process wasn't working so the process was codified and required multiple locations to be discovered in advance with municipality e multiple location identified so we don't have neighbors pitted against one another and then the next group is a very limited notification time. >> so i had another question. in the dpw order i guess on page 7 i think this was started by at&t when a department has approved the site without requiring the pertain to file the notice of stunt under a what circumstances would that occur wouldn't they also be to send a notice

>> we've also required notices if the department deems there's no impact to the neighboring community for example, i could image a scenario on private property and there was no perceived neighborhood community we might in that six not need the notification but in practice also required one. >> where is supervisor wiener's legislation. >> that's now beginning it was continued introduced last week? this week for some administrative amendments and at land use now. >> did you state earlier that you're the city is not subject to the 60 day rule yet you say

you followed it i got confused. >> what the sfrngs m f process is a preapplication process so the city has adhered well within the 60 day for the tall excavation process and is the 60 day impartial. >> we believe not to the preapplication but we if you assert it is permissible we'll say it came from the at&t side. >> t is there anything again, the the s m f process that has the department to deny or

approve the permit. >> if there was one location the puc states we must allow those companies to install the necessary facilities so this contains the department. >> okay. >> okay. >> okay. so commissioners we'll move into the individual hearings of the appeals item 10 and 11 have been removed so the next is at&t vs. the department of the public works on palm avenue this is the appeal of the denial of an excavation related to the surface mounted facility and the party have agents

they've have 5 minutes to present and 3 minutes of rebuttal. under george. a few points will the palm street application the application was irrationally submitted on june 7, 2013. the department didn't deny the permit until march the 5, 2014, 2 hundred and 70 days later and despite the application was submitted no june the department explicit i cannot the hamburger on the application until january 13, 2014, well in excess of the 60 day rifrment and the 40 day requirement written into the departments order. at the beginning of the process at&t submits a detailed application i'm going to put on the overhead and at&t verifies

that's made efforts for 7 individuals to seek easements on private property i mention that because the commissioner asked i ask this application be entered into the official record >> commissioners you have to agree that if you want it included in the record. >> why isn't it included in the record already. >> i don't have a good excuse for why not but i simply want to offer it into the board permission. >> all right. >> there was only one objection filed my only one objecter paerd

at the hearing at&t could place the cabinet underground which unfortunately, it's not technically feasible to place the cabinets flaun underground no evidence in the record f that it blocked the public right-of-way and ms. fire engine stayed on the record that at&t proposed location met all the s m f order as with the other 5 permit denials the basis of the denial was that some other potentially feasible location might exist natsz itself basis for the denial that's american people improper basis under california law the city didn't have the discretion to deny because there might be other feasible location if the traffic problem or other things in commodity the public

right-of-way there was no testimony or evidence at the hearing or there's no finding by the director that anything about the proposed location with block the public right-of-way and should be reversed. among the items with the permit application we'll reverse and amend the department follow its own rules because at&t identified multiple you alternative locations for the permit that you could send it back to the hearing officer and have him hold it occupy for 20 days and have the hearing officer to make a recommendation the city didn't comply with the 60 day requirement and because of that i'll submit the board is

required to reverse thank you. >> okay. we can sorry. >> is there any you difference between what you've said and what we've discussions here on multiple occasions as to what the process could have been; right? >> so to what the process could have been or should have been the argument is the same, of course, the difference that i didn't specifically agriculture under the public's code by it's clear in the cases interpreting the law the city didn't have discretion to deny permits that's what's going on here.

the only basis to deny the encroachment permit is that that permit would block the right-of-way felt public. this particular one there's no evidence in the record this location would have blocked anything the hearing officer didn't have any basis to deny >> we've heard that. >> actually, i have another question i think you've heard you i want to be clear that's at&t's position if the board should move for this you would be at&t would be would not object to go back and renoticing multiple sites is that what i heard. >> that would be correct we

think that's the process that's envisioned by the s m f distribution. >> rather than deny. >> at&t thinks what would be proper to reverse and remand the instructions the hearing be reopened and the hearing officer do the job that the order containments to look at the various locates and look at the public record of the testimony and make a recommendation to the best location. >> why didn't he do it in the first place. >> why. >> that is one of the issues raised by the department. >> again, we're required to get permission from the department

before we put up nos and again, the process that was followed in the first one hundred and 80 grants of the permits - >> so you didn't do it because you weren't required to. >> at&t is not required and, in fact, where situations where at&t posts things at&t has contacted and choose the company out without approval from the department. >> one thing just to clear i am the we can't remand so either the appeal is approved or grant or not grand or conditions or not conditions so - >> i would say the appeal should be granted but certainly you have. >> i'm raising that as a point of clarity.

>> i've got a question as well. a lot of the reasons we're here is a 3 hundred foot limitation to the equipment our upgrading now >> that's correct. >> so and at&t has state they're new equipment in 15 years can't extend the 3 hundred feet radius is there moot extension. >> i'll ask my colleagues to address that that can't be the basis for the denials by the way, as to the technology the order requires i believe the mou requires that the at&t meet with the city once a year to talk about technical like wireder

radius at&t meets with the city and i'm sure that the city can talk with at&t. >> if i could have the screen also on the 3 hundred foot notice the dpw stated the reason they don't want to have a notice is because a new group of people will be notified and on the palm near the bank where my finger is on the northeast corner and the recommended location is on 36 one hundred geary the same example are the traffic control signal it is a paper tiger

visiting different groups of people if we allowed the hearing to be kept open it will be on the same group of people that will be effected as the original notice. >> in a lot of cases it wounded be here and we're here on this case. >> were you going to off of up more feet for the technology. >> our fiberoptics are linked to other boxed so there's limitation the further your are away from the new cabinets the speeds of the intersect decrease we ideally want it to be next to each other it going goes to one box to another it eats up 6 hundred feet of the distance limits right now our technology

is 5 hundred feet so you automatically take off the hundreds of feet. >> thank you for your explanation. >> are there any further questions. >> keep it short. >> i think i'd like to clarify one the points i think i didn't effecting communicate with the concern the hamburger is held open with a 7 day notice there's not a second hearing so the if there's another group of people that get the notification or the same people not on the box walk

gets the notification they're not entitled to go before the hearing and communicate their concerns to the hearing officer where the 7 days notice is envisioned the hearing officer takes the finding taking into consideration and makes decisions but denies the member of the community to be heard at the hearing. since the question of the 3 hundred foot radius came up the strafr calls up at a hamburger on ocean avenue we were told there were instances where the 3 hundred foot could be exceeded but i don't know if the board can get more information. i will note that the supervisors the legislation that's been proposed by supervisor wiener's

office requires that those companies present finding on how the technology is advancing so we can be assured if underground technology is feasible we can start it implement that in san francisco as well and lastly i'd like to again read the quote i read earlier in the directors decision did, in fact, concern that particular case as i earlier the city has been graptsz that's been found through the ninth circuit case the finding the directors decision an alternative location that may have less than of on impact on the occupants in the

area again i'll state we have not exceeded the 60 day ruling on the issuance or denial of the permit. thees vacation permits have been denied within asking days of the application >> do you know what the proposed alternative. >> it's on geary street in the,of course the background information states with the community at&t identified 3 possible alternative locations only one location was technically he feasible we're going not trying to prevent them from snailing their facilities but if they have wyoming more than one location the community should weigh in. >> the 3 alternative locations occurred at the box walk or by at&t prebox wall walk.

>> no at the box walk and not getting the full one hundred and 20 days. >> aids and abets multiple hearing here. the alternative location are they also brought forgot by at&t or brought forgot by people who joined the box walk >> mostly people who submit them at the hearing. >> in this case we're dealing with the 3 he alternatives by at&t or others. >> at the hearing it was stated that there were locations identified through the box walk process so, yes with at&t and the community together. >> okay. >> thank you any public comment

on that item on having go to do with palm avenue. mr. johnson you have rebuttal time and i would summarize the argument as possible the respondent says we can hold the hearing open for 20 days and the respondents didn't like it's on rules and didn't want to follow them and gets to deny on that basis. i'll say that's improper that the department is abusing it's discretion not following its own rules or typical law. as to the 60 days the argument that respondent is making to be charitable is nonsense they want

you to accept their argument this first two-hundred and 70 days is not an argument approximately will hold up in court at&t has told the city gng again and again it has told them as the meetings and also in writings. i want to put on the board an e-mail from mr. blackman from tuesday in which we noeftsd ms. functioning that at&t will be sending a letter under the state statute that cities are permitted to meeting the 60 day deadline. a must months later on

august 16th after a meeting ms. functioning sent a letter from august 16, 2013. ms. functioning wrote as i understand it during the meeting at&t expressed concern that the structure 60 day turn around requirement. the city simply doesn't have discretion to deny the applications and the city has offered no liquidity legal explanation as to the 5 permit applications in particularly on 198 palm at issue i see my time is essentially up >> go ahead i want to clarify there's no argument specific to

198 palm. >> well commissioner president lazarus i would disagree one of the arguments the city discretion to deny the cabinet. >> i think we've heard that before. >> there's no evidence in the record as to the permit location that the original proposed location would in any way block the public right-of-way that's not an argument i made at the last hearing. >> when your technical instead of or excuse me. when at&t's technical staff looks at the sites are there alternative sites in their feasibility analysis and with your commission commissioner president lazarus i'm going to

ask mr. blackman to come up and address that. >> could you restate the question. >> let's take an palm street one technically privity alternative site was discovered from the box site was it determined from your staff in addition to the one you've applied for and no, it was not brought forth until the box walk in this case our proposed location was on the side of a business on palm and the proposed was in front of the business on geary. your preferred location is to get off main thoroughfares and pedestrian traffic and side streets are preferable as geary can be buses so it was on the

side of palm they preferred it go on geary and we investigated technically there's nothing wrong with that we have concerns about wlok pedestrian traffic and if palm is less traffic than geary but by the left that open to the discretion of the director >> are you telling me that your engineering staff or your subconscious contractors who you hire to look for those sites who have a technical understanding of what their connecting to in range they only 0 look for one place. >> not not necessarily they pick the one best suits - >> you're aware of them technically will work for you in that particular area and not necessarily i say that because

we may have automatically looked at geary because it's a busy thoroughfare we may not have done the technical assessment because we eliminated geary because of the busyness. >> on palm street that are specifically aware of the location don't you feel the geary street would have no more traffic than the other street. >> no. >> are you aware of the location? >> yeah. i don't i don't understand. >> roosevelt junior high school so it's right on those kids traffic palm street as an entryway to roosevelt middle school. >> they could yes and that's

the exit there's two exits one. >> there's one further down the street that's the old electronics used to be and the property adjacent. >> that's the wells fargo building or the bank building. >> the wells fargo is on will. >> that's on geary and as you u.s. bank is on page. >> this is a our original location. >> can you reference the. >> that was the original proposed location this is geary here and palm. >> yeah. i see bank but on palm is the roosevelt junior high school it is swaktd between palm and geary. >> yes. further on down palm. >> the next property over. >> further on down we're in front of the bank. >> the traffic did you take

into account the traffic from the junior high school you assumed that gere was a more trafficked student. >> in we didn't didn't and ms. short you have 3 minutes of rebuttal. >> department of public works again, i think that the issue at hand is that at&t is not providing multiple locations up front essentially they're trying to force the hearing officer to approve the only site they like and they've not in any of the cases provided more than one location prior to the box walk. it's been our experience and staff has discussed with at&t technical engineers leaguer to look for the site closets to the

a ii they try not to go up $300,000 feet the challenge is again, the city has grant the discretion to consider convenience in the commodity of public right-of-way this was found that the at least impactful their may have less of on impact with the property owners and they recommended that the additional location be explored. i'll say that the proposed legislation will codify this process. right now they're saying we're not following our own rules those are guidelines and there

are sufficient notification or we have no need nor a public hearing unless the tennis what to have the public weigh in they're n they're not allowing the public to weigh in we've following the intent of the mou and at&t has agreed to the mou they seem to recognize a public process but continues to submit only one location at that time, and we're not able to have the public robust discussion and this newly legislation will not allow proximity to schools. this is specifically considered in the legislation so i think that's worth noting f this may not be the best location >> hy