since that article 27 does apply and i do agree with commissioner fung with a slight variance although i think with the new legislation and what that is going to bring to it i personally feel that box is not going to be on that location so i agree with you it didn't - it should fall through the new legislation >> i will move if there's no other comments i'll move to uphold the appeal and to deny the permit based on the prelims of article 27. >> thank you. mr. pacheco

>> so again, a motion from commissioner fung to grant this appeal and deny the permit and again, with the finding the permit didn't come ply with the new smf ordinance on that motion commissioner president lazarus. the president is recused commissioner honda >> thank you. the vote is 3 to zero this permit is denied with that finding thank you. okay. so we have two items remaining that is 9 ab appeal. and both at&t california versus the department of public works use and mapping 1411 is the denial of the utility excavation

permit for the public right-of-way relate to a mount facility and the next appealing the denial on may 28, 2014, of the utility excavation in the public right-of-way with a mounted facility since those are denials we've started with at&t mr. johnson you'll start and have up to 14 minutes to present our case. - your case. >> thank you, commissioners. can i request that the exhibit be placed on the overhead i'd

like to begin by addressing the departments brief and correct a few things for the administration record. there are some statement in the departments brief are untrue or misleading i'd like to correct those. i'd like to begin with page 17 of the departments brief. and this section of the brief concerns the city's flu to comply with the 60 day rules and the cities argument its failure to process the permit within 60 days is at&t's fault or not a problem because at&t explicitly waved its rights to comply with state law. as part of the argument the department offered this chart up

on the screen i need to point out a few things. the first one e first thing the department has mixed up the dates for cloud street with another. all the dates you see on this exhibit for cross-out are another street and vice versa. more - >> i'm sorry to interrupt is there a way to focus this i can't see it, it's blurred. victor >> the manner or focus. >> let's try craft. >> nope. >> a little bit more. >> that better. >> we can't see it. >> focus bottom.

>> the other way. >> oh, there i had it. in the other way right there perfect >> yeah. >> okay. maybe we can take a look at it the actual. >> why this is from their brief so i'd be happy to pass this anti. >> thank you. >> so the first point i was trying to make commissioners where you see cross-out street they have the dates for the other location and vice versa i will point out what the department says will this chart the completion of tasks 0 one through 4 is under at&t's sole control. that statement is untrue. as the department is aware i'm sure ms. short will explain all

entities to file permit applications ray are required to get approval from the department of public works before we can post and the department simply left that step out of the chart so i'd like to put up on the screen now the e-mail that at&t received from the department authorizing us to post. i would like you to not that our applications were filed in october and november of 2013. so the department did not authorize at&t post for several months. one hundred and 32 days from the time we submitted our application for in question ago a hundred and 4 dates days from

the time we submitted our application just for the record it was dated february 26, 2014. i'm going to intermit the exhibits to put up one that accurately reflects what happened in this process. so right off the bat as you can see the facility was already out of compliance we summit and applications in october and november eaten the planning department sat on them for more than one hundred and of days each in violation of the 60 day rule. when you add up all the time the department actually used take out anything that at&t was responsible for 6 days it

process the one application and one hundred plus days to process the other application. the next thing i want to point out it's misleading in the context of this chart the city in their original exhibit put in the date that at&t conducted a box walk. i'll simply point out we've discussed this several times the box is eir respect when the department scheduled the hearing. at&t at this point had been telling me the department more than a year to not schedule box walks but hearings as soon as the department got an objection

the box walks did not delay the process and mr. police vehicle man is part of this and can testify we told the city going in person and writing they're not in compliance and not sit on scheduling the dates conducting a box walk. for the record on that point i'd like to simply put read into the record a letter dated december 10, 2013. in which mr. blackman wrote the city and this i would have that the city has 60 days to process the process and the city was not in compliance and the city to comply with state law.

i put this on the monitor to address the second point the city wants to address that somehow at&t explicitly waved its rights to comply with indicting can. the first is snauflt you can't explicitly wave a law you have in writing. the second point sfauflt you can't explicitly wave statute rights i can't wave my right to council rights that are granted by statutes have a high-level of protection the city wants to argue we waved our right to have state law they don't provide legal citations that support

such an argument. the next point? city's brief i'd like to address it is important for the way the board conducts business occurs on page 10 with your permission i'm going to read the paragraph. the brief states at&t argues that dependings denials for the excavation permits vicinity public utilities this argument is not before the board the board lacks the power to declare the ordinance unconstitutional or to refuse to regulate a statute ordinance. this statement of law is half correct. so it's true and i'm going to

put this exhibit on the overhead that the california institution imposes authority administrative agencies under the california insinuation can't refuse to enforce the statute on the basis it violates state law not open the base it violates the united states institution and on the basis it violate the california institution but no other limits on our 0 decisions to the department suggests otherwise it's mistaken. i will point out nothing in the municipal code limits i in that matter and nothing in state law

limits our authority in that manner. to the extent that the department is suggesting that when you make our decisions you should simply ignore state law or you can't refuse or, you know, make decisions on the basis that a state status says that an issue is illegal it's been litigated in the california court of appeals we have a case which can be found at 112 cal.app. and the case issue in the case the appellant argued the puc couldn't argue that and the court of appeals rejected the argument. in the context of what the broadside it makes sense you would be required to pay

attention to california law as all of you are aware when you do not precede in the manner required by law our decisions are null and when the court finds you didn't follow state law he'd avoid our decision. i want to make the point for the record you, of course, are required to look at state law. i argued you believe that the question was directed to the city attorney was the board sees a direct conflict between state i city law what should we do. i understood although i was mistaken that the city attorney advised you to the extent you perceive a direct conflict

between a state law and city law you should ignore state law and follow city law that's not correct. i think i must have understood what the city attorney said for reasons i've explained. you are required to look at state law and precede in that manner to the extent city law it in conflict with state law it's preempted. fm in my final mini want to briefly for the record make a couple of points on the merits. so my understanding of indicting can because it's been substantially longer 60 days since at&t submitted it's applications the board has no

longer jurisdiction to rule and in this instance would be unfortunate for my client but 60 days means 60 days. to the extent the department wants to ignore indicting can to the point that 60 days under state law has no meaning in this inspection i'll simply point out the new ordinance as applied to at&t is void because it violates i section 1407 b that requires the legislation be applied equally >> thank you. >> ms. short. >> carol short department of public works. i would focus my presentation on

the fact that the new ordinance has now taken effect we've denied the permits they are clearly were not final before the new ordinance took effect we think the board should uphold our appeal. i want to make one comment been the 60 days limit while we may have made mistakes in terms of the timing in those two particular cases we make the argument that at&t has explicitly agreed to extend the time limit and the fact they've agreed to conducting the box walk extends the time limit and the sheer volume of permits we told them we'd do our best to

keep up but there's an agreement that that explicit would extend the 60 daytime limit. we believe the board should be up holding the city laws and this ordinance clearly requires you in your opinion to uphold the denial and reject the appeal. i think that's all. oh, one last thing to get on the record the question of whether or not depending has met our 60 days objection we were on track we held the hearing and had included in that timeframe the hoff asked for ailed comment period we were intending to issue the final order by the effective or required date but

at the request of the legislation sponsoring supervisor we didn't meet the 60 daytime limit if the supervisor that imposed the time limit we would go along with that request >> so your opinion because at&t has suggested we don't have a right to hear this because it's gone past the 60 days so the city's that much is yourself departments opinion is - >> well, that i'm not a lawyer so i'm at a disadvantage our opinion the 60 daytime measure had already been explicitly been denied. >> so the concern is on those

particular permits that they've gone on and on and on. on the current on the new legislation is there a different timeframe on which at&t has from the 60 - >> the new legislation previously we've argued that the 60 daytime clock starts to tick with the excavation permit start most of the procedural elements that are listed that have exceeded that are preapplication processes that at&t agreed to with their memorandum of understanding the new permit will be a surface permit so the 60 day 7, 8, 9 permit will start when that permit is implied for. >> thank you. thank you >> public comment i see someone

step forward. >> ma'am, vice president and commissioners i'm david hooper i serve as the president of new mission sterns improvement association i've been asked to attend on behalf of my community in order to through in my two bits. at present it seems like everybody is focused on 60 days one way and it's confusing for members of the community. when we attended the box walk at the corner of the two locations last spring we decided it with at&t members. we considered the alternatives a person if dpep was present and we discussed the aeflths and we're saying okay. like two other previous box walks i've attended no animosity

we're trying to figure out a solution for ourselves and acknowledge that at&t is entitled to do business and provided the service. this time this month i - oh, so i went through there's an alternative we went to the hearing they denied the 916 i'm not an attorney so we're moving towards the alternative site. so the first one we get is a postcard an appeal from at&t this situation with at&t everybody was dealing with the idea of alternatives that alternative is out the window and it's out the window because of the 60 day rule i'm going to suggest two things about the 60 day if at&t were serious would they have stopped the thing in

route and e they started everything and filed is a lawsuit against the city why are they mr. sharp in box walks when the time limit is way over. i don't get it in the meantime, the community is left with the impression that at&t is not being a good neighbor that's not valuable for them. i would suggest that if they wanted to figure out a way to deal with this they talk with the members of the community. it's it's a navel idea stae everybody wants to see the best situation and at present my thought is uphold the denial. and see where it goes. attica also go back to square one the world is not going to

end everything is going to get a paycheck the community is entitled to respect. thank you >> thank you. >> seeing no other members of the public here we'll start our reluctant with mr. johnson. >> 6 minutes. >> thank you. i'll just start by addressing the last point and again, i just want to make claim on the record how frustrating this situations is. as the gentleman piloted at&t conducted community outreach and a box walk and identified alternative locates and came to the hearing and told the hoff we've identified multiple locations we want you to approve one what the hearing officer could have been done held the

hearing open and solicited alleged contempt from the community and made a decision. instead of violation with the state law and the city's rules the hoff denied our application because we didn't apply for multiple location and the director adapted that our permanent application was denied. as we've pointed out the city has granted one hundred and 34 other applications i've read them all never once did those clients ask for multiple location. dpw they changed their policy so i understand when small business from the community says at&t met with us and will tell the hoff

we'll, you know, are in agreement and mr. hearing officer we're in agreement why do i approve it we look like the bad guy when the department denies the permit and informs us to appeal so we can, you know, essentially tipped to uphold our statutory rights we've tried to do the right thing as so to ms. shorts point about the implicit waiver it doesn't say we wave our right to comply with indicting can. i will say it's not - particularly when you write the

city ero telling me please comply with state law. regarding the new legislation i have to make a couple of points for the record. at&t's position is that the board can't apply for the new legislation to at&t. as the board is familiar with the public utilities for the time and plays and manner it must be applied to all equity in an equal manner it didn't say it must be applied to all equivalent intermits which includes the city as the superior court here in san francisco recently ruled in a case involving another telephone

company. it effective exempts corporations doing business if san francisco as applied to at&t that piece of legislation is avoid that will be a matter for the courts but the point i wanted to make for the record we don't believe you can apply that ordinance to at&t. finally, i'd like to address again, the fact we don't have any regulations yet from dpw despite the fact they be issued by yesterday. again to my knowledge the department has worked hard to come up with practical elections that are going to work. they have listens to our concerns they've done everything

but i must say it's very frustrating to have the department appear at the hearings and say that at&t's applications should be denied because they didn't follow the rules but we're not going to follow the rules on the new ordinance. the reason we've filed all the appeals last fall the department stopped following its order that makes it difficult to do business that way where we think they should be held to the same kind of standards we're held to which say they having should follow the rules. i want to stress that they have done an excellent job with the regulations and i don't want to seem to be criticizing but the

practical problem is while they've been working they've not accepted applications or processed anything we've had a new process that will ca take a couple of months through no fault of their own shut down construction in san francisco it's a subsequential thing >> i have a question mr. johnson what other entities don't have to comply. >> for instance, you'll notice through the use of definitions that only utilities have to comply and formulation bus shelters and others are exempted clear channel is the entity that installs all t