Skip to main content

tv   [untitled]    April 27, 2011 12:30am-1:00am PDT

12:30 am
and order further environmental review. thank you. president chiu: thank you, next speaker. >> how does this work? my name is david cromey. i was the appellant the last time. i am here in a different role this time. i am not a member of the advisory board. and i am here to talk a little bit. there was no problem with the installation of this box. here is another picture. here is another box in oakland. they are all taken care of by at&t, right? there is even a phone number to call. i have a question to ask you.
12:31 am
do you honestly feel that san francisco would be more beautiful or less beautiful with these boxes? that is your charge. that is a question i would like to have your answer to. about competition, i know we all hate come past because they are the only game in town, but here is an example of competition. most of you have i phones, probably by at&t. i have an iphone by verizon, the new competitor with the same technology. did your rates go down when this came on the market? the want godown. -- they won't go down. they are not point to lower the rates, because they can do it together. president chiu: thank you. i would like to welcome back our former colleague, supervisor jake mcgoldrick.
12:32 am
>> thank you very much. i have not come back to testify in the 2.5 years since i got turned out of this important body. but this is i think a very important issue. i think you need to essentially hear the testimony, and have heard the testimony -- i was watching it on the television, and realized that this issue really does have the cumulative impact. you can segmented all you want. the issue of cumulative impact -- for a quarter of a century, this has always been an issue that has had to be fought repeatedly, over and over again, because there are certain interests that did not want to have to go to the dictionary and look of the meaning of the word cumulative. it is pretty clear.
12:33 am
i am back to being an english teacher now. i tried to make sure we elucidate the full meaning of lexical items and not practice of some -- practice obfuscation. it is important that the legal argument be the heart of what you need to decide today. i think there is a strong lobbying effort and political pressure that can be put on you. if you can set that aside and see what is in front of you in terms of the items that have to do with locating and class three exemptions and the language that ms. grant holly has been able to present to you -- even the items that have to do with public notification are troublesome. i think the heart of the matter is this needs to be sent back. it needs a full environmental review. the word culture is a huge word in terms of what is happening to our city.
12:34 am
consider that the cumulative impact on this is real and needs to be taken into consideration. let me take a moment to wish my wife a happy birthday today. [laughter] supervisor elsbernd: i know two minutes is a little tough for you, so maybe i can ask -- [laughter] maybe i can ask you a question. any good definitions of cumulative? >> my daughter is a biologist and a chemist. cumulus clouds are clubs that make other. they may not in because precipitation. but i think this hearing has caused a precipitation of thought and emotion. it will not cause us to get wet here today, but i think you should keep your powder dry and try very much to take the issue as it comes before you, and deal with the fact that there are a
12:35 am
lot of things on our sidewalks. i lived in paris for about 4.5 years. every time i go back to a beautiful city like paris, i see the sidewalks more and more beautiful. one thing we used to find it useful was the [ unintelligible] this needs to stop being a clustered city, as paris has become, to the detriment of that beautiful city. president chiu: are there any other members of the public who wish to speak on behalf of the appellant? if so, please step up to the microphone. any other members of the public wish to speak on behalf of those who are appealing what at&t wants to do? if not, why don't we proceed to a presentation by planning.
12:36 am
>> good afternoon, members of the board. i am lisa gibson, a senior environmental planner with the planning department. joining me is john lewis, who prepared the categorical exemption that is the subject of today's appeal. also, we have guests from the department of public works. we sent to two appeal response memos. one of them arrived today because we were responding to an appeal letter we received late friday. if you need extra copies, we have them available for you now. after careful consideration of the issues raised in the appeal and public testimony today, the planning department continues to find the project is exempt from environmental review. the decision is whether to uphold the planning department determination that the product is exempt and deny the appeal or to overturn the cadx and return
12:37 am
it to the environmental planning department. in our assessment, the planning department reviewed at&t's upgrade and determined it is categorically exempt under one of the classes of the exemption that is provided by the ceqa guidelines. there are 33 clauses of projects that are exempt. these generally would not have a significant effect on the environment. we fund the project is exempt for installation of small equipment and new facilities in small structures. the department responses to the appeal addressed all the issues raised in the appeal letter and the testimony today, and we would like to focus on four main points. these explain why we correctly concluded that the project is categorically exempt under the class three exemption. the project does fall within the class one exemption. secondly, none of the exceptions -- exceptions apply here.
12:38 am
the project would not have a significant effect on an environment. for this reason, and eir is not required, nor is any medication -- any mitigation. regarding our first point that the project falls within the definition of class 3, we have heard some discussion on this matter. what we have is a difference of opinion about this. the planning department ascertains that the project does fall squarely within the class three exemption. there are three types of exemptions, project exempt under class 3. one of them is the installation of small new equipment and facilities in small structures. the appellant maintains that because this phrase does not specify that the equipment can be in new small structures that therefore it does not apply. we disagree. the language under this class 3
12:39 am
preamble is not always specific when it is an existing facility versus a new structure. we think it is a reasonable interpretation for structures of this nature that installation of these small structures and equipment in small structures would be under this class. this category does not limit the number. second point is that none of the exceptions to the categorical exemption apply. one exception is that the project would not be exempt if there is a significant effect on the environment due to unusual circumstances. we do not think any of the unusual circumstances provisions apply here. these structures would be installed within the existing urban context, which includes other similar structures, utility structures and other types of structures such as traffic control boxes, bus
12:40 am
shelters, newspaper racks, and kiosks. therefore the cabinet cannot be considered an unusual circumstance. for the same reason, this exception is not applicable to aesthetic and other impacts that would result from installation of these structures in the right of way. in evaluating potential aesthetic impact, we acknowledge that the proposed cabinet may be considered an attractive buy some. they may be considered to be an undesirable element in the urban environment. we acknowledge that they could be considered to be a negative effect. but under ceqa the issue is not whether there would be an effect, but whether it would be a significant effect. the fact that we are dealing with the cat the coracle exemption does not change the primary question. the exceptions to the categorical exemption state that the exception would occur if there is a significant effect. this applies even with regard to the point raised in the
12:41 am
exceptions for a cumulative impact. it is only if there is a significant cumulative effect. we have reviewed the materials provided and do not find there has been evidence presented that there is a significant effect. president chiu: could i ask a question about that? many of us would agree that if this were seven boxes we would not think about this as a team of the impact, or maybe even -- maybe even 72. but 726 feels like a cumulative effect. what would be, according to the planning department, the cumulative impact that would be significant enough for you not to consider this exempt>> i wiln first with regard to aesthetics. considering whether the project will result in a significant effect, we first a look at the
12:42 am
number of different questions that we can ask. the one that seems to be the focus of attention today is whether there would be a demonstrable-the fact of the aesthetic. we would look at whether it would result and the fact that is relevant. we considered whether there would be a considerable demonstrable negative effect. we had knowledge that there may be an environmental effect that is adverse with requirement -- we consider looking at the entire project that involves -- they would not be placed in any two facilities. they would not be in immediate proximity to one another such that the effects of two or more would be additive.
12:43 am
they would not be visible from a given location. in terms of pedestrian circulation, you would not have an added to the fact -- additive effect. president chiu: they would not be visible? >> the boxes more than one would be not visible to a given viewer from a single point of view. you would not be able to see more than one of these cabinets if you were in a given location. you would be able to see them clearly. because they would be dispersed throughout the city, each installation is proposed to be within 300 feet of an existing cabinet. they identified those existing facilities, and they are
12:44 am
dispersed throughout the city. we don't find that there is a potential for the multiple locations proposed to result in the fact that a given site -- and defects -- in effects at a given site. at the analysis, we looked at cumulative impacts. there was a question here today about definition. it would be useful to look at the definition of cumulative impact that is provided in the guidelines. the cumulative impact refers to two or more individual a fact that are considerable for which compounds or increase other environmental impact. the individual effects might be changes resulting from a single project are a number of separate projects. the cumulative impact is the
12:45 am
change in the environment the results from the incremental impact when added to other foreseeable future projects. for our analysis, we considered the impact of the project as a whole, we have an acknowledged there is more than one location. we evaluated the impact of the project by itself and we considered if there are any other projects out there that would result in the installation of facilities of a similar nature that could come by in the impact of the project. it would not result in a significant environmental effects. with knowledge there is what would be considered a negative affect or an impact. is there a significant cumulative effect? it did not find that is the
12:46 am
case. we did not see any evidence that would tell us otherwise. >> your test seems to be if you are standing at one box he can't see another box? >> i provided that as an example for the purpose of asthmatics -- aesthetics. in the example, this is a matter of visibility, that there be a visual impact. you would not be able to view more than one facility. we also consider the effect of the project as a whole. and whether it would have a demonstrable a negative affect on the city. just the placement of these,
12:47 am
could degrade the urban environment to such a degree that there would be a substantial adverse effect? there doesn't seem to be evidence if that is the case. >> if a driver or a cyclist is going down the street, it will likely be seeing the box after box. >> the example is perhaps that a driver would be going down the street or pedestrian, and they might in the course of their travel observed more than one of these proposed cabinets. >> it could be every other block, perhaps? >> it would depend on the individual circumstances of where the cabinet is.
12:48 am
the base of the information provided, it would not be located in more than one of them on a given block. to the pedestrian or motorist who is traveling along and observed more than one of these, we think the aesthetic impact of that is less than significant, because the views observed would be entered into and temporary. the profile of these structures, the nature of then is that they are relatively small and the context of the broad visual environment. it would be in the context of buildings and street lamps. they're not going to be so prominent that we think of pedestrians or motorists noting every time they pass it to the extent of the environmental effect.
12:49 am
president chiu: it could be a matter of interpretation. what you think of as pleasing and not be what others think when we walked down the street. >> that is correct, it is subjective. supervisor wiener: i have a question similar to what i was asking the appellate before. we have had discussions around the potential or not potential of undergrounding as well as other ways of removing boxes from the right of way. we have also had the discussion, maybe not today, but it was referenced in the planning department document whether other carriers might want to enter the market.
12:50 am
and with that, the impact instead of 700 boxes, we're talking about 200 boxes. there seems to be some either confusion or dispute about whether these kinds of factors are relevant in determining what the issue. the planning department did refer to each of these items. that these are items to be evaluated during an environmental review. my question is, are these relevant? >> if i may respond to the question, if i understand your question, one item you raise is
12:51 am
the matter of underground. for the purpose of the environmental review, our charges to the value in the project as proposed. we evaluate whether it would result in a significant environmental effects. we can consider whether there are mitigation measures or changes to the project that would reduce those impact to a less than significant level. we are also obligated to consider alternatives to the project. the project that came before us, the above-ground technology, we did not find there was a significant environmental effect of that. the department of public works does require that the applicants for excavation permits that would result in installations of
12:52 am
the equipment in the public right of way demonstrates that they looked at the possibility of an underground technology. there must be a safe effort to determine if it is technologically or economically feasible. and >> let's assume everything goes well for at&t today. if a neighbor objects and a notice is given, they object to a box. there is a hearing. how would they be able to argue that they need to underground this? is that a feasible alternative? and if they reject that appeal, as the board of appeals? >> i am seeing a nodding head over here.
12:53 am
i would like to defer that to him if i may. >> the process for the facilities are very clear within the order. the department provides notification to the public. if there are objections, it would go to a department a hearing. at that juncture, the citizen would go by the provisions. it would go by what is feasible, what is not, which is appropriate and what is not. there will be a recommendation by the hearing officer for final decision whether to approve or deny this facility. that decision is appealable to the board of permanent appeals. >> i understand the process. my question is let's start with the underground of what is the
12:54 am
appropriate time line in terms of when it is appropriate to evaluate that. and do we evaluate that at that stage? evaluated? doesn't get evaluated by the board of appeals? this seems to be a lot of confusion as to where that kind of alternative fits in in terms of the decision making process. i want to get clarification from whichever department on that. >> i would be happy to answer that question. in order for a project to proceed with entitlements, he must first be reviewed to determine if sequel provides. -- ceqa provides. we conducted our assessment as proposed and did not include undergrounding.
12:55 am
it can move forward for review under any required permit. my understanding is the review for feasibility. >> it would be precedent for other permits? would there be litigation of this specific issue and the board of appeals? >> the dpw order spells out a process, a series of steps before dpw would issue a permit. before the applicant can request a site visit, he very beginning of the process, they
12:56 am
must show that they made an attempt to enter into agreements with private property owners. they must also be able to demonstrate at that location that they have considered underground. that it is not technologically or economically feasible and the location. once they have gone to that point, it will conduct a site visit. they will engage in the permit review process. the environmental review needs to be done before any permit decision is made by the department of public works. there is a process where they will have three locations at that particular site.
12:57 am
a notice will be sent out for those particular locations as to which of those sites is appropriately. all of those things typically cut-before the environmental review is done. no decision has been made at that time. >> they did issue a permit, or maybe it was just that it was requested. they made a decision as of today about whether or not it is feasible. >> away that this matter brought before the board of supervisors is that the categorical exemption was issued by the planning department for all 726 boxes. but an appeal is not timely until the first permit related to the project is issued.
12:58 am
they went through the steps. they considered an underground at the location. the understanding is that they considered the issue about whether at&t approached the private property owners. they did issue the permit. at that time, it was right for them to bring an appeal to the board of supervisors. >> they have made the determination that is not feasible? >> that is correct. >> can you explain the basis for that determination? is it global or something specific to this site? >> and the department evaluated the location. it is at the corner. there is currently a box at that location.
12:59 am
it is surrounded by hedges and other vegetation. the proposal was to install a second cabinet. we evaluated the underground of the box ha. remove all of the vegetations that would provide a situation where it is more unsightly and by exposing the existing cabinet. that would not be inappropriate location at this case. >> the results might be different? hong >> correct. >> it is not globally unfeasible to do it? >> as technology changes, we're supposed to go back to all previous year's applicants. they evaluate changes to technology. as it moves wa