vice-president hurtado, aye, president lazarus, commissioner honda, aye. the vote is 5-0. both are denied and noah peels maybe filed. >> item 6. item 6: subject property at 2051 3rd street aka 650 illinois street. letter from stephen williams, attorney for christopher delaney et al., appellants, requesting rehearing of appeal no. 14-058, delaney et al. vs. dpw buf, decided may 07, 2014. at that time, upon motion by commissioner hwang, the board voted 3-1-1 commissioner fung dissented and vice president hurtado absentt to grant the appeal and uphold the permit on the basis that the trees are large and present some safety concerns, and on the condition that 11 the trees not be removed until after a site permit has been issued for the construction project proposed for this site; and 22 that the replacement trees be at least of a 48" box size and if possible of a 60" box size. lacking the four votes needed to pass, the motion failed. upon further motion by commissioner hwang the board voted 4-0-1 vice president hurtado absentt to grant the appeal and uphold the permit on the basis that the trees are large and present some safety concerns, and on the condition that 11 the trees not be removed until after the june 5, 2014 hearing before the planning commission on the large project authorization for the construction project proposed for this site; and 22 that the replacement trees be at least of a 48" box size and if

possible of a 60" box size. permit holder: richard price. project: approval to remove six 66 existing trees and plant nine 99 >> item >> we will start with the requester. >> good afternoon, commissioners, you know who i

am. delaney. i'm back for the trees. what we are asking first is that the previous motion be amended to read that the permit be issued after the final approval, not after the june 5th meeting because that's not the final approval. while it might be and might not be. but after the final planning approval. because we as the citizens around these trees would like them there as long as possible. it's not clear dha this project will actually get through. so how do we know this? we would like these trees to stay as long as possible within our community. most of the people in fact all the people who live around there work and can't come for various

reasons. all of them are passionate, you have received letters. i would like to give you a little bit of education and this is for commissioner hwang, you had many questions. i'm going to read to you from donald bald key from the nursery on trees and i have asked for this so going forward you have this information. as a rule trees set in the sidewalk do not exceed 26 -inch 36 -inch box side. this tree is proposed to be 24-inch, 8-9 feet. 36 -inch box, to 14 feet and 19-20 feet. generally those larger sizes are never put

into a sidewalk because you have to holdback. this happens to be mine as well. so you are usually going in maximum at 36. there is about 1 years growth between each year. perhaps one 1/2 years between 48 inches and 60 -inch between the sizes of the boxes. ultimately the smaller contained trees contain mature specifications of the larger. the smaller contained trees are better acclimated. well show you and we'll remind you here in the overhead. the trees here are 15 years old. these are the trees that are being removed and these are the trees that we hope will not be removed. they are significantly larger. the street trees which are required by the developer will never reach the height. these

are the street trees directly to the south which planted three 3 years ago. you can clearly see this is a huge loss to the community. and we beg you to reconsider your vote. thank you very much. >> thank you, before ms: begins before the proceeding. >> i did and i'm prepared to vote today. >> good afternoon commissioners, virginia and rowson behalf of the permit holder. under the rules of the board rehearing can be granted except in extraordinary

circumstances. we are showing new facts that at the time could have affected the time of the hearings. these could have not met the standards. mr. williams and his brief argued it was merited by a procedural formality. the motion failed by 3-1 with one of the commissioners absent. this doesn't justify rehearing in this case. first the board had the option of rehearing the matter. it wasn't required by rules or statute. as a result there was no procedural violation occurring from not continuing it and it doesn't constitute extraordinary circumstances. second, both parties appellants and respondents were conducted at the board to resolve this immediately as possible. respondent agreed immediately

and appellant did not dough -- do so and this causes delay. the boards final motion for the reasonable balance on the interest. the trees aren't going to be removed until the advertisement hearing -- title hearing from the planning commission. appellants request to delay this removal until issuance of the site permit would burden the permit holders. a site permit isn't a planning entitlement but rather issued by the dbi until they reach the entitlement. before that is issued the developers will need to conduct a routine for such activities at the site and will include drilling and water table testing that hazard to do with geological and soil testing. those activities are going to be done in the areas where these trees and basis are located.

also the trees represent as we discussed the on going liability to the owners here that they are potentially hazardous which is above the base of the ground and because they have heavy limbs over the road and sidewalk and they are prone to failure in the future. also, mr. williams in his brief alleged the board was providing incorrect information regarding the project. at the last hearing this is untrue. just to be clear. the project does not require any variance in the planning code. we'll have planning exception as part of the large entitlement including the rear yard setback as discussed in the last hearing. because the appellants have the burden on this matter, we ask that you deny this request. thank you, we are available for questions. >> thank you, ms. short, do you have anything to add? no. is there any public comment

on this item? seeing none, commissioners, the matter is yours. >> well, since a lot of this probably hinges on my opinion, i think i would like to have some discussion with my fellow commissioners about their view on the procedural error and whether that meets the standard for a rehearing request. >> i have my own opinion, but just want to be informed by other people's thoughts. >> we have made the comment in enumerable times that should a missing members vote affect that we would ask for a continuance our self. that is not a formal thing but we've said it many many times.

>> we have consistently applied that practice. it is as commissioner fung indicates, i think it's a rule that we have that is informal rather than a formal policy, but it is practiced. i'm not sure during a course of the time that i have been on the board that we've ever diverged. we followed it. that's my view. >> okay. well, i do believe in procedural consistency and it does appear that it wasn't

inadvertent error. for a standard of rehearing request. without the merits on the case i would support granting the rehearing request. >> okay. is that a motion? >> i would so move. >> city clerk: we have a motion from the vice-president to grant this rehearing request. >> we need to pick another day and we set that date before we take the roll call. i would say to give since there is new briefing that is allowed we would need to place it probably no sooner than july, maybe july 16 th or july 23rd calendar. >> it's a matter that we

might be with a different commissioner? >> it might matter. i'm not sure how unless the parties want to agree to a short and briefing schedule. >> i don't know. >> it's also a very heavy calendar. >> right. the 23rd would be a better date for the board. >> how about the second? >> july 2nd? that would require the brief to be submitted. >> we can have simultaneous briefing if the board wishes? >> then we'll brief. >> okay. that's a plan. i would support setting up for hearing july 2nd and perhaps that will allow commissioner hwang to be with us. one can hope. >> so it would be as suggested

simultaneous briefing due the thursday prior. >> yes. city clerk: so again we have a motion from the vice-president to grant this rehearing request and to set the rehearing for july 2nd, 2014, with simultaneous briefing from all parties due one thursday prior, normal rules 12 pages unlimited exhibits. on that motion to grant this hearing request, commissioner fung, aye, commissioner hwang, aye, president lazarus, commissioner honda, aye. >> the rehearing is granted for july 2nd. thank you. >> thank you. moving on to item no. 7. item 7: richard hillegas, appellanttss vs.

dept. of public works bureau of street-use & mapping, respondent 102 virginia avenue. protesting the issuance on march 27, 2014, to sbc- pacific bell engineering, excavation permit install new cabinet; telephone purposee. application no. 14exc-1666. for >> thank you. moving on to item no. 7. sf 71234 you have seven 7 minutes to present your case. >> members of the board. thank you for your time. i would like to ask the board for additional relief. one, deny excavation permit 14exy 1666. in addition, 2 , direct at&t to conduct a project such as described in my brief. 3, order dpw to correct mist statements made on saq, and order to verify the

applausibility, and five order dpw in the future to verify those projects received the question. the regulation requires that for each at&t must identify properties to host sfm and must retain those easement request and let at&t install on the property and to grant at&t a permanent easement at anytime of the day or night. the possibility of compensation is not raised. it is hard to imagine why any single family how was -- household would en couple i am -- their house with this. the multiunit apartment complexes which could tolerate these burdens and that's not what at&t did with virginia

avenue. the properties with at&t identified are all single family how -- households. my home is one of these properties. i was puzzled to find my address on this list because i never received an easement request and the property next door did not receive an easement request. i have not obtained whether the other property owners received and easement request. i know their not responding to dpw and never bothered to follow up with me. it is not a problem that this part of the process lacks effective oversight. no one can be shocked by at&t casual handling of this part of the process. the other goal which dpw claims that requires is this: sff should be grounded as possible. that it can't be undergrounded at all. this is

a statement that every sfm that at&t has installed throughout the whole country. it contradicts dpw's claim that these have undergrounded in other communities. moreover dpw response admits this. so what can we conclude about the stated goals of the regulation which governs how dpw vets sfm. the first goal is not enforce and the ekd -- second go can be. sfm won't promote the rights of way. i will submit two photographs where they have been installed on two neighborhoods, on valencia and valencia and 26th street. a disabled person with a walker or wheelchair could not board on a vehicle parked next to this sfm and proposed to

virginia avenue across the sidewalk at the ramp at the intersection. there is already another large obstructive telecommunication cabinet there. together they will form a long wall in commoding people's access. this is no objection to the suit ability of the location described in my brief. we may therefore assume the site is unable to host sfm. i reject this on these grounds. 1, at&t failed to follow the process for requesting permission to install sff at this sight, easement request were not given to owners and dpw did not follow up. 2, this would in commode the public's rights of way. therefore i ask the board to grant the following

relief. one. deny excavation permit 14 exc 1666. two, complete the process for applying for permission to install this. and order at&t to draw up a list for private properties which could host sff. such properties would hold multiunit complexes and described in my brief. 3, order dpw to correct the misstatements on it's fetal fak. to possible underground. four, order dpw to approve it's processes to identify properties which might host sfm and multiunit apartment buildings are more plausible candidates than single family house holds. dpw should

verify and order dpw to verify request to actually receive by unidentified property owners. i would now like to show the pictures of the sfm nearby neighborhoods. so you can see that someone with a walker or a wheelchair could not get in there. and now can i enter these into the public record? thank you. >> sir, when i read through your brief and a couple of

comments you just made, why do you feel that a multiunit apartment house is more appropriate site for these units? >> i think that it comes down to a couple factors. one is a resale value of your house. i think it would be significantly depressed by having an ugly piece of street furniture on the property and i think it would be significantly depressed by having a permanent easement on your property. i also think that allowing that single family household is not likely to be willing to let at&t come through their garage or their living room or however they intend to do it anytime of the day or night in order to service and sfm. it boggles the imagination. >> thank you.

>> we can hear from the permit holder now. mr. johnson. >> you have a copy of this? okay. >> good evening. foster johnson on behalf of at&t and with me this evening are mark blake man and teddy bras. i just have a few comments in response. the board is aware of the legal standard for denying sfm permits to show the public right-of-way. as know if you looked at our brief or the order, there's no evidence in fact not even an

argument made at the hearing before dpw proposed sfm located on virginia street and there is no legal basis to deny the permit application. as to the easements, as the board is also aware from previous hearings at&t is required to seek easements from land owners in the vicinity of the proposed cabinet and does in fact voluntarily do this. the department verifies that as part of the application process. at the hearing lynn fong of dpw appeared and stated on the record that at&t has in fact complied with all the requirements including seeking private easements. this is something that at&t does voluntarily. it can't be a basis for denying at&t

statutory right to place the utility cabinets in the public right-of-way. at&t has that right under 7901, the public utilities code. it can't be ordered as the appellant request to place this on private property including that the property owners are unaware of granting an easement. as to being able to underground the cabinets, we presented evidence previously about this. mr. brakeman is available to answer questions both about the easement and about placing cabinets and undergrounding and what the technical obstacles to doing that are. we also have provided dpw with information as recently as november of 2013 that at this time it's not technically possible to put these large cabinets

underground. i don't have anything further to add to this but i'm happy to take questions at this time. all right. thank you for your time. >> mr. quan? >> good evening commissioners, john kwaung from public works. we read through briefs from the appellant and as it relates to the statement by the department to frequently asked questions posted in a website. i would like to use the appellants exhibit and explain why we believe there is a misunderstanding here. i have the frequently asked questions, but he's referring to -- if you can go to the

box area. as you can see the first line states can these cabinets be placed underground? i know there has been underground in other cities. that is not a statement by the department as part of frequently asked questions. this is a statement by someone who is asking the department whether it can be underground. this is not a statement. it's a question and our response is whatever feasible on every permit application we require at&t and other applicants with certain amounts of facilities to make a determination whether they can place these facilities underground. the response is technologically not feasible or facilities underground that prohibits to be undergrounded in these kinds of cases. there may have been a misunderstanding by

the appellant and by reading a statement and believing that was actually a definition by the department. i believe at&t hassell -- eloquently stated as part of this board. as part of the permit application at&t is required to provide an affidavit that they have contacted one of several property owners to request for an easement for placement for is surface amount of facilities in private property on the hold to at&t has always provided the sample letters along with locations of mailings for property owners in these kind of cases. there is no reason for the department to doubt that these letters were not sent out and i believe at&t can ascertain whether these have in that aspect. i think that's all

the department has at this point. >> mr. quan, as we heard, a lot of the departments indicated they did not receive notification on off public private request for installation. since that's a reoccurring situation here, is there a possible way that we can require some type of proof of mailing because it appears that everyone that comes before this board indicates they did not receive such a notification. >> if memory serves the board of supervisors recently passed a legislation rltd to is surface mounted facilities, that this maybe some type of notification. i don't know off the top of my head. in the meantime the department is already working on revising our guidelines remitted to is surface mounted facilities. >> that legislation has been

approved. when will it take effect? >> i cannot speak directly to it. normally it tan. -- takes effect after it's signed by the mayor. >> the mayor signed this on may 28 in regards to mounted facilities. >> i have a question about the easement. i'm struggling to understand the argument and position of the parties. can you help me understand that. there is a requirement that the permit holder seek an easement to access private property. i don't understand this. >> the requirement from the department is to direct any applicant that's applying for is surface mounted facility to seek and try to acquire, to place this facility on

private property. we do not necessarily, we do not broker. >> right. so an effort is supposed to be made by the applicant and there is according to your records there is no, you have no basis for believing that such efforts were not made, right? >> that is correct. as part of the application, at&t did provide the sample letter along with individuals that they have contacted. >> just what i don't understand is that alternative that's being raised by the appellant considered to be sort of a more preferred method. is that from your standpoint? >> if at&t is able to enter into some agreement with private property owner and placed this facility onto private property, we would not be in front of