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tv   [untitled]    April 30, 2011 7:30pm-8:00pm PDT

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alternatives can, you're saying you haven't seen proof that it can be undergrounded or on private property but you don't have objective analysis of that. that's what you're going to get in the e.i.r. process and once you get that information and information about mitigation, then you're in a position to decide how these boxes should or this technology should go forward. but to say we're not going to do an environmental review because we think they already have a right to be there, i've seen that also with cell towers and i had a case in southern california where there was a question about placement of a cell tower and even though there was federal reemmings argued, the city had the power to apply its zoning ordinances and other land use preferences to something that they knew they couldn't say no to completely. supervisor wiener: so it's your position then that after an e.i.r., the city would have a right to place conditions on the project but not maybe or maybe not actually kill the project.
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>> i have no idea. i was talking -- tauk taking your hypothetical. i don't know that to be true or false. but when you have an application, you follow ceqa which gives you the obligation to apply feasible mitigation and alternatives. now, if something's legally infeasible because you don't have the right to impose it, that would not be a feasible mitigation or alternative. but you certainly don't have all that information here today. >> maybe i could ask the question to the city attorney. president chiu: i think supervisor avalos wants to follow up on a question. supervisor avalos: similar question but it's a follow-up on that. the categorical exemption as far as 726 boxes, yet we're looking at a piecemeal way. how is that? isn't that a violation of ceqa? that would have to look at the project in its entirety rather
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than the piecemeal fashion? >> john from the city attorney's office. i think this -- i would disagree with how this is being characterized as somehow piecemealing or seg mentation. that's a concept in ceqa that if the environmental review itself doesn't look at the entirety of the project, and certain pieces of it left out, excuse me, out of the environmental review, that would be piecemealing or segmentation. here the environmental review that the planning department did looked at the entirety of the project, it looked at all 726 cabinets that each will go through a separate ter mitt process. it's -- permit process. it's not that different from most projects that come before the city and county of san francisco where there are multiple decision or multiple permits issued for a project. but there's a single environmental analysis and as long as that covers the entirety
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of the project, there is no piecemealing or segmentation. and so what is before the board today is the entirety, it's the categorical exemption for the entirety of the project. the way it came before the board today is because it was triggered by the very first permit that was issued in furtherance of this project. so without having that one single -- that first permit issued, apellants weren't in a position where their appeal was ripe and finally ready to come before the board of supervisors. supervisor avalos: i'm just concerned that, out of 726 boxes and we're looking at maybe individual permits, as the apellant has said, possible mitigation measures that are applied for permit, per box, that we are in fact -- would be creating conditions that would trigger environmental review. >> again i would disagree with
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the apellant's characterization of d.p.w.'s regulatory process for review and any conditioning if necessary of permits as being mitigation. it's an adopted regulatory program of the city and county of san francisco, it's an objective program, it applies to all facilities and there's a recognized process. so it's not as if there are specific mitigation measures for a specific project that are actually linked to this. it's much like, for example, the city's suppression program which is a regulatory program in some other places that might be viewed as the mitigation -- supervisor avalos: but it's for 76 individual boxes and not for a network of 76 boxes. >> the categorical exemption looks at the entirety of the project which is a 7 -- which is
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the 726 cabinets. it's the entirety of the project, whether it's a network or a project, it's the same thing that was analyzed. the entirety of what at&t proposes to do, even though they will come in permit by permit and go through -- supervisor avalos: and the fact that any one box may require some special placement or some special conditions for it to be installed, that to me is a mitigating measure and i'm not quite clear, to me if we're looking at a whole thing over the whole network and you have one box that creates a mitigating measure, you need to have a mitigating measure to put that box in, to me it seems like it would trigger an environmental review. i don't want to go around in circles. it seems there's a real difference in how we're looking at it. >> i think what's happening,
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again john from the city attorney's office, is there is the apellants are equating mitigation that would be required under ceqa which is for a significant environment impact. there are e-- they're equating that with a permit review process that might impose conditions in terms of design, location, screening, various requirements such as that. supervisor avalos: and those different permits can be considered in an accumulative way as well, that have a larger impact citywide. that's i think what the link is that's being made. >> that's correct. and the categorical exemption that the planning department did look at considered the cumulative issues of having all of those 726 cabinets in the city.
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supervisor campos: thank you. just wanted to have dish wanted to have a follow-up question on these this discussion about the notice. let me say that my experience has been that at&t has done a lot of outreach to various communities, certainly in my district a lot of outreach was done. but in terms of this notice, besides the point that you make about ceqa, is there a brown act issue here? because the notice is supposed to provide anyone who could be impacted by the government action that's being proposed, reasonable notice of what is being -- what could potentially be acted on and the way that the notice reads, it gives the impression that the only issue that you're looking at is the placement of a box at this particular location in when in reality you're talking about 726 boxes.
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so is there a brown act issue here that you have a process which probably under ceqa is the proper process but as written doesn't really give members of the public an adequate description of what is being decided? through the chair. >> through the president deputy city attorney, you both are raising a good point. in terms of the notice here. and i would agree that it is not -- it is a little less than crystal clear that this appeal is dealing with the 700 cab nets but i think -- cabinets but i think arguably the title of this notice says, it references the entire project, and then in the second part of the paragraph it discusses the cadex itself and what it does. and, for example, that it describes the project as involving placing additional fiber through at&t's existing
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copper conduit and references communications cabinets, so this -- if you read the entire notice, it does reference the cadex that it's being appealed from. the way to correct this if you're feeling this is less than perfect would be to renotice the hearings. but the problem with that is that of course we don't know whether the remain -- whether where the remaining 700 and something cabinets would go so there would be no way to know where to send -- where to send the letters. >> through the chair. isn't the whole point here is that you want to give a more reasonable description of what you're deciding so i don't know exactly who the notices are mailed to. but for purposes of the brown act wording, maybe you do reference that, that will be, you know, the number of boxes that will be placed in locations
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to be determined. from looking at this notice, because it references a project located at a specific address, and the word is singular, project, i can see how someone could read the notice and come out with the impression that in fact you're only talking about one box, i can also see how the point you make is that the reference to a cadex implies that there could be more. but again, the test here is, you know, what a reasonable person reading this language in the ordinary course of business would think. but again, this is an issue of how the city put together the notice. it's not -- it's nothing about the substance of the project or the project sponsors, it's simply about looking at this notice, it may comply with ceqa but i don't know if it actually complies with the brown act.
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president chiu: supervisor mar. supervisor mar: thank you. i know my colleagues are raising a number of issues on how the semantics of ceqa law and other issues are really vegas and this is very subject -- vague and this is very subjective decision making. i sure feel like i wish with i had more time to look at the various definitions and to see the case laws, but one of the issues that is in dispute, don lewis and lisa gibson from planning will be presenting in a moment, but i just wanted to ask ms. brent holly to respond, it seems that san francisco beautiful is arguing that the project of the 726 new metal cabinets should not have been categorically exempted because under class three which you're arguing, they're not considered
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726, they're definitely not lamented number. but mr. lewis and mrs. gibson may be arguing in a moment, i don't want to put words in their mouth, but my understanding is they're going to claim that of the three types of projects, that it's not that first type that you're arguing but it's the second type of project which are the installation of small, new equipment and facilities in small structures that should apply and not -- doesn't involve limited numbers but i'll just ask to you respond, why does your type one apply and not type two of this class three of categorical exemptions? .my point is that if you read those they are almost an identical. one is to locate in limited numbers of small structures. the second is installing new equipment and facilities in small structures. what is the difference? the only logical answer is one of them talked about locating
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them and one talks about installing equipment in them. that was my interpretation. i do not think it matters very much. the limited number i think is important. but even if it fits -- even if there is substantial evidence to support your staff that that is a reasonable interpretation, especially if there is a case i am not aware of on this particular point, there are exceptions. this exemption is in applicable is -- is not applicable when there is cumulative impact. all of the lists on class 3, they talk about three things, not 726 things. it is not just a trigger. the whole idea of a category is that these are things that should not create a problem. if there is a reason to think that there is some other
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environmental problem, that there may be a problem, supreme court case law says if you have evidence that there could be a significant impact, do not do the categorical exemption. i do not know if through the chair i need to wait for a question. president chiu: we appreciate your perspective on the notice issue. >> i think there is a problem with the notice and it underscores, i think, a couple of contradictory things we're hearing from the city attorney's office, respectfully. there was a representation made that the staff reviewed this. there has not been environment for review. there has been no environmental analysis. there is an exemption from the analysis. the state said all 726 or looked at and there were found to have no impact. that is not borne out by the record. lee also heard from the city
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attorney that how could you notice this whole project, because they do not know yet where all the boxes are going to go. there has not been analysis of 726 boxes. all they said is they would apply certain criteria. the regulations provide for discretionary review to reduce environmental impact. those are the magic words that trigger ceqa. the resolutions you have to locate and improve boxes based on minimizing pedestrian safety, reducing is that the impact, protecting historic neighborhoods -- all the things in those regulations are not exempt from ceqa. those are discretionary considerations that beg for environmental review. i believe in a test is inadequate. we are here and would like to present to this board. we do believe the notice appears on the face to not give the public understanding of what was being considered here today. supervisor avalos: actually, you
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asked my question. it was answered. president chiu: thank you. supervisor weiner: with respect to the brown act, i do not know if it matters, but in terms of -- the agenda is not in a vacuum. their attachments to the agenda, hyperlinks on the website. and i believe they are in the binder in the clerk's office. that includes all the documentation from the planning department, which made crystal clear this was about 726 boxes. so i am not sure. i am not an expert on the brown act in terms of whether you just look at the face of the agenda or all the attachments, but anyone and glancing at the attachments would know this is about the entire project. i also have a question. given that the appellate are now
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taking the position that this is the brown act violation, i do not know whether it was, it strikes me that it might not have been, but if they are taking that position, i have concerns about conducting a hearing and then having the appellants potentially raise the issue in court later. then the whole process topples down. i would request guidance from the city attorney. i was hoping that even if we were able to continue this item that we would at least be able to hear from all of these people and close the hearing. what i don't want to do is go through a million hours of public comment, have everyone sit through that, and then have the appellant take the position that this was the brown act violation, and have to waste everyone's time again. i want to get verification on that, given the statement by the appellants that they are officially taking the position that this is the brown act violation. i am surprised to hear that
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position, but they have taken it. >> deputy city attorney cheryl atomdams. i think this note is indefensible. the bold title does reference the entire project. the secondary per preference is the entire project. it references the cat? -- the cadx. that is available in the file and relates to the project in its entirety. the situation is a unique one. normally what happens when we see land use projects coming before the board, it is one project and one determination from planning. i can see why someone would argue that this is a bit different. but you have to understand as well that this -- the only way that this came before us was to have an appeal related to this.
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once a permit has been issued, that is what triggers the board's review. and there is a statute of limitation to make the claim. i think it is defensible. i can also see how someone else could disagree. the remedy, if you are concerned that the notice is deficient, would be tore- note is it and to conduct another public hearing. supervisor weiner: again, my concern now that san francisco beautiful has raised this issue is that if we go forward, unless they affirm the cadx -- it just creates problems down the road. i am skeptical there is a brown act violation. from what i know of the brown act and from what i have seen here, it is likely there was not the brown act violation. but it concerns me to hear the
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appellant taking the position is. i think it is unfortunate because i know the appellant has brought many people here, who have taken time out of the middle of their day and have potentially wasted their time if this is somehow an invalid hearing. i am disappointed to hear that are taking that position, but that is what i just heard. that is the concern i have now. president chiu: let me suggest the following may -- falling way to move forward to this. are there any of us to believe we should re-much as this hearing and hold another hearing? -- re-notice this hearing and hold another hearing? we could vote on that. we could end this hearing now and what does it again for the future. but at this point, the 11 of us to believe this has been noticed properly. let us put that on the record. a future court can decide based on any appeal of this case the
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weather the brown act was violated. i suggest that as a possible way for us to move forward. supervisor campos: let me say that i do not believe that we should re-much as the hearing, -- re-notice the hearing, but i do think someone could make a reasonable argument that it was a brown violation. i do not think they are mutually exclusive. president chiu: point taken. any other comments or questions? think you very much. we will probably hear from you later in the proceeding. i have a number of speaker cards here with regards to individuals that wish to speak on behalf of the appellant. i do want to ask. ms. brandt hawley said there are individuals here to potentially speak to the issue of whether it would be possible for these boxes to be faced -- placed on private property or to be
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underground. this is an issue many of us have questions about. i would like to ask if members of the public who are going to speak to that could please step up. supervisor elsbernd: if you can just explain to me before those folks speak -- how does that issue relates to whether or not categorical exemption applies? president chiu: if it turns out that these boxes can actually either be underground or placed on private property, i think on its plan face many of us would believe that the situation of impact to the environment could be mitigated and ought to be looked at. at&t has taken one perspective. we have heard a different perspective from the appellant. supervisor elsbernd: fair enough. but i do not think that answers the question of whether captive orca exemption applies.
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it applies or does not apply regardless of whether it can go to private property. president chiu: i think we might have a difference of opinion. are there members of the public who can speak to that? if you can please step up to the microphone. >> i worked as an architect and am familiar with land use issues. there are a number of locations were fences and yards across the public right of way. there are side streets where blocks turn and people have a side yard and sent directly abutting the sidewalk. that happens all over this city. it would be a simple matter for at&t or another utility to sign an agreement with the property owner to move the band back
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three or 4 feet, create and build job -- create a little jog, and have their equipment accessible. that is one example of how these can be placed on private property throughout the city. president chiu: we have a lot of speaker kurds but i know a lot of colleagues have questions about this issue. >> i am a past president of san francisco beautiful. i will stick with the specific item. the overall concern we have for the eir is we are lacking up to activity, transparency, and up- to-date review of available technologies. i and other members of the city hall family sat too long meetings in 2005, when we did determine that utility boxes are a blight. part of that is an annual review the available. that meeting was last held in 2006. that has broken down.
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that is one more reason we have an -- we need an eir, to get caught up on objective review. there is a country called power wave. i am not an electrical engineer. but i think we are unduly relying on the presentations of a single vendor or telecom. there is a company that has units that worked either on hydraulics on a foot lift -- or on foot lift, and this is an alternative to putting these boxes on the surface. i asked them about the moving parts, the issues of moisture, and so forth. that is what these are designed for. the have footprints of four by six on some of the many units and 12 by 8 on the larger ones. this is not a technology review session, but this is an example of what we would expect at the other end of an eir --
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mitigation techniques. what gives me concern is that at&t, every time we mention underground, pull out a picture of an underground facility that requires more hardware than the box itself. it is like a bunker or an underground living room. this information is published in 2008. we as citizens to leave things have to have advanced. -- believe things have to have advanced. president chiu: in the defense by at&t of why the categorical exception is permissive here, they defend the fact that at&t believes that it is not technologically practical to underground the cabinets. they raised this themselves as an issue. supervisor elsbernd: thank you,
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david. the question for the city attorney. just to clarify what we just had. i believe what you are getting at is the notion that the expert testimony we have just received to get at the cumulative impact -- just to be clear, the application here, do we not need "expert testimony" to establish that, or is anecdotal evidence sufficient to establish cumulative impact? >> i am from the city attorney's office. the ceqa law kind of bounces around, depending on what the particular physical environment impact is, whether just the opinion of the layperson, an individual, is something that
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would be taken into consideration, or kind of things like traffic, where more experts, or people who are certified. there, it also depends on the particular setting. there are some instances -- for example, there is a recent case in berkeley where some citizens felt the aesthetic impact on the environment in berkeley were inappropriate. that was their position. the court did not accept that as a basis support a finding of visual impact. but there is another case where there was a shed in a rural watershed area where hikers observed there would be visual impact. sometimes, it is the setting that depends on the relevance. supervisor elsbernd: what i am trying to get at is the testimony received on the issue of whether or not these boxes can be placed underground.
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respectfully, it does not meet my standard of expert testimony. you are a great guy, but i would not call you an expert on this issue. i would think if we are going to make any findings on this we had better get some more expert testimony than what we have heard thus far. >> i might add we do have the department of public works here. they can speak to the engineering issues undergrounding the kind of facilities that are at stake here. president chiu: i think part of the issue for many of us is whether the planning department should have done a full eir in order to look at whether or not there is additional testimony on the other side of this issue. that is a question many of us are wondering at this point. why do we proceed to the rest of why do we proceed to the rest of public comment?