because right now, the building is very low. the other building is, like, three stories high. so i sat fisherman's wharf, we should have prosperity. commissioners say 50 years. i say maybe ten years later, we can see fisherman's wharf, the apartments building for, and create, like, a commissioner -- mr. honda says, we create the people living here. everybody loves san francisco. i love san francisco. that's why i choose to stay in the fisherman wharf. so then everybody, tourist look at it. wow. there's a new building, new apartment. build that. all i know is create the living for the people, so that's all i'll say. thank you. >>clerk: thank you. anymore public comment? okay. seeing none, we will move onto rebuttal.

mr. williams? >> thank you. steve williams again. it's really a matter of fundamental fairness. the etcheverrys should be entitled to rely on the title report, the property they bought, just as the waterfront people should be bound by their title report because they purchased this property at a huge discount because of the development restrictions on their property. this is a gift from the zoning administrator to waterfront. you heard this criticism of the variance. you heard the zoning administrator's being very reasonable. maybe it was done wrong, maybe it was incorrect, maybe it was a mistake. future -- you know, all this -- supposed to be future commercial, etc., maybe it wasn't followed. none of that is in the variance decision in front of you. please pull it out and look at it. it is devoted exclusively to parking. that is the only hardship cited and the only issue sicited in tt

variance decision. they have not -- and the burden is on the variance seeker, they have not provided substantial evidence to justify those findings. they have presented zero evidence. did you hear anything about parking tonight? is there any word in any of your briefs or evidence about parking? the answer is no. this variance was not properly granted. george imperiali would not have sold his property without the guarantee that that open space was going to stay open for his tenants and his building. it's not in perpetuity, it's in perpetuity or until his apartment building doesn't exist anymore. and he's entitled to that. and he was the only owner before the etcheverry family. two family owners in 113 years. you heard a lot of nonsense that this decision is not in the

property information act. look at exhibit shou14. i put it right in front of you. look at exhibit 16. you know, this is a demo. when they did a survey, how did they miss seeing the indication of an n.s.r. and a variance on the assessor's map when they did that initially? they knew about it years before the application went out, and if they claim -- they claim ignorance, it's constructive notice, and that's what the law says is they're held to the constructive notice. to ignore the neighbors, ignore the harm caused to the neighbors and to grant this variance based on parking without any evidence at all in front of you is just an incorrect decision. and, you know, the -- they keep coming back to this preapplication meeting, this mystery preapplication meeting.

there was no preapplication meeting that ever mentioned a variance process. instead of coming at the start of the process, it came at the exact end. >> commissioner lazarus: i have a question. >> yes. >> commissioner lazarus: you mention in your oral testimony and also in your brief asking if there were other cases where applicant was permitted to seek a variance on someone's property. >> yes. >> commissioner lazarus: are there any legal cases on that topic? >> you know, it's a hard question to answer because it's so basic. can you pick up a piece of paper and go make an application for a permit on somebody else's property? no. the variance application says no, only the owner can do that. >> commissioner lazarus: is there any litigation that you can cite or any court cases that document that? >> no. >> commissioner lazarus: okay. that was my question. >> it was such a basic rule. >> commissioner lazarus: thank you. >>clerk: thank you. we'll now hear from mr. schab.

>> good evening again. jeremy schab, schably architects. the zoning administrator is allowed to make changes in previous variance decision cases, especially because, you know, we heard a lot about what mr. imperiali wanted to do on the site. he said, quote, the life of the existing apartment building at 3030 larkin is relatively short. he was already planning to demolish his building 50 years ago, so for these -- because of that, we've been trying to work with our neighbors. can show you again, this was our original -- >> commissioner honda: overhead, please, thank you. >> this was our original approved volume. here in blue are the adjacent

property line windows, so after it was approved, when cory and i were working on this, we cut down the volume. so we are now down to affecting only the two lower units. that's the extent of the shade that we'll be doing on their building. so now, if i can have the owner come up. >> hello. i'm the sponsor. thank you for allowing me the opportunity to state the facts that we did not discover the variance and the n.s.r. issued on the property until 2017, a and-and upon discovery of the n.s.r., we immediately applied

for a variance. if we had known there was a variance issue at the beginning of the project, i would happily have discussed this with mr. etcheverry. [inaudible] >> at that time, a discussion was held with mr. etcheverry to grant us a garbage easement. also, if i had known before 2017 there's an n.s.r. issue open space on our property, it would be logical and practical for us to seek notification of the open space requirement with the planning department at that time when we were still in the designing stage rather than wait until all the plans were approved and notified plans as the letter has caused us more money, time, and delay to rework

the plans. to my knowledge, this parking lot has been an eye sore -- >>clerk: thank you, ma'am. your time is up. >> it has been a parking lot and eye sore to the neighbors. >>clerk: thank you. >> thank you. >>clerk: and we will now hear from mr. teague. >> commissioner honda: no one knows what to call you this evening. >> i'm sure people call me a lot of things by the end of the night. good evening. cory teague again for the planning department. i will assure you the acting zoning administrator at that time did not go out on a limb by his or herself to make that determination. i can assure you that the full resources of the department and the city were consulted to make that determination. a lot of conversations about the nuances of what the original propertiener was, but all we have is the record. if you look at the original variance letter from 1970 and

why it's being provided it talks in have you flowery language that it would be an open space open to the tenants of the buildings, and it was going to be this kind of great open space, natural plaza for the community. that did not happen. the development context that exists now is very different than what happened then. i would disagree with the appellant, again, that we didn't address the issue raised about parking and why no one's talking about it. our brief directly addresses their question in their brief about the parking and how it was used in the justification of the variance. you're not hearing much of it because the vast majority of arguments being made have nothing to do with that, so that's what you're hearing responses to. and i would also say -- we can have conversations about the parking issue and how it plays

into the justification issue. i'm happy to answer questions about that. i will say that yeah, we were not able to find any other cases that were exactly like this, where a condition of approval was actually placed on an adjacent property, and then, that condition of approval was changed in the past. we then, doing variances since the -- well, for well over 60 years, more than 100 a year in our system simply does not have the capablity to search those that way. also there's limited institutional knowledge to search that. we do have plenty of examples, though. if you take the adjacent property context away where people had variances maybe in the 70's or 80's that required something to kind of fulfill in some proxy a code requirement at the time, and maybe 20 or 30 years later, that code requirement has gone away. maybe policies change, and people come in and request to get that condition of approval removed from their variance or removed from their conditional use authorization because it's really not relevant to the

current context, and that happens fairly commonly, so the idea of coming back to amend a condition of approval from either a variance or a planning commission motion sometime in the future due to a changing regulatory or development context is not at all unusual. i'm available for any questions. >> vice president swig: mr. teague, i'm having -- you just fueled my fire a little bit. the architect fuelled it initially by saying, implying, well, that was yesterday. it's 50 years later, and everything's changed. san francisco's different, whatever, and you just said -- you said the same thing. it's 50 years later, and things have changed, but you're using it in the example why a -- a variance might change, why a situation might change. what's bugging me here is that

we have an owner of an apartment building that's been there 100 years, and that owner of that apartment building bought it with a condition on the title that -- that this area would be open space. there was an n.s.r. on it. it said on the title, open space. now if the apartment was gone -- the original apartment building was gone, no argument. the condition has changed, but this is the second owner. this owner bought it with this condition. the evaluation of this building will severely suffer because those two bottom units will not be -- sure, they may be livable, but they're not going to be as valuable as they were when they had open light if there's a new bmg built next door, so i really disagree, and i find it a little cavalier to say well, conditions have changed on the site, conditions have changed in san francisco. no, they haven't. same old building's there 130

years, and it's just that there happens to be a new owner. and it's very convenient in san francisco -- and i support housing. i think this building should be built because of the housing. i have a problem with that garage, but you all know it's housing, and this building probably got -- might have gotten some very benevolent views because it's housing, and we need housing. but it denies the existence for me of the building sourced there for 130 years and that owner. how do you reconcile that for me? >> well, i think it's important to understand, the variance isn't justified because the context is changed. the point we were making is that after 50 years, a change in context is a relevant thing to consider. and also, the context by which the original variance was

issued. to your other point, this -- the proposal that's happening here is not that different in the framework that -- in the way that you framed it is, for example, the rear yard requirement for this property for 898 north point, assuming -- let's just pretend there was never a variance here, and these were just two adjacent properties. let's say the rear yard is required to be 25 feet. it can be that way for 100 years, and they can amend the code to say there's no requirement, and it's just whatever d.b.i. says for exiting, and maybe it goes from 25 to 10 feet. the reason i bring that up is because this condition was in reliance on a specific decision that was made by the zoning administrator at that time. it was not a private easement that was held between the two properties. so i can definitely understand that there is probably an expectation that if a variance is granted with a condition of approval, it's likely going to stay that way for a long time,

and there was definitely not an expectation that just because the owners of 898 north point had standing to file, that it could be removed. as i mentioned, their original proposal was just completely remove the condition altogether, and we were not comfortable with that. what we were comfortable with was allowing a development there that allowed for a reasonable otherwise code complying development on the north point property without having any significant impacts on the property at 3030 larkin street? >> vice president swig: is there justice -- i see injustice to the owner of the larkin street property because your arbitrary changing of this restriction has devalued the -- it's devalued his property when he bought it on the condition that that value would always be

there by virtue of this -- this -- this restriction. i -- is it not manifest injustice to that property owner? i'm being sympathetic to the hu's. i know they want to build something, but i'm looking at the manifest injustice created by devaluing a piece of real estate which has been owned by an individual long before the hu's showed up. >> i can't make the decision for you whether or not it parking r

is a requirement for that site, and that is basically the only place to be able to provide parking is at that space, and that -- but that's also one of the reasons that we've requested they reduce that -- that partially subterranean level on the parking garage the lowest

they could absolutely get and still fit a vehicle in on that slope, but is there an option they could do that if they were to obtain some type of parking waiver or variance or something like that? i would imagine there is. >> vice president swig: thank you, and i won't hold the time. >> president fung: looking at the chronology -- [inaudible] >> i'm not positive when the sale occurred fu. >> president fung: if that's the case, in 1970, could you have applied for a variance on two properties in one variance? >> when this situation -- and again, it's a nuance situation that we don't get very often,

the variance was triggered by the fact that the lot lines were moving, and that by nature requires the both property owners -- >> president fung: no, that wasn't my question. my question was in 1970, you've very clearly stated that today, you could not apply for a variance that applied to two -- to properties that you do not own. fl in 19700, could you do that then? >> no, and that was the point that i was making, was the only variance was on 3030 larkin street. >> president fung: no. that variance crossed through what was two properties, but that property had already changed hands, and then, the variance was applied for. >> i'm not sure i'm understanding. are you saying the variance application was filed -- >> president fung: was that

variance applied for in error? >> almost 50 years ago, i don't have those ducks in a row to answer that. obviously, the zoning administrator at that time did not feel it was filed in error and that issue was not raised as part of that variance decision. >> commissioner honda: i'm sorry. one question. i've heard the word code compliant a lot this evening. so other than this particular variance, where is is this -- is there any other projects or exceptions to this project? >> no, it's code complying. >> commissioner honda: and on the bulk and size, would they be able to build larger and still be code compliant or are they right at the limit at this point? >> they're not at the full limit in the rear, but they are basically max height and max a.

i guess the -- there's two

questions. one is if the variance was applying to both properties, ad what are are ad what approximated xz awhat -- at wht point does the current property owner take over responsibility for that portion of the variance? and if so, therefore, has standing, contrary to what the appellant's brief has indicated? it's my opinion that the current property owner has standing to deal with this. that variance portion, that one condition, applies to their property. it's the only portion that applies to their property. if that's the case, and the current owner has standing,

then, what we're faced with is the second question, is has the zoning administrator, in his approval of the five findings and criteria, was he accurate in doing so? the appellant's brief raises a couple of things, and most of it concentrates on the other question mostly of standing. in my opinion, the zoning administrator did not err, and therefore, the findings are correct. >> commissioner honda: i will concur. being on this board for the last six years, we've had many permits appealed properties that

had n.s.r.'s the fault lies on t that he sold that property, and

that, you know, he got his building to go noncode compliant on the basis of having that open space and then sold the open space. so i'm in concurrence with my president. >> president fung: further comment? >> commissioner tanner: i also agree. >> president fung: i'm going to move to deny the appeal on the basis that the five findings of the variance decision were correctly done. >>clerk: okay. we have a motion from president fung to deny the appeal and uphold the variance on the basis that the five findings in the zoning administrator's decision were correctly done. on that motion -- [roll call]

kre >>clerk: okay. so that motion carries, and the appeal is denied. okay. we're going to move to item number nine, and thank you so much for your patience. this is peal number 18-130, neighbors of upper cole valley versus san francisco public works street use and mapping. subject property is 1509 slad slaters dsh- [inaudible] >> and we will hear from the appellants first.

>> good evening, president fung, vice president swig, commissioners honda, lazarus, and tanner. i'm brian cedar, representing the neighbors of upper cole valley. thank you for reviewing and hearing our appeal. there are 115 people in our group, and we had about 18 here tonight. we've dwindled down a little bit to 11, but thank you for your patience in staying with us tonight, too. i know it's late for everybody. we're not here tonight to protest wireless cell sites. neighbors of upper cole valley understand respect san francisco's objective to have a process to approve the use of appropriate existing light poles for 5-g cell sites. on this particular permit, mobility did not comply with that process, and mobility does not meet the permit's explicitly

stated conditions and article 25. this is why we're asking the board to please grant our appeal and deny this permit. so there are four major issues. mobility -- first off, mobility did not comply with noticing. some quick details of 37 occupied residents within the circle, 15 attested they did not receive a mobility mailing. the brief -- let's see if i can get this going here. the submitted brief shows that

mobility only notified residents south of market street. it might be a suspect way of deflecting a time honored way of no notification. one copy of the posted notice was very poorly affixed. posted notices would definitely have helped us. neighbors were desperately trying to find a notice and strongly resent d.p.w.'s statement that notices were somehow removed. second issue, mobility failed to forth rightly notify residents of the scale of the work's plan. the photo simulations, commercial photographer across the street from the site cries them as deaccept tiffly photographed, the angles carefully chosen to mask rather than show the scope and scale.

this is one of the mobility photos here. it makes it look like mount sutro is on our street. you have to be down at bumper level to get that photograph. this is what the street looks by to resident. the equipment block was blended into a window in another one of the photos. mobility ignored a significant san francisco guideline for cellular companies to call out those large enclosures for equipment. we've done that in our equipment, so you see that very large equipment box that was not called out in the mobility photo before. there are other -- other things that have changed. this equipment box is huge, by the way, by far the largest of any cellular company design.

you can see this is large equipment. the 5 foot antenna. the equipment box is 35 inches tall, and the scale of it in terms of -- begin larger than any other cellular company, four times the volume of at&t's design. this is right down the street at 17th and stannion. the red shows what the sprint box looks like, and then, you can look at the diagram to show it in a direct downward profile. it's a very large box. we were told there was one antenna. later turns out to be two antennas. told there was no noise, no fans, later turns out to be three fans. third item, we believe this application does not comply with planning condition item number ten, shall not obstruct lighting or views in any residential window. later proved totally meaningless

for all of our neighbors. planning tells us later but leaves out of the notice that private residential views are not considered. thee views that i'm showing here are neighborhood views. these are right-of-way views. you can see why this is an attractive site to sprint mobility, the sweeping views of the city. you can see that even from the street level, the pole and the 7 foot addition on it, the big white antenna and that huge box will definitely impact those views, as well. that's one of the residences, you can see the tower there, you can see a number of views that are affected from homes, but also from people outside. planning also says that because all of san francisco cellular designs from been so stream lined that any residential view by definition cannot be obstructed, this misled

residences receiving the notice. we wanted to show you the box differences that i did previously. item four, the application does not comply with public works condition number two, the notice explicitly assures residents no new poles can be elected or placed in underground districts. why is this one condition so important? it effectively prevents telecom companies from installing larger, higher poles for their equipment. we had our utilities decluttered. we' we've paid for these in the 90's, and we've paid substantial fees for this. summing up, the 25 criteria to grant a permit is that mobility must comply with all the requirements. you can see that they've not. they did not comply with

noticing requirements, they failed to forth rightly notify our residents of the scale of the work proposed. we believe this is not criteria ten, condition ten, and most importantly does not conform with the condition number -- number two. >>clerk: okay. thank you, sir, your time is up. >> okay. no new poles. thank you. >>clerk: thank you. >> president fung: sir, you said something you wasn't quite sure i heard earlier. >> yes, i'm sorry. >> president fung: you said something about the -- that these devices would not be allowed on light poles. i'm not sure i heard that statement correctly. >> the condition that we're claiming is no new poles are to be erected in underground utility corridors. >> president fung: you're proposing that. >> no, that's the condition of approval, and in fact they are installing a larger tower. it's 3 feet taller than the

existing -- excuse me, 2'3" taller than the existing pole that was there. >> president fung: you're saying it was a condition of the permit? >> it was a condition of the permit. clear condition of the permit. no new poles in underground utility districts. here is the diagram. it's clear that they're installing a new pole. >>clerk: okay. thank you. we will now hear from the permit holder. >> good evening. my name is david nagle. i authored the brief for mobility, l.l.c. thank you for your attention tonight. i know it's been a long one. i have several people with me from mobility tonight.

by way of background, mobility is a wireless infrastructure provider that works with other major carriers to improve their wireless networks. in this case, we are working on behalf of our client, sprint, and we are improving the networks where there is a need for additional data capacity. sprint is having active and ongoing failures in this neighborhood, so we've worked with them to identify this location as a location for a small unobtrusive antenna to improve their existing network. as you know there is a robust process for these permits. d.p.w. reviewed the permit application and other submittals in accordance with article 25, d.p.h. reviewed the r.f. study

and the noise study. in accordance with article 25 and f.c.c. guidelines, planning approved and reviewed the aesthetics according to article 25 and city policy, and all found mobility to be in compliance with the rules and regulations of the city. as to the specific complaints, here to address them briefly, the noticing, mobility mailed notice of the ten at thattive approval to all required parties as stated in the declaration. that's part of the permitting process and was included in the brief. we also posted the notice on the subject pole and on an additional pole on the block face perthe declaration in city requirements. the final determination of the permit was also posted on the subject pole and an additional pole on the block face as evidenced by the multitude of respondents and protesters, it's clear the residents were

informed. you know, i can't speak to a perfect reliability of the u.s. postal service, but between mailing and posting, it's clear that the message got out there that we had proposed the small cell site. as to the planning aesthetic views issues, planning found based on our submittals and the photo simulations that the equipment would not detract from the characteristics of the neighborhood. the photo simulations show that no important buildings, open spaces, parks, no new poles, ths

seems to just be a mistake in appellant's interpretation. this is not a new pole. a new pole would be if mobility erected its own utility pole or other pole somewhere along the right-of-way. this is a replacement pole, which it's my understanding now that this is same height as the existing pole that's there. you know, frequently, these poles are replaced for

structural reasons or other reasons as the city may dictate. open of the pole remains with the city -- of this replacement pole remains with the city perour master agreement license with the city, so it is not a new pole, it is a replacement of the existing pole. as to the concerns about r.f. emissions that appellant raised, d.p.h. -- the d.p.h. letter had a clerical error in one paragraph that incorrectly referenced a different piece of equipment instead of the u.e. relay, which is the secondary antenna that's in the rectangular equipment rectangular equipment cl you e are -- enclosure. it was the report reviewed by

d.p.h., so in short, d.p.h. found that the report showed this equipment was in compliance with city policies, which is, in turn, limited by the scope of federal law and the f.c.c. standards. you know, appellant raised a litany of other issues that are really outside the purview of board, including -- of this board, including mobility provides the city -- perother city regulations, and we carry an insurance policy perour master license agreement that covers property damage should any of that occur at any point. so in short, this permit was properly issued, it was reviewed by all -- all relevant city departments. they found we are in substantial

compliance with city policy, so mobility respectfully requests you deny this appeal and allow the project to proceed as originally permitted. >> commissioner honda: i have a question, sir. so how many permits has sprint taken out for this type of application? >> i can't speak for sprint in general because they use other companies like mobility for these deployments. mobility has, at this point, i believe, received perhaps a dozen permits, but -- and we have more applications in, and hopefully more permit approvals to come. >> commissioner honda: so how many permits do you have in at this point? >> my colleague -- about 25. >> commissioner honda: and regarding the notification. this board has hears thousands, with -- heard thousands, with

at&t, thousands, and then, with verizon, a substantial amount, as well. they've claimed that a good portion of the neighbors were not notified. have you cross checked personally those addresses, and if so, were they mailed or not mailed? >> i have not cross checked. mobility hired a mailing service that generated mailing list that required anyone to be notified within the 100 feet radius. >> commissioner honda: so is anyone in the audience that did those cross-references? you brought a staff of how many with you? >> a staff of two from mobility. that wasn't their responsibility, but i assure you it's in the declaration that the addresses for that neighborhood was the ones that the mailings went to. >> commissioner honda: okay. thank you. >> commissioner lazarus: i have a question. >> yes. >> commissioner lazarus: is there a substantive difference between the equipment that you're using and at&t are using?

>> they all have different spectrums, different radios, different antennas, so i can't speak to any other location cited by the appellant. but what we're installing for sprint is standard across most of california, certainly standard across a large part of the country where we're doing this. >> commissioner lazarus: so you don't know if it's larger, wider in circumference. >> it's probably larger than some, it may be smaller than others. it's a broad question that i don't have the specifics for every other carrier. >> vice president swig: how many other sites in this neighborhood did you review as alternatives to this site and if there were other sites that were reviewed, why were those sites deficient to this site? >> right. so the city has no alternative site analysis for these small

cells, and perstate law, telephone corporations are entitled to access to the right-of-way. it's a limited right to access pursuant to following all of their other city regulations, so where we have a need, you know, to address services like we do at this particular location, you know, there's no other law or regulation that requires us to examine alternative sites. we of course try to look at other locations to see if we have other access sites. we can't do other poles in san francisco. we have a license with the city. so we on look at sprint, who says we're having issues in this area, and we look at the area, and this pole was near the center of that area and -- >> vice president swig: yeah, i think i'm going to question your wisdom on that. not because i have any special knowledge, it's just that we --

as commissioner honda said, we have had many, many, many, many of these, and in just about every one of them, somebody on this panel will ask that question, and answer has been yes, we looked at many, many sites, and nobody except yourself has answered that no, we don't have to do that. so i'm going to ask that to d.p.w. because i question your wisdom on that. >> please do. it's frequently a requirement for larger macrotowers or rooftop. >> vice president swig: yours is the largest that we've seen. it's really large, but of -- you know, we've been through this horse -- this little rodeo before, and this is the first time that anybody has resisted a conversation to did you look at

any alternatives, so we'll ask about that. >> we did, and we can't do new poles, so something of speaking of poling was out of -- so speaking of poling was out of our control, and this location was in the city near where they needed it. >> vice president swig: i'm going to plead ignorance along with experience at the same time, and i think we've had dialogue about placing units on top of buildings, and other places, but i'm going to talk to d.p.w. about that, because you don't have that -- you have a one view. okay. thanks. >>clerk: okay. thank you. we will now hear from the departmental representative. >> president fung: so when did you leave the mayor's office?

>> i left the mayor's office at the end of july. good evening, president fung and members of the board. i'm julian 2kgilette, representg public works. article 25 requires public works to refer wireless applications to the department of public health and to the planning department. both departments determined that this application complies with article 25 of the public works code. public works subsequently issued a tentative approval on may 25, 2018 and mobility mail posted this tentative approval on may 30 of 2018. public works held a public hearing on july 9, 2018 to consider protests to the tentative approval. following the public hearing, the director of public works

approved the permit and notice of this determination was distributed to the public on september 19 of 2018. the planning department is in attendance and can speak more regarding planning's review process if the board has questions chl the health department is not in attendance but is able to take questions and answers via e-mails. >> president fung: i have a question. you're now with public works, right? >> i am. >> president fung: can i have the first question? >> commissioner honda: yes. >> president fung: i usually allow the others to go first. it it's interesting, and something i didn't catch at first, but your brief in response to an issue raised by the appellants was that this is not a new pole, but a replacement.

>> correct. >> president fung: how do you differentiate that? they're putting in a new cement foundation. they're newly installed. how is it not new? >> well, it's a pole that's owned by the public utilities commission, and i can't really speak on behalf of them. they're not here this evening, however, they have told us it is a replacement pole, and it is their pole, and the public utilities commission has a standard pole that they use throughout the city, and this is a replacement of that pole. >> president fung: when i read that, i was going to chide the department a little bit, they're word smithing on that, because i said how can this not be a new pole? but now, i see that it has some consequences. okay. >> commissioner honda: go ahead. >> commissioner lazarus: you have a noticed requirement, do you not, once the decision's been made? >> we do. >> commissioner lazarus: and is that the same radius requirement that the applicant has?

in other words, do the neighbors get two notices, one that the permit's been applied for, and two, that the approval's been given? >> there are two mailings. the first is to open up the protest period, and the final is done for the application. >> one is done by the department and one by the applicant. >> no, they're both done by the applicant. >> commissioner lazarus: so there's a chance that the neighbors didn't get them because it would have been same mailing list, radius, etc. >> commissioner honda: same question as earlier. there are neighbors that say they're within the 150 feet required that were not mailed. has your department cross checked addresses to see if they were on the mailing list? >> if you look at exhibit d on

our brief, we rely on the appellant's subcontractor and the packet that's produced is is in accordance with the stipulations provided by the planning department code and the san francisco department of building inspection. >> so what happens if there is residents that are within that 150 that were not on that mailing list? does that make it deficient if they're within the 150 feet? >> no. the code requires there not mailing to residents and owners. >> commissioner honda: but if they're not to, that makes it a deficient notice. >> what we point to in our brief is that we received timely applications or timely protests,

and we received some protests prior to the close of the protest period. >> commissioner honda: and you know being on this board for a little bit, we had where there was errors in the mailings from these companies, and the question is is that if the permittee is supposed to send out notification, and it's a third party, and they don't send out that notification, in my eyes, that would make it deficient. >> i can't speak to that. the department relies on the affidavit of the subcontractor under penalty of perjury. >> commissioner honda: so that was my question. so what happens if you're relied on the contract subcontractor, and the subcontractor has not performed. so what's the next process for the city at that point? >> i believe that, you know, i would have to get back to you on the answer -- that's a process question, generally, that we would have to i think respond to subsequently on that. but my understanding is what we

rely on is procedure that's consistent under the planning code and by the department of building inspections. it's the same process that all of the other agencies use in their notifications. >> commissioner honda: okay. thank you. >> commissioner lazarus: i have one other question, and i can't remember if this is for you or your planning. but again, i think we've had predominantly lately verizon cases, and there was some discussion that there had been some effort to collaborate on the smallest piece of equipment that would suit their purposes. is that something that would have been d.p.w. or was that more likely planning that was -- >> that's much more in planning. our processes is focused on the public notice. >> commissioner lazarus: okay. thank you. >> vice president swig: can you address my question that i offered to the gentleman from mobility. >> i'd be happy to, if you could ask it again. sorry, it slipped my mind. >> vice president swig: sure. it's in past hearings, there's

always -- the public is generally upset about this. nothing new, but always a question is raised, always, 100% of the time, a question is raised, did you seek another site in for example, we had a -- one on clay street between spruce and walnut or spruce and laurel, and very clearly, verizon said oh, yes we did. we went to great lengths. we found one a half a block away, we found one on top of the highest building in the neighborhood, and really, we found that those were deficient, but we tried, okay? and that, i promise you, was not an exceptional answer, that was consistent with our experience 100% of the time, not most of the time. were there any other sites that

were investigated as alternatives to this site? >> so i couldn't answer that question because the public works process -- we come in at the tail end of that process, so the applicants do their process -- you know technical process on where they want to put the pole or where they want to put the facility. they have the right under state and federal law, and they have a license agreement whether it's with the m.t.a. pole or a p.u.c. or pg&e. they make that determination with the pole owner, you know, about which pole they want, whether that pole works technically, and that determination's already been made by the time they come to public works. public work's process under title 25 is entirely under notification process. >> vice president swig: and that is done by whom in the

city? >> so there are three pole owners in the city and county of san francisco. there are -- there is pg&e, there is san francisco public utilities commission, and there is the m.t.a. so many of the m.t.a.'s poles are also p.u.c. poles because the m.t.a. strings its infrastructure off those poles, but there are poles that the m.t.a. has, and it contracts those with the carriers. >> vice president swig: but this is beyond that. somebody can comment on this so i'm not hung out to dry too badly, but we had another one on fulton street, and i recall this. they look at a building, not a pole, a building down the street because there was furious disagreement from the community. there always is. they looked at a building down

the street, they looked at a pole down the street, and again, the same consensus from verizon, this is the only place we could put it. it wasn't an m.t.a. decision, it wasn't a p.u.c. decision -- >> commissioner honda: commissioner swig, can i interrupt for a second? >> vice president swig: what am i missing? >> commissioner honda: no, no. is it required to look for alternative sites? so that's the thing. i think prior, because verizon and at&t had so many cases before us so that they did not -- they tried not to come to the board of appeals, that they did alternative sites. >> vice president swig: so you're telling me you like verizon to at&t.

>> commissioner lazarus: buildings -- these do not go on buildings, they go on poles because it's a completely different facility. >> it's not required under article 25. >> commissioner honda: thank you. >> vice president swig: and one more short one, to follow up on commissioner honda's question -- i think it was commissioner honda. it's late, and my short-term memory is going to heck. it wouldn't be the first time that a third party vendor made a boo boo, and that we have had several occasions where there has been bad noticing. they just -- bad noticing. it's a mistake, but in my past experience at least, again, i'll rely on the panel to support or deny my position, public works really was on the case and said no, we looked at the -- you know, we validated that this -- you know, the mailing list was

done correctly, and so i'm finding a different story from any -- you are new to us, in front of us, but i'm finding a new story from this person and less reconciliation of what did or did not happen, which i'm finding a dangerous precedent or a dangerous direction because we really don't know if they made a boo boo or they made it right. so -- >> is that a question? >> vice president swig: yeah. >> can i have a question? >> vice president swig: yeah. so what happened to follow up? what happened to -- i mean, your predecessors, both who have tangled with us all with these types of questions, why -- why the change -- why the change in position with the change in position, that you don't look after and follow up on was the mailing done correctly? >> well, so i will rebut your comment, i guess, or in partial answer to your