and have at&t to start over i'm here to answer questions >> mr. fong how many applications are there. >> there are one hundred over 2 hundred applications we've received from at&t alone in 2012, 2013. >> how many have been approved. >> i don't know off the top of my head but somewhere in the neighborhood of one hundred and 70 to one hundred and 80.

>> are those the 21 the only ones that have not been approved. >> no. let me explain what happened. i would suggest going several years ago for the appeal related to the location at ivory and second avenue there were two applications for that two surface applications ultimately we approved one and denied the other in those cases at&t was able to place the facilities in the immediate area they requested >> commissioner fong we have additional appeals of this nature coming up in a few weeks. >> you think the complaint that was a first one but the second one the notification had not been given out.

>> yes. there was a suggestion no notification yes. >> thank you. >> okay. thank you. mr. johnson we can take our rebuttal of 7 minutes >> so i'd like to begin by answering commissioner honda's question and make 5 points briefly so at&t does the mailings and at&t keeps record of every single mailing which we can provide if this is necessary. so the first point i'd like to make is that the city's attorney suggested there might be some question about what ms. fong told the hearing officer i want to read the official statements

from the 9 ralph street denial that's essential the same remarks. the hearing officer found at the hearing lynn fong of dpw presented a application stating the applicant was in compliant with the works code and the technical merits of dpw order. so all 21 appeals and that's what's strange about the process the department came and gave input and told the hearing officer that the location met all the elements of order and certainly, if at&t had not been following the process and given proper notice i'm sure ms. fong wouldn't have showed up and told them many times at&t complied

with the rules. i'll point out not one denial did the hearing officer say that at&t was not given notice and it's not part of the administration record and cannot have been the basis for the denial. the second point i'd like to make is that the s m f order was clear at&t is not required to propose more than one location as it's initial application. and makes sense as to why it is because the point of this process is to propose the location in a neighborhood and get community input and input from the department of public works. by for instance, i want to be clear about what the order says

if you'll look at the page 8 of the dpw order which describes the discretion that the heather officer has. let me put this on the screen for you. the hearing officer and director will basis theirs determination on the locations if there's more than one will have the least impact open the property owners. it doesn't propose that at&t come up with more than one location. it's between a collaborations between the utilities and the community the hearing officers role is to get input from the

parties and then make a recommendation as to which location is the least impacted. she's not allowed to do what the department did in all 21 appeals which is simply to deny for various reasons. the third point i'd like to make is that the city appears to be arresting about it would be unconstitutional to enforce its own regulations because the proper hearing was iowa wasn't given for them. that's problematic for all kinds of reasons but the city appointed in the its own belief under the constitution body such as the board have in light permitted to uphold state statutes on the basis their

unconstitutional. so that can't be a basis for the boards decision what at&t respectfully quiz that the board require the department to follow its own rules. as to the 60 day timing requirement the city did a fantastic job in its brief there's an exhibit on the back that lays out per days per application. one thing you'll see the average time between the box walk and getting a hearing according to dpw was one hundred and 47 days. that's not 60 days and not anything like 60 days and california law requires that the city take action between 60 days that's why this process it

exceeded. and finally, i'd like to return to the point i made at the top and the opinion point i didn't here you address. the hearing officers discretion is extremely limited like the directors education e discretion the hearing officer has to approve one the proposed locations or modifications. this department is not following the rule it's the board obligation to make sure the city agencies follows their rules and at&t respectfully requests a reverseal and we have other options one option would be to simply require the department follow its own rules per those appeals because in the vast

majority i could finish the thought >> you have 30 seconds. >> one option the board has to simply require that the hearing be reopened for 20 days as the rules contemplate that at&t notice the public this are acceptable there will be a 7 day protest period and the director will approve thank you for your time this evening. >> your brief references a lot the original agreement of 2005 that does not talk about the subsequential use. >> i think that's correct but let me talk about the memoranda

of understanding. so what at&t agreed to do in the memoranda was to do additional community outreach. and we did that in part because at&t understood that by agreeing to do additional box walk and do mailings that are not required that the city and department would work with us to quote as it's required to do in california law those permit applications and that's not been happened at&t is here redundantly this evening in if those plaques were done in 60 days but those plagues are going on for up to 12 months then denied on a basis that's

unlawful neither the hearing officer or director can do and at&t is told to go back and start over that's not what is - excuse me. >> i have a question i see some language in the dpw language that sees the director can denial the hearing officers recommendations. >> i'm not saying the director doesn't have the right to reject the hearing officers recommendation he certainly does but i want to put up with the director is allowed to do so we can look at this together. you know, often the hearing officers in the position of looking at multiple sites and he's got a lot of feedback from

the public and at&t in some instances there maybe more than one site. the director has the discretion to say for instance, well, i see that the hearing officer look at 3 sites he picked site a but he shove picked site b that's what i'm going to approve or he could say i think site example a a good but needs conditions. again, if you look at the actual regulation which the city didn't want to talk about the regulation is thirty days after conclusion of directors hearing the department will invite the mranlt in writing this locations

the director has approved and whether the planet will be to make reasonable improvements. again what the director is not authorized to do is simply is deny all of those locations and start all over again. the language in the order is clear and unambiguous >> i'm seeing something different. >> okay. >> i'm looking section e page 8. the director may adapt modify or reject the hearing officers recommendation >> yes. he may relocate the hearing officers recommendation he could say i think you could approve site a he director says

i will approve site b. >> i read further down any of the proposed location is that none of them would be acceptable. >> well again, of course, it's a matter of law you have to read those regulations in context. you have to read all the various regulations against each other >> on section 4 to a to c between thirty days the electronic permitting position the applicant will be no evidence whether it's approved or denied. >> i believe you're talking about the second step of the process that and it's a step for whatever reason the department has chosen not to exercise their discretion to conduct site

visits so they have the authority at that second step to tell at&t that your proposed location doesn't meet the guidelines and we're not going to allow you to go out and notice but once the department says as ms. fong did 21 times your proposed location meets the public works and all the requirements of the s m f order the purpose of this process is to identify the least impact of locations for those utilities it's not simply to deny any location whatsoever. i mean certainly the department has the discretion at that second step to say you don't moot the requirements. but once they approve which they did and once they come to the

hearing there isn't any more discretion for the director or hearing officer to recommended denial autopsy anytime you find a location there has to be a suitable location found >> no, ma'am. >> you have to find an alternative site once denied. >> i want to put this s m f process up again. >> i have it in front of me. at&t makes an application to the city a very detailed application. once the city gets the application it can do a couple of things one thing it's allowed to do is conduct a site visit and see if it wants to approve

alternative locations if it choose not do this and deny the permit saying we don't think this location is go back 80 going to plain clothes a crosswalk once they say this meets the requirements then, yes we're past the point they can later change their mind and deny the application. the point is that the way this process works is about the hearing officers role is to try and pick out what's the least impact location the city can say tat at step two we're not going to allow the process we're not suggesting the department of doesn't have that discretion but

can't take 6 months or longer to react >> that's another condition. >> thank you commissioner president lazarus. >> commissioner hwang. >> good evening john from the public works. at&t has suggested in argument in noois the location has been agreed upon. what the department is suggesting in this case specifically is that their definition of the community that agreed to it is not the community as a whole as was stated earlier in many cases and it was in our brief that in many

cases at the beginning of the application process identified multiple locates and this was be irresponsibly contemplated you provide the notification to all the locations we get all the feedback from everyone that maybe impacted if there are outlooks we get the input from all the community members that are impacted and make a determination and find the least impactable location. this are 5 locations where at&t could have engaged the community where they could have provided additional notification in any cases for example, that was

discussed internally after the one single site that at&t had they have a box walk where one or more additional locations may have been identified there was nothing protesting from at&t cob to the department and saying i want to modify any you permit and do the additional days we have to locations that would clearly provided notification equally so that at this point the hearing officer can make a true determination as specified under the order. again, i think there is the suggestion that we are not following the 60 days it's taking significant time to provide for the hearing. the department has continued to

work with at&t given that we receive over 2. applications in 2013 that's more than one per business day and the department holds its regular directors hearings okay. at city hall and it's done 3 days a week and based on this at&t has set a precedent situation we're holding hearing ones a week on mondays to accommodate at&t. this is we have not done this before we're using excessive resources. it's not we are trying to hold up at&t obeying being the deployment and we want to make sure the process is correct and

relevant and that our definition of the community of all those folks that can be properly invited and give proper input in those cases that's all i have >> this may be getting ahead and of the merits if a box walk is conducted at the beginning during the walk an alternative site is identified the issue is that has to be noticed and people given awning opportunity to give feedback that would be a different set of members or community members simply identifying an alternative it can't be identified right there and then by a hearing officer. >> you are correct commissioner. >> how many staff do you have

working on this. currently, we have we are currently users i believe 4 staff members working on this xoouf. your brief >> is same question i asked the appellant your brief relies heavily on mou in the language that verses the original agreement. >> yes, sir. >> i guess that wasn't a question was it. >> the department do rely on the mou this is the voluntarily requirement that at&t adapted in addition we look at the order itself. that's the regulatory

requirement specifically. >> thanks. >> i have one question mr. kwong the notification process in regards to multiple locations has that been discussed with at&t thoroughly has that recommendation obey decided with them in regards to them. >> you said the process would be easier in the body of people would be for the alternative locations as well? >> this has been contemplated within the order itself. implicit the department didn't know at&t's business plan or how you technically their facilities work they know based on what at&t told us their facilities the surface mounted cabinet must be within 3 hundred feet of the

specific cabinet whether they could do multiple turned because of con duties there's no way to determine - >> if this process was potentially adapted that would streamline this and the backlog wouldn't be a bad. >> i agree in some cases in multiple locations were noticed we get the input and as identified it's bye in charge as the attorney if at&t suggested we'll determine what's the least impact. >> no one wants this in front of their house but if it's expand to potential locations therefore more input in the beginning would speed up rather

than slow down. >> your surely correct. >> thank you. >> let's take a short break. >> okay 5 minute break. >> welcome back to the san francisco budget & finance committee we're ready to call group one for the at&t public works this is item 1 ralph street and item 121257 church street and appeal next is 1503 jones street. which is