matter is yours. >> you know, what i first looked at this i wasn't sure it was a tree. well, it's not just size bus the fact that well, let me restate that i think it's more in my opinion this is more like a fixture that's belongs to the owner and at one time they wanted the fixture and now they don't want it so i don't know it's an issue of the tree but a question of that puts this particular planted in a slithering different situation than the tree reformers we normally get so i'll support the

owners desire to remove it >> await replacement. >> well, they can't replace it because of the utility line and things in front of their house. >> any motion. >> move to grant the appeal and to grant the permit to the property owner on the basis that. >> undue burden on the homeowner? >> yeah. that's a fixture. >> not a tree and not a planted

tr tree. >> okay mr. pacheco. >> we have a motion from commissioner fung to over rule the denial and plant the permit removal without replacement with the finding that the palms are fixtures and not street trees. >> the palms in containers are fixtures you are turns. >> with that, paemgz and containers are fixtures and not street trees on that motion to overrule with that finding commissioner hurtado. commissioner president lazarus. commissioner honda. no >> the vote is 3 to one because of the boards vacancy this denial t is overly ruled this

permit shall issue with that finding thank you. >> okay. thank you he. move on to item number 6. this is appeal matthew vs. the department of public works bureau street and mapping on missouri street protesting the issuance of july to bell engineering of a utility excavation permit to install a new permit this is with the appellant >> commissioner i'll recuse myself in the past it is the conflict and ask commissioner hurtado to chair this portion. >> thank you. the other microphone, sir >> use the other microphone please. commissioners. >> would you like copies of the

point slide. >> that's not necessary thank you. >> good evening board. i want to take the opportunity to present i'm matthew brendon dpon no 1 on missouri street

just three houses down i'll use my time to address the respondents brief please follow along with the brief that's helpful i plan to address all their points so first regarding their statement of of fact app at&t is exclaiming no community opposition was received at the time of the dpw hearing. you see here this is the order that dpw laid out at the may 19th meagerly or hearing the 5 dash 16 are part of the public record. as shown in the dpw comment tracking worksheet there were no comments in support. however, i believe those commentss observations were miss

carding as two late because the notice of intent date ways used instead of the cut off date the dpw staff acknowledged those received when i asked dpw for those comments they informed me they've discarded on the grounds they were it deemed late at&t's argument the point of contention we're here to discuss the surface mounted facility will not impede the public i along with thirty of the resident for the surface mount facility will impact the community as the representative of that municipality to caliber and overturn at&t's permit i'm not

observing to at&t to install the facility on the street for argument two i'll deal with the two smaller points rewarding the first and final point 13th century religious were corrected in the app statement, however, this is with their errors it is care also with their efforts i'm going to address the second and third point they dealing deal with the 502 missouri street permit suggested for the need for dpw oversight and collecting and conducting a site visit >> so you'll note in denying the 502 missouri permit the dpw hearing officer asked at&t to

study other locations at&t was provided thirty days and if provide the requested report the main reason for permit denial was because of alternative locations. so, now on to the current site under contention and the permit procedure on the left-hand side from dpw order the flow chart for the policies and procedures the mid box this is the case where dpw is to determine if a site visit is required there's no document that at&t sub distanced why it was not required this is dubious dpw's own officer asked fore alternatives but at&t never prooitd one of the things to happen in the site visit they're

to look at alternative locates and at&t it to provide guidance how to prioritize those locations. open to .2. so in this case dpw brings up semimasks and says my version was incorrect if at&t wants to august our semi tusks according to cambridge dictionary they include words like not distant near or close those definitions apply to the uncle i was river to the school daniel yell webster across the street. it's .3 the jurisdiction at&t deposits that the board jurisdiction didn't apply due to the hearing exceeding the 60 day

deadline, however, as indicated from a prior board headline when at&t it r is the appellant it seems like at&t is quite happy to exceed the 60 day deadline it was the june 25th hearing denied after 60 days. to be in this case it appears at&t has cut and pasted from a different brief it sites the location at one 10 burr rose they claim inform alternative locations exist well, that may be true for one 10 burr roses, however, they've not documented this case for 501 missouri street finally the receipt the new ordinance is not retrofit

till applied i was not aware of the brief there's no reference no, my brief i suggest that i suspect that cutting and pasting in at&t wants to bring up the new ordinance i'll point out this is how to apply it requires community meeting to be conducted and sidewalks and a better plan in this case it is a 10 foot sidewalk instead of 12 and not adjacent to schools. here's the existing green box that wouldn't commodity my neighbors i saw my neighbor you painting over the greater weight so in conclusion at&t's are factually incorrect depending on the semi mask concerns and rely on indmvent deadlines and based on flawed processes i ask you

reject the permit and should at&t to conduct the process and consider grurment the citizens for the cost stave - they've incurred >> mr. johnson i can sit down thank you. >> good evening, commissioners foster johnson for at&t now with me is mark blackman it's our position 1952 a straightforward matter let me begin by reading if page 3 of the departments brief on the hearing of the at&t's proposed location dpw testified that the property location met all of dpw's

technical requirement those technical requirements are contained in the exhibit b intended 0 sure that the public right of ways will not interfere with the pedestrian sidewalk dpw made the determination when it look at this location on missouri street dpw continues to building this determination was correct in other words, the department found out it would not commodity the right-of-way the gentleman has not given evidence for the contrary nothing under the state law. the second point is a family one it's been more than 60 days since at&t completely it application any jurisdiction of the board to approve or deny

expired on june 25th the board it is without jurisdiction to do anything regardless of if the city passed legislation the city board of supervisors didn't have the legal authority to violate state law. there are if you other key facts about the permitting facts i'd like to call your attention so 501 missouri is a typically katrero neighborhood a mixed eye neighborhood populated by businesses and residents and heavily congested and contains numerous, numerous drivers like caesar chavez i've been in front of you simply times all of those driveways make that hard to satisfy all of dpw's guidelines.

at&t had overwhelming proposed a filed a application of 501 missouri at&t buildings now that is the best location for this map that would have placed the new cabinet next to the existing cabinet which is basically surrounded by trees and at&t offered to green and screen that that would be hidden on the street, however, a significant community opposition to putting a second cabinet there i was told by one of at&t's field personnel they were told by the people wanted to share the wealth and have a cabinet across the street. at the hearing there were a number of objections at&t made the discussion decision in

contrast what was public opposition on missouri street it will withdraw it's application which is was it did. at&t then refielded the area as people went out and so if there were alternative locations it was determined that a cabinet could be instead of several of the protesters saugd i suggested 50 one missouri and conducted a box walk in may including mr. brendon no one what was part of the walk. during that walk there were 2 additional sites that were located as possible alternatives one on school property on the side of the elementary school at&t applied for an agreement with the city the other at a location on 20th street that we looked at and determined that was in the technically feasible.

at the hearing there were no obtain terrors nobody offered testimony they hearing in opposition to the site at 50 one missouri as a directive odor at&t explained to the hearing officer they located 3 options that were fine about at&t that the cabinet could go at restraining order one or two missouri or in the city give us an easement we'll be happy to put it by the elementary school the city didn't reopened the hoff not at&t choose to grant the permit for 60 one missouri he apparently thought that was the best location i was told by at&t field people there there are no other alternative lecturers that are feasible in

the location we've conducted two box walks and people have been out there numerous times. just a few points in reluctant to the appellant. the reason there were no site visit i'm sure you're aware of dpw decided it's not going to conduct site revives for any applications not only to at&t's application but the department choose not to conduct site visits by that the companies submit the packaging it's not correct that i've taken the position when at&t has filed appeals that the board should ignore the 60 day rule i've said before and tonight it's in my opinion once the skro days passed are the board didn't have

jurisdiction even when i'm appealing the permit has been wrongly denied once the 60 days passes we expel that to work both ways i won't take a different position i don't have anything further thank you for your patience this evening >> thank you. we, hear from the department. >> good evening, commissioners i'll make this brief i'm lynn fong the department of public works bureau street and mapping at&t promoted mounting location at 50 one missouri the staff determined the application met all technical citing requirement dpw authorized at&t to mail and post a notice of intent and

subsequentially received two oppositions and no one attended to speak in attendance attention to the application nor discussion to the location on june 17th the director properly provided proved of u praufd this application and at&t was requested to get the permit the department does agree with the patent that the board of appeals should grant the appeal one ordinance requires the board to grant the appeal the board of supervisors made retroactive the permitting requirements the public works code no longer about the s ms of the permit code and the board of supervisors can do it, it's

intent that the permits articles would apply to permit not finalized by july 28th and the retroactive appeal while dpw issued an excavation permit to the site once filed there was no excavation permit and finally, there's the board can't reduce to deny the ordinance based on a claim that is preempt by state law a city and county may make and enforce it's regulations not in conflict with general law thank you and i'm here to answer questions. >> ms. fong and we'll let the courts decide whether this is properly before us or not but i'm still wondering in the

course of departmental review the permit holders attorney has indicated that they are required then to provide all documents as to whether there are alternative sites or not to what extent does the department review their documentation. >> if the applicant proposes each alternative sites in this case there were no alternative sites proposed for 50 one missouri or no one for alternative sites. >> okay. thank you. >> any public comment on that item? seeing none, we'll have rebuttal mr. brendon no one you'll have 3

minutes. >> so with regards to meeting even though technical requirement in in this case, the attorney for at&t is talking about exhibit b those are guidelines for the site visit it's interesting they decided to say their tha these are guidelines i'm not con intending on exhibit b more to the point there are viable alternatives when selecting the alternatives the score against exhibit b is a good place to starting i'm obtaining from the procedural grounds the comments from the public are not counted and their exempting on the 502 address to so it's a baseball ball between the streets, however, we can't

tell bus dpw got rid of the comments secondly, in terms of the review process it's a public decision how to use the public space we greeting get to go on box walks and at&t completely decided on the alternatives that get selected that's why the process it to the smooth people understand and all the neighbors i've talked to there is profoundly going to be a box on or near the corner, however, there are more options between a 3 hundred foot radius when they say for instance, letters we are sent to the board of education request there's been evidence of one letter not multiple they have a point of lack of additional effort to contact the board of education the site i was suggested on the boardwalk

it was on the property in front of the school property inform fences in terms of other neighbors or property expel for except for the school district to features are even though types of things if you ask the public to be involved we can come to a mature agreement rather than pink pecuniary damage baefrt because at&t is deciding to run this process in a one-sided way in which the public right-of-way even with the prospective dpw didn't get to happen even when dpw has asked fore alternative locations to be considered and at&t disregard that process they continue to do so but those procedural issues i'm focusing on not exhibit b that's down the

road. >> thank you mr. johnson any rebuttal? >> foster johnson for at&t. so let me beginning by noting in the the process that the city issued recollections and the department found that at&t had compiled with the procedural recollections i'm sure there are other ways the city could handle the process and they're new aspects of the regulations that are going to work better in terms of soliciting community input about locations i want to state for the record at&t prepared multiple locations to the hearing officer and at&t

told the hoff we're okay with the alternatives you pick the best the city selected the site at 50 one missouri we identified all the locations within the neighborhood. the next point i'm required to make for the record so simply point out that as of today, the department has not issued regulations as required to do under the enough ordinance it's more than two wookz weeks past the dates that the board of supervisors set fore dpw to issue regulations it's not accepting applications and nobody for several months has been able to install anything in the public right-of-way so it's ironic therefore that the department who is currently in violation of the new ordinances would ask you to deny a permit

they testified that was properly approved and explicit impede the right-of-way on the basis of the ordinance they're not compiling with i don't have anything further to add thank you firing patience commissioners >> thank you any rebuttal from the department? >> i just wanted to comment on the new guidelines ordinance we submitted to the hearing officer today, we included all the other comments during the comments during the dpw process and we should be issuing the new guidelines shortly that's it thank you. >> can you explain shortly. >> maybe within the next week or couple of days next few days. >> the last time that the

department was here they said shortly as well. >> it is really short. >> okay. thank you. >> commissioners the matter is submitt submitted. >> i did the first two. the okay. let's stay and be somewhat consistent. recognizing that the we are bound by the ordinance at the time of the hearing and our decision making therefore i will support the granting of the probation officer and to deny the permit on the basis that the process as denied defined in the

ordinance has not been fulfill accomplished and is that your motion >> yes. >> mr. pacheco. >> we have a motion from commisssioner finkle to over rule dpw and deny this permit. can you repeat your basis again >> number one compliance. >> on the basis it didn't comply with article 27. >> thank you. so again to deny the permit with the finding that this permit didn't compile with article 27 the new smf ordinance on that motion to overly rule and deny this commissioner hurtado. the president is recused commissioner honda