we also opposed this facility because, not only did the attorney refuse to negotiate a settlement in this action, they refused to discuss alternate locations. and since we have five minutes left i would like to give them more time and we are asking that you up hold at peel in light of what was presented to you ethank you. >> thank you. >> thank you, commissioners. and my name is nancy and i live at 1160 prague street and steven and my co-appellant has given you a lot of information concerning this appeal. more on the factual nature, and my points are more of the personal nature, in dealing with at&t or their lack of communication. and lack of support.

this basically really started on june 19, 2013, when i came home to find my now president of oma association walking around with representatives from at&t looking for a site for their utility cabinet. and one of the sites that was discussed is in the park between prague and winding way, at that time i did not know that there was limiting on park or open area for these boxes to be in. at&t assured us that if that was the spot chosen for the box that they would well obscure it with the vegetation from the forest and at&t failed to mention that what they needed to attach to the telephone pole that three feet will need to be dug down for the box to be nut and that the concrete will need

to be placed into the park to lead to the box and nor did they mention any construction of the street or sidewalk needed to make the connections between all of these boxes. and next, thing that i get and here i have a photo actually of where the box was supposed to go and where they actually were going to place it if you would like to see that. and that is the kind of shows the park area this is where they were going to place the box and this box discussed in the middle of the park here. would have been here in the middle of the park.

but those are pretty much the openness of how big the area is. and i next get a notice for the permit request being at 1149 prague street which was an area not even discussed and it is, and in the picture, that i will show you here, that is what the size of that box would actually be and so that was the photo that came, and when i got this i started making phone calls right away to at&t and dpw asking where did they get this spot and why are they going to do it here? i got no response.

and in may of this year, i found spray painting on the sidewalk in front of my home and all along the street and for no reason, i could not understand what the reason was. and a fuse days later i get spray painter. >> if you made copies we will be happy to take one, since you made one. >> and notice that this is a month and they are kind of

fading and when we came home they were very striking. and i >> could you please give a copy to the attorney for at&t behind you to your right. and i had no idea what these were for. and >> not that day but two days later i get this notice on my mail box and actually on the door hanger that they would be doing the work for at&t. and that we had just filed the appeal on may 15th and so i contacted all of these people and i am sorry that is where i wrote my notes to jones from at&t and joe for the

supervisors, and finally on this last walk through and i asked them about the construction and she changed the subject and i finally sent in an e-mail, requesting some information on this. and i failed to still have any feedback from that thank you for your time. >> thank you. >> thank you >> mr. johnson. >> good evening, commissioners

johnson for at&t, at&t agrees with the department's position that the appellants have not presented any lawful basis whatsoever for reversing the department's decision. appellants primary argument is that the proposed location is a park. it is not. it is a traffic median. >> it is what? >> it is a traffic median. and parents don't send their children to play in this particular park would want them to be hit by a car. >> and i would further emphasize this, the department's position is not just that 1149 prague street is an acceptable location, the department position is that 1149 prague street is an ideal location. and as the department states, on page 3 of its brief and i will just quote, the proposed location is exactly the type of location that dpw proposed. and particularly, when the

other options or the pedestrian sidewalks. and the proposed location does not impact the use of the streets by the public. and nor is it in front of the private property. in addition, this location is well suited for landscaping and screened the sand f, further minimizing the impact of the community and in other words, the department found that the propose location is the very best place in the neighborhood to install the s&p, and now there is a wrinkle in all of this. the city now takes the position that permits are not final, until the appeal process has been exhausted. and they suggest that because the new legislation has gone into effect, that at&t and dpw should now repeat this entire elaborate month-long process so that dpw can award the exact same permit at the exact same location and i just want to walk you through with what that is going to involve.

so first, the community meeting at night, and in which dpw employee will attend on over time. and then, there has to be an entirely unnecessary completely duplicate review by three separate city departments. and then there has to be a public hearing at which individuals of the public will show up, and not knowing that the department has already decided exactly where the estimate is going to go. and then the hearing officer will have to write a report. and then the director will have to issue a recommendation and finally, at the end of this month long process, the department is going to issue a final determination in which it awards the permit, at 1149 prague street. and so, let me tell you that san francisco resident. and i don't think that is a very good use of the department's resources. i don't think that is very fair to all of the people who would show up at the community hearings, and the community

meetings not understanding the department has already made its decision and let me add as a tax payer, you know, my thoughts on this and you might as well take my tax dollars out in the parking lot and burn them because that is the practical effect of what is being proposed by the department. and now i realize that is not a legal reason to deny the appeal, that is just a common sense reason, but i am happy to provide a legal reason why the appeal must be denied. and i would ask that this exhibit be placed on the overhead, please? thank you. >> so, as the board knows, the public utilities code, section, 5885 requires as follows, the local entity shall either approve or deny, an application from the holder of a straight franchise for a permit within 60 days of receiving a

completed application. and have used in the public utilities code the word, shall is mandatory. and in the city has taken the position that the 60 day clock, does not start running until at&t applies for an encroachment permit and they disagree and in this case, even under the own theory the 60 days ran out in may, before the new legislation what is pased at&t applied for a permit not to be confused with the approval on march 26, the city approved the at&t excavation permit on april the fourth and the 60 day statutory period to either approve or deny the permit expired on may 26th. today is july 16th. and the upshot is that the board no longer has any local authority to deny the permit, any authority that the board

had in that regard, expired two months ago, and according l i for all of these reasons, at&t would ask that the board deny the appeal and affirm the department's decision. thank you. >> counselor? >> go ahead. >> please. >> thank you for the comment and it is a new one and i appreciate that very much. when the new legislation requires only the certain steps that you have not done verses starting all over again? >> the department is currently drafting the series of additional guidelines, and i believe mis short will probably be able to explain better than i can what the department intends. but my understanding is that

should the appeal be granted, and the excavation permit be denied, that we will have to start this whole process over again. and so, we will be required to hold a community meeting at night, which the members of the public will be invited to. but no apparent purpose, and since the department has already decided that the best location. and so i don't... the department can probably answer your question better than i can. >> all right i will ask it. >> okay i guess that my question is it conceivable to you that they could change the decision with the additional factors involved with the legislation? >> i think that it is certainly possible that the department could change its mind and find a different location. >> okay. >> and the legislation does say, retroactive to, correct? but you are saying that you are not, you don't fall under the retroactivity provision because... >> what i am saying you can

appreciate this as if i were an attorney. and so, what the legislation says is that the... any permit which had a pending appeal at the time that the legislation goes into effect, is now subject to all of the requirements of the new legislation. and it does not say that you just have to deny, just says that now the new legislation is going to control, and the problem with the retroactivity portion of it as it applies to this particular appeal is that, it conflicts with the state law. and it conflicts in this way, state law says, once we file an excavation permit, the city has 60 days, to either approve, or deny, the permit. the 60 days ran in may.

and so, the city now cannot cannot retroactively approve the permit and turn around after that 60 day expired deny that permit, and to that extent, the city is in conflict with the state law. >> it sounds like you have a problem with the legislation, though? >> you are required to follow the state law in making your decisions. >> thank you for that reminder. >> i understand. >> we can hear from the department now. i don't have too much to add. and i think that i do want to make one point, and we did not say in our brief, nor do we necessarily feel that this is the very best location for this neighborhood, what we said in

the brief is that this is the type of location that we think makes sense. however, certainly if after our community meeting that the neighborhood came up with another location that they thought was better, and it met all of our other technical requirements we would use the decision, but i do not think that it is a certainty at all and after this is what we feel the required process, and that it is necessarily make the exact same decision, and an issue the same decision. and the only other point that i would emphasize is that the dm believes that even though this was a good location and we do not feel that we issued the permit in error, because the new legislation has taken effect, and it was not finalized we do believe that it needs to be subject to the new legislation, and because the new legislation requires things like the community meeting that did not happen in this case, and we do feel that it does

need to basically start with that process. >> thank you. >> i don't know if this question is something that you can answer, maybe our city attorney can. i wanted to know why are we here, if the legislation basically oviates a need for this proceeding if the permits needs to be reissues, wouldn't it be the case for your department to state that all of those that are pending, and at the of the new legislation was going into effect are voided. yes, and we did in fact issue a notice that anything would that had not yet been finalized would be considered, you know, and not necessarily denied for the legislation to take effect and not from our previous appearance before you, that the board felt that when you had taken jurisdiction that it was

the board's opportunity to determine how best to apply the new legislation and that is why we are here tonight. >> okay, thank you. >> you were absent the last time. >> july second. >> got it. thanks. >> when will your procedures be finalized. and we have a good that we hope to share in the next week or two. >> okay. >> and then we will share it, and with everyone that has applied for this type of permit and everyone that we think might apply and then after, getting some feedback, from them, we will finalize that. >> is there any public comment on this? >> sorry, i will turn it off. >> good evening, commissioners.

and gania, 1160 prague. the previous speakers have said quite a bit, i would just like to add a little perspective from a residents rather than the legal, and so on in this matter. if we look a little bit in nancy put this up, excuse me. and nancy put this up, up on the screen earlier. and as you can see, we could consider this a park and we take care of this, and this piece of land and we water, when there is a little bit less water, to enables us and you can see a few trees on this little piece of property here, and one of them as you can see right here, is a stump. and there is a stump there because that tree was vandalized a couple of years back. and someone took a chain saw to it. and right now, we have, it is adjacent tree, which has scars on it from where we are trying to save that, dpw came out, and

we are trying to save that tree there. and now, the issue that i have, is when we talk to julian and lynn from at&t we did a little walk through and what is occurring here is a lack of communication between at&t, dpw, and the community, we find that the original proposal and there is proportional discriminations in the size of the box sized, that is going to be installed in the location of the box. now, there are alternate places that this thing could be put, and that was discussed with julianne as i put it to her at the time, and what we can't put it in the park, and would or if we find out that that is not a suitable location, for it. what is plan b? >> of course, i did not get a response, because i don't think

that there is a plan b. and so, basically, what we are finding out here, is communications, in the representation of the type of work that has been done has the dismal and once again we found, the power lines and the water lines and we did not know that the sidewalks will be torn up in order for the lines to be put in, and so once again, the communication, and i wish that it would be a little bit better, and i wish that the park could be healthy,

>> 1150 prague street and i certainly the communication is lacking and i came home from vacation to find the markings on my sidewalk and i had no idea.

i got a message on the door knob that at&t will be doing the work starting may, 19th. and i had called to find out what was going to be done, so, i still believe that eleven in the prague is not the best location, for this spot. thank you. >> my name is david and i eleven on 1170 prague adjacent to this piece of land that is called in the evening and i called it a mini park and i think that when the

neighborhood was built, and this piece was put there to beautify the neighborhood and not for at&t to come along and 40 or 50 years later to capitalize on it. and i think that the kids can't go to it and the kids can't go to the park and it is blocks away, and the people walk their pets on it. there are is the two at&t boxes on the polk street already. and you know, they can combine the new box that is one of the existing boxes. and it is on polk street and it is there. and the truck have to come to the service these boxes and so there is, winding ways already, and already really tight.

and prague and it is a small street and if there is a service truck involved there it is going to block all of the traffic. and so i am in opposition to the box, thank you. >> thank you. >> and is there any other public comment? >> okay, seeing none, we will have rebuttal from the appellants. >> and i think that we are encouraging that this board, up hold the appeal, and the board of supervisors and the ordinance, 76-14 and hopefully, when at&t reapplies for it we can have a better communication with them and have a dialogue and which we have not had a dialogue in many many many months and so the last dialogue that we had was when we did a

walk through on july third, that ended then and there and so we are encouraging you, this board to up hold the appeal and we will proceed. >> nancy barsotti again and i think that i did not get to complete it and the major thing that i was trying to communicate was the lack of communication with at&t. and we tried the e-mail or talk to anyone to try to get the information or to try to make the changes and there was a failure to communicate and i think that we need to find a compromise and something easier but they would not even call. and the only person that actually called me back on that, and on that spacing, and on the sidewalk, was the employee from apath and he actually said that at&t could go underground on the street as

opposed to breaking up everybody's sidewalk, my sidewalk has spent a lot of money making it all evening and there is no match work and it is all well done and it is all beautiful and at&t go on the sidewalk and it is going to decrease the property value and if we are going to talk about the tax dollars there goes the tax dollars for the city, at&t could come out and communicate with us and we can find better solutions, thank you. >> at&t asked them to do so, and they intended to apply for

a permit on polk street and on the walk and at&t that they did not want the cabinet installed on the street and thought that the best location in the neighborhood for it was in the median ats 1149 prague street. and having induced them to apply for a permit, the appellant, property was stopped from protesting, and the very location that she asked at&t to apply for at. second, i remind the board that you have the novo authority here and that means that you can do anything that the department can do. under section, 2703 of the new legislation, you can wave the entire preapplication process for the permit if there is no other feasible location and that would seem appropriate under these circumstances. given that the department's position is that the street is

the ideal there does not seem to be a reason to repeat the entire month long process that will involve the considerable out weigh of the department and city resources. and it also has the effect of denying these services to everybody in the neighborhood who wants them and there is a strong demand for these services. and it will not be installing the cabinet and of course it drives up the cost of the services that are available and because it leaves an effective monopoly on large parts of staoet and accordingly, at&t asked that you affirm the department's decision and deny the appeal. >> thank you. >> thank you. >> and miss short?

>> department of public works. we think that the only thing that i would like to rebutte is that the intention of waving the preapplication process if there is no other feasible location. has to do with technical constraints that will prevent an smf from going else and i think in this case, while we found that this was a perfectly adequate location, the first time around and the type of location that we would thought made sense for the neighborhood, and i think that i don't believe that it is true that there is no other feasible location. >> thank you. >> commissioners the matter is submitted. >> i guess, and i would like to ask a question of our city attorney, and i kno