>> thank you next item item 67 is a jurisdiction request for the subject property the board received a letter taking jurisdiction over the jurisdiction permit which waltz issued by the department of public works on april 2014 the appeal period end and this request was filed on june the permit holder is bell engineering to install a new cabinet it was held as a public meeting and this was upheld to participate in the vote commissioner hurtado i said your h you've received those materials. >> yes. and prepared to vote. >> so the board can move into dligsdz at the last hearing there was a motion considered

but no vote taken to grant the request on the basis there were invert errors on the part of the department back to where i upper before and unless there's further deliberations. >> this is for the same case we're going to hear. >> it's up to you commissioners, if you grant the jurisdiction request mime recommendation you continue the next case so the two matters can be heard together. >> i'd soon as not continue the case we have it calendared and agendized lifestyle to make a decision when we're in the room. >> to a point of the distinction there's a point of the validity of the permit on appeal. >> understood. >> okay.

>> well, my view is that we should take jurisdiction and continue it so that is my position commissioner honda. >> why, why do you feel that commissioner. >> because i believe that we need to hear argument on the permit. >> okay since there on calendar for tonight how will that effect. >> the case on calendar tonight is an appeal of the reirrelevance of the appeal they're requesting to appeal the first issuance of the permit we need to resolve the first one before the second one otherwise

yeah. - that makes sense. >> so hear this one and rile on the jurisdiction. >> then continued to be harder together. >> or they'll have an opportunity to file an appeal sgo don't necessarily have to. >> it's my motion grant the jurisdiction and continue them. >> let's do one at that time. >> so your motion to grant the jurisdiction request on the basis on errors on the basis of the department error. >> i will say that there was some miss communications that occurred we examined that at great length. >> okay. >> we have a motion from the

vice president to grant the jurisdiction request commissioner fung president is absent commissioner honda thank you vote 3 to zero because of the boards vacancy the jurisdiction request is granted and the gentleman has a new 5 day appeal period to protest this permit and it ends this coming monday. >> i'll call the next item george vs. the department of public works bureaucracy street mapping on 26th to 1950 bell excavation permit commissioners would you like to hear briefly from the parties whether or not to continue this case or do you want to - >> i don't believe that's

necessary because we granted jurisdiction in the first appeal and i'd like to hear them together since their closely related so i don't believe that that is necessary unless my fellow commissioners want to hear argument and i think we should allow them to discuss the continuance as a procedural matter. >> okay one minute. >> we can hear in the appellant. >> on the scheduling for . >> on whether or not this should be heard with both. >> i think we should hear them now with the process. >> state your name for the record, please. >> i'm steven mcdonald i represent the appellant george.

>> okay. so that's your position we'll hear from the gentleman. >> is that the gentleman's attorney so we'll hear from mr. johnson. >> good evening, commissioners foster johnson for at&t at&t didn't have any objection to hearing this appeal this evening or continuing to a later date, however, i have a request when i'll explain one of the issues that was raised on the briefing the only evidence that the gentleman offered in jurisdiction request is hearsay the government codes specifically says the

administrative bodies can't basis their evidence on hearsay it appears that is what the board did my request give the board to give a reason other than the record why the board thinks the rule didn't appeal or at&t is incorrect about the law i ask this because this case that will be appealed and it's only fair to the trial judge which the reasons why you think you can take this decision and it's important that the judge know that it's also a requirement from the california supreme court that our findings reach the analytic gap between the evidence and the ruling i simply request that the board give some reason on the record so the court can look at it why you think you have jurisdiction.

>> ms. short. >> the department has no objection to every hearing the case this seeing it continued thanks. >> okay any public comment on that item on the issue of continuing this case? seeing none, commissioners do i want to stay a motion to continue or not and just i'd like to put one suggestion out there if there are two different decisions for those two appeals what does that mean? >> commissioners i'll move to continue this case since we have historically granted jurisdiction the issues the

jurisdiction is not part of the issues and this case is tied to the granting of that jurisdiction i so, so move we continue and commissioner would you like to state a date i suggest november. >> what would you suggest. >> november 5th the calendar is full but to keep it from lagging. >> move to continue this to november 5th. >> mr. pacheco. >> on that motion from commissioner fung to reschedule item 7 to november 5th commissioner hurtado president is absent are commissioner honda thank you vote is 3 to zero this matter is

rescheduled to november 5th. >> thank you mr. pacheco if mr. charles comes in to reschedule then we'll reschedule that next is the department of public works vs. the property on 699 protesting the issuance for the pacific bell of the excavation permit installing the permit for the application it is on for hearing tonight we'll start with the appellant. >> okay

ms. fee would like to pass forward an identical set of photos. >> sure can we make sure we get the photos from the permit holder i don't know if there's a copy for the department as well we can take a look and pass them here's another set. >> i can share this. >> good evening madam president,

vice president commissioner fung and commissioner honda my name is viola yee my property is located on the southeast corner of package and stereotyping streets i have been burdened with a disproportion share of graffiti and vandalism activities for more than 25 years my name is my property has been cited by the street management because of them the department of public works anti graffiti unit is aware of my burden dealing with graffiti based on the notice of violations that they've posted on my property and my porn's at the hard of hearing hearing i've informed them my property is

vandalized on numerous occasions even when the department of public works is not there to cite my property i've had to paint over the graffiti or face a fine of 5 hundreds but the proposed surface mount cabinet in front of the north side can easily attract graffiti on the cabinet and 37 feet of wall space on my property opposed this smf. >> you can continue. >> across the street on the southwest corner of stein and the street is a at&t smov that gets graffiti and garbage dumping that's it a blight 90

for many years in our neighborhood i have two examples to share with you as evidenced by my concerns of recent graffiti on the smf across the street from my home exhibit a one a and that's the small picture that shows it, too. >> overhead. >> this one is undertaken on july 28, 2014, the southwest corner of steiner street this shows exhibit 1-b on the

other side of the mounted facilities both sides front and back now the photograph on july 28, 2014, and then i have exhibit 2 which is photograph on monday, september 15th today september 17, 2014, let's see where is that here - beautiful two days ago close examination of this cabinet shows pink and the cabinet handle it taped with

pink because of the graffiti smf cabinet across the street serves as a constant maggot of gratefully i'm here to ask you the previously issued permit for the proposed at&t smf cabinets on the southeast corner of page street the vulnerable of my wall my age and limited be mobility as a homeowner create an undue physical and financial hardship on me thank you for this opportunity to share my concerns with you this evening that's my - my to let you know.

>> did you attend any box walk. >> i didn't know about it but i heard they went around march third, i was here for another hearing. >> thank you there is a spot across the street 690 page they are - their building condominiums over there that's the only alternate spot for me at that time, and there's that's it i don't have much of a choice. >> thank you very much thank you. >> thank you.

>> mr. johnson. >> good evening, commissioners mr. johnson for at&t i have a couple of brief remarks for the administrative native record dpw's positions the permits is properly granted under the older owners which means the department found under the subject active guidelines it didn't have access to the public right-of-way she's not offered argument that the proposed maps would either violate the

guidelines under the older smf guide order and while at&t is sympathetic to her concerns about graffiti as a matter of fact, of state law that's not a basis to didn't think the evasion permits and the argument she's making that utility cabinets at&t utility cabinets shouldn't be allowed in san francisco because the tag was denied by board of supervisors filing on the facts i ask the gentleman from at&t about this cabinet i could not say that but they say in the no an at&t cabinet because at&t didn't put locks on their cabinet given that no evidence has been prepared by appellant it would

imcommodity access there's no denial for the permit i want to make remarks for the record dpws position that despite the fact they concede that the permit was properly granted under the older smf order they found it will not income mode the sidewalk but at&t is not in compliance with the new recollections the reality as of today dpw has not issued the new rules and regulations three weeks over the deadline the department remains in violation of ordinance i you don't think it's fair or

legal to deny my clients permit because it hadn't followed the rules and regulations because it's not been recorded a few general points b about general activity it's true that generally speaking as a matter of law cities can pass now zoning ordinances while the permits are pending and retro actively apply the permits such as the one here this evening surprisingly there are exceptions to the rule i'd like to make two of them bring two of them to our considerations the first expectation is when there's a

maurntd statutory time limit and the city acts within time limit and the time limit expires the city can't make a different decision those those time limits s are jurisdiction al and wednesday the meter runs the city can't pass no occurrences so again, we simply stand in the argument we've been making for months which is that 5885 means exactly what it says the city has 60 days to approve or deny permits it can't approve a permit on the tenth day and take the permit away particularly bans a retroactive application on the 80th or one hundred days

in the case lay supports our position pretty strongly on that second expectation to the general rule whether or not the city can retro telegraph hill deny a permit if the city passes legislation that effects one city it is barred for the pending permits that the new legislation was passed that's because that kind of legislation is considered to be illegal description and a long line the of california cases back to the 30s the city of orange vs. valencia and sunset 59 one hundred 96 cal app those cases make that clear when a city passes laws that frustrating

commercial development to a specific business that the city does not center the abatement to retro telegraph hill apply that legislation when on old ordinance was in effective the reality supervisor wiener made it clear this new legislation was being passed specifically to address his concerns about at&t and a permitting cabinets in the city it was passed specifically to impose a series of regulations the city can see that at&t's cabinet do in commodity the city because of the new legislation and a matter of law with the position is that at&t has a franchise with the state that allows it to use the

right-of-way subject to the condition that the cabinet doesn't block the right-of-way the city can't retro telegraph hill apply the new permits on the new basis thank you for your consideration. >> mr. johnson on your retro activity argument it sounds like there's no precouncil court opinion have those cases been looked at. >> there's several opinions i can come up back an rebuttal and give you the site locations and. >> i have a question you piloted that the first cabinet is not app so regarding the other two pictures are those at&t cabinets. >> i don't know if i have ms.

raising come in come up. >> we have one opinion on one cabinet we'll need another opinion on the second cabinet. >> good point. >> commissioners, i just know our boxes does not have paddle locks on them and it's hard to tell with the photo maybe you can help me or not it could be one of our boxes it could be more than likely one of our boxes but i can't tell exactly from that photo but it doesn't look like one of our boxes

except we don't use locks. >> what's the policy regarding graffiti removal. >> so at&t has several graffiti removal so the first and foremost the city has an ordinance a policy regarding graffiti removal at&t has a bond on file with the city as part of the agreement with the city so that if we have graffiti on our equipment it sdpoot get removed by us the city b will remove it and charge us typical graffiti removal policy at at&t it's twenty-four hours if it's raining we take into account because we're not going to paint a cabinet if it's raining so we strive to do that within twenty-four hours we have a report that we have internally

every month that tells us what our timelines are on those and whether or not we've met those and we also have the ability to work with 311 and if a customer didn't know if it's a at&t box and called 311 will they'll locate it based on the number on the box. >> so at&t was aware of this 8 days ago go. >> we can go out and paint a box today and tomorrow have more graffiti. >> it's hard for us to be able to look at those photos and knows whether or not those were taken 8 case on the grounds and it was reapplied by a graffiti

artist. >> you're not answering the question. >> the question is any effort been made to clean up. >> you stated once at&t is aware of the graffiti's twenty-four hours it's generally removed in to those packages at&t was aware of this 8 days ago so specifically their addressed and let me add that the brief was filed days ago i've not seen those photos and i don't think we have an answer for you as to whether or not that graffiti has been removed this i don't know if that's an at&t cabinet. >> we may not have had the photos were you aware through the filing there was a problem with the box and graffiti on it?

>> it's an honest question not a trick question. >> i'm not sure what answer to give you i'm aware that mrs. kneeing e yee claimed in her brief i have no reason to disbelief her, her hoemgsz home is tagged i don't remember on her brief whether or not she said there was an at&t cabinet in her neighborhood that was regularly tagged. >> do you have you read the brief. >> before this evening. >> before this meeting. >> i've read it in the last few weeks i don't remember that maybe i missed it. >> you're saying you don't have information there's been