Board of Appeals - Regular Meeting

Okay, good evening, and welcome to the July 15, 2026 meeting of the San Francisco Board of Appeals. President John Trusvino will be the presiding officer tonight, and he is joined by Commissioner Jose Lopez, Commissioner Robin Abad, and Commissioner Lily Wong. Vice President Rebecca Soroyan is absent tonight. Also present is Deputy City Attorney Jesse Minardi, who will provide the board with any needed legal advice. At the controls is the board's legal assistant, Alec Longway, and I'm Julie Lamar, the board's executive director. We will also be joined by representatives from the city departments that will be presenting before the board this evening. Up front, we have Corey Teague, the zoning administrator with the planning department, and Daniel Speicher, senior planner, also with the planning department. From DBI, we have Richard Sarnson. He's the acting senior building inspector with Plan Review Services. We also have Gregory Slocum, commercial permit manager with San Francisco Public Works, and Kimberly Bustos, program lead for wireless permits, also with Public Works. The board meeting guidelines are as follows. The board requests that you turn off or silence all phones and other electronic devices so they will not disturb the proceedings. No eating or drinking in the hearing room. Appellants, permit holders, and department respondents are each given seven minutes to present their case and three minutes for a rebuttal. People affiliated with these parties must include their comments within these seven or three minute periods. Members of the public who are not affiliated with the parties have up to three minutes each to address the board and no rebuttal. Mr. Longway, our legal assistant, will give you a verbal warning 30 seconds before your time is up. Four votes are required to grant an appeal or to modify a permit or determination. If you have questions about requesting a rehearing, the board rules, or hearing schedules, please email board staff at boardofappeals at sfgov.org. Now, public access and participation are of paramount importance to the board. SFGov TV is broadcasting and streaming this hearing live, and we will have the ability to receive public comment for each item on today's agenda. SFGov TV is also providing closed captioning for this meeting. To watch the hearing on TV, go to SFGov TV, cable channel 78. Please note that it will be rebroadcast on Fridays at 4 p.m. on channel 26. A link to the live stream is found on the homepage of our website at sfgov.org forward slash VOA. Now, public comment can be provided in three ways. One, in person, two, via Zoom, or three, by telephone. To attend via Zoom, go to our website, sfgov.org forward slash VOA, and under the calendar, click on today's date, and then click on the blue rectangular box that says Zoom link for hearing. If you are attending by telephone, call 1-669-900-9128 and enter webinar ID 944-7959-9215. And again, SFGov TV is broadcasting and streaming the phone number and access instructions across the bottom of the screen if you're watching the live stream or broadcast. To block your phone number when calling in, first dial star six seven, then the phone number. Listen for the public comment portion for your item to be called and dial star nine, which is the equivalent of raising your hand so that we know you want to speak. You will be brought into the hearing when it is your turn. You may have to dial star six to unmute yourself. You will have three minutes. Our legal assistant will provide you with a verbal warning 30 seconds before your time is up. Please note that there is a delay between the live proceedings and what is broadcast and live streamed on TV and the internet. Therefore, it is very important that people calling in reduce or turn off the volume on their TVs or computers. Otherwise, there is interference with the meeting. If any of the participants or attendees on Zoom need a disability accommodation or technical assistance, you can make a request in the chat function to Alec Longway, the board's legal assistant, or send an email to boardofappeals.sfgov.org. Now the chat function cannot be used to provide public comment or opinions. Please note that we will take public comment first from those members of the public who are physically present in the hearing room. Now we will swear in or affirm all those who intend to testify. Please note that any member of the public may speak without taking an oath pursuant to their rights under the Sunshine Ordinance. If you intend to testify at any of tonight's proceedings and wish to have the board give your testimony evidentiary weight, raise your right hand and say, I do, after you've been sworn in or affirmed. Do you swear or affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth? Thank you. If you are a participant and you're not speaking, please put your Zoom speaker on mute. So, commissioners, we do have one housekeeping item. The appellant for item 5, appeal number 26-026 at 1261 to 1263 3rd Avenue is not feeling well, so we need to continue this matter to August 12th. We do need a motion and a vote.

I'll move to continue the matter to August 12th.

OK, is there any public comment on this motion? I don't see any. So on the motion to continue it to August 12, Commissioner Lopez?

Aye.

Commissioner Abad? Aye. Commissioner Wong? Aye. OK, that motion carries 4 to 0. And that matter is continued to August 12. So we are now moving on to item number one, general public comment. This is an opportunity for anyone who would like to speak on a matter within the board's jurisdiction, but that is not on tonight's calendar. Is there any member of the public who wishes to speak on an item that is not on tonight's agenda? I don't see anyone. So we are going to move on to item number two, commissioner comments and questions.

Thank you, Ms. Lamar. On behalf of my colleagues at the board, I want to welcome everyone to tonight's meeting, our parties, agency representatives, and young people and members of the public. We work diligently to I can assure you that my colleagues and I have read through the materials that you have provided. We will listen to your testimony and make a decision based on the law and the facts. We look forward to hearing your presentations, and thank you for participating.

Okay. Is there any public comment on this item? Please raise your hand. I don't see any. So we're going to move on to item number three, the adoption of the minutes. Commissioners, before you for discussion on possible adoption of the minutes of the July 8, 2026 meeting.

Move to adopt the July 8, 2026 minutes.

OK. Is there any public comment on that motion? OK. On that motion, Commissioner Lopez?

Aye.

Commissioner Abad? Aye. Commissioner Wong? OKAY. THAT MOTION CARRIES FOUR TO ZERO. THE MINUTES ARE ADOPTED. WE ARE NOW MOVING ON TO ITEM NUMBER FOUR. THIS IS APPEAL NUMBER 26-027, OLIVIER ADLER VERSUS SAN FRANCISCO PUBLIC WORKS, BUREAU OF STREET USE AND MAPPING, SUBJECT PROPERTY 1627, 37th AVENUE, APPEALING THE ISSUANCE ON APRIL 23, 2026 TO NEXT EDGE NETWORKS HOLDINGS LLC OF A WIRELESS BOX PERMIT. INSTALLATION OF ITEM NUMBER a personal wireless service facility. This is permit number 25WR-00029. And as a preliminary matter, Commissioner Hwang has a disclosure.

I have two disclosures. One, that I'm disclosing for the record that I've begun service on Planning Department's Community Equity Advisory Council, which advises the planning staff on strategies to engage diverse communities. This work has not involved the appellant or the permit holder in this matter. I do not accept any honorarium nor payment for my service on the council, and I don't believe that sitting on the council will impact my ability to be fair and impartial in this matter. In addition, out of an abundance of caution, I'm disclosing that in 2024 and 2025 and before I joined the Board of Appeals, I had asked AT&T to sponsor an event held by my nonprofit employer. AT&T made a donation for the event in 2024, but has not since. AT&T also expressed having a booth at the event in 2025, but ultimately did not do so. I do not believe that this will impact my ability to be fair and impartial in this matter.

Okay, thank you. So we will now hear from the appellant. Welcome. You have seven minutes.

Thank you. Good evening, President Trevina and members of the board. I'm Steve Williams, here representing Olivier Adler, the appellant. Mr. Adler lives at 1627 37th Avenue, the site for the proposed facility, and he's here tonight with his two children. Hopefully you had time to review our brief and the response briefs and understand that this is a project that got it wrong. They got it wrong from the beginning and they just kept going no matter how much we tried to talk to the department representatives and get them to pull back and meet with the community and the neighbors and do some community outreach to explain their actions. That was all refused. The city agencies and the applicants simply ignored the code, ignored the policy process and protocols, and went forward with zero notice, zero community outreach, and without even adhering to the code-mandated process for site selection and design. On March 11th of this year, a crew showed up and installed a much taller pole at the site. DPW describes the pole replacement, and this is in their brief at the top of page four, as related to the wireless permit. That's really odd because it would be at least two and a half months later before the wireless permit would even be approved and issued. The installation of the pole was the first notice of any kind the community received that a project had been proposed for the site. This is extraordinarily disappointing because the site was first selected some eight years previously, and that's our exhibit two to the brief. The application was submitted more than a year earlier, and AT&T was working with DPW and planning for years on this project without any outreach or any even simple notice to the community. It's a travesty. The brochures and the pamphlets which I submitted with the brief from both DPW and Planning describe a collaborative, community-based process where AT&T and the departments will work with the surrounding neighbors to help select the best sites and the least intrusive designs for the type of installation that's going in. Nothing even close to that occurred. Hopefully the board noted the response from AT&T as well. At the top of their brief at page 10, AT&T addresses the concerns about notice and community outreach by saying, there's no harm because appellant is now before the Board of Appeals. Apparently, they just do not understand that the very point of community outreach and the pre-application notices are to avoid being here at the board or trips to the planning commission or trips to the board of supervisors. In addition to completely ignoring the community, the respondents also ignored the code-mandated design preference ladder for choosing the site and the design. If we take DPW at its word, and this is on page six of their brief, the last full paragraph, it was not even aware of the mandatory design preference ladder until after the appeal was filed, and I don't think they were aware until after they received our brief. Obviously they did not comply with it before the permit was approved. In its brief AT&T takes a different tactic than DPW and directly attempts to deceive the board. In response to the appeal, and this is on page 10 of the brief, AT&T claims, and I quote, AT&T did indeed analyze other potential locations and polls in selecting the least intrusive means for the proposed small cell. What AT&T fails to disclose is that it did not do any analysis at all before approving and issuing the permit. That happened afterwards. After receiving our appeal, they realized the permit had been issued in violation of the code and quickly slapped together an insufficient and undated and unexplained analysis, which we will probably see tonight, that attempts to create a preference letter and attempted to submit this to the board as exhibit B in its brief. AT&T forgot to mention to the board in its brief that it only hastily prepared that analysis in response to the appeal after our initial review. And if you look at it, hopefully we won't get into a long discussion of Exhibit B and the analysis that they were supposed to do before the permit was issued, because that's incredibly unfair. We've only had it for six days. It's incomplete. And it appears to be exactly what it is, hastily slapped together in an attempt to justify a wrong decision. There's no evidence at all before the board that the site and this design is the only feasible alternative. The analysis offers only blanket statements that this site won't work, this site won't work. There's no evidence mathematically, structurally, that no other site or design will satisfy the coverage requirements that AT&T is saying that it's trying to achieve. They don't offer any discussion at all of the preference ladder. Preference one is line rearrangement. That is where the lines can be groomed in the existing communication lines on a pole to safely clear the vertical requirements of General Order 95, which they claim is being violated by practically every alternative site. There's no discussion at all. of preference two, which are side mounted shrouds that would allow the antenna to fit within the existing communication zone underneath the power lines. They do have a number of items planned to go under the power lines, but there's no discussion in the alternatives of that at all. The taller pole replacement, which was done without notice and without analysis, probably could have been done at a much lower level. Maybe just add five feet to the pole, not 14 and a half, and you would have been within the preference ladder. There's also no discussion at all about alternative pole siting, strand mounting, which is another technique which can be used to avoid the least desirable preference, which is where they immediately ended up without any analysis at all. So I'm here to answer any questions that you have. Mr. Adler is also prepared to speak. He's not against cell phones. He enjoys his cell phone. This is not about views. This is not about electronic cell phones. At one point, he even offered to discuss with the AT&T representatives of citing it on his...

Thank you.

So it's time. Thank you. We do have a question from President Trezeguena.

Thank you, Mr. Williams. I share the concerns that have been raised about the process. I want to focus, though, on your last point about what your client wants. Does he have a proposed solution? Practically, not procedurally, but practically, other than where the poll is now.

You know, what he wanted from the very beginning was just to sit down with AT&T and discuss alternatives. And those alternatives could have included a different design on the existing pole or a nearby design. He's identified a couple nearby poles in his neighborhood that... fall at a higher preference on the preference ladder. And so his desire really was just for a discussion, believe it or not. He's not here to talk about views or electronic magnet fields. He's here just trying to get a discussion about the location and the design, which AT&T should have won it as well.

So I'll ask the city representatives as well, but do you have in mind what would have been a satisfactory community consultation process?

Yes, and I actually suggested it to DPW and to AT&T. I have three emails that I sent in March, right after we found out, asking them, meet with us.

Can you just describe for me what the process might be? I assume it's more than just talking to Mr. Adler.

No, it would have been all the neighbors. And dealing with AT&T in the past and other parts of the city, when this has come up and I've asked for a community meeting or a neighborhood sit-down, they always said yes immediately.

And this time, it was zero. If I could, Mr. Williams, is that legally required, or is that just a sense of good neighbors, good government, responsive institutions?

You know as I put in my brief all of the all of the brochures and handouts from planning and DPW described this collaborative neighborhood process and that the the providers like AT&T are going to be working very closely if you look at exhibit 3 and exhibit 4 they describe this community process where the location and the design will be discussed with the neighbors, and all this will happen before the permit is applied for. None of it happened. Zero. And when I asked the DPW representative about that, he said, oh, it's not required. It's not mandatory. I'm like, but it's in all of your brochures. You know, is it just PR fluff? I mean, that's literally what I wrote to them in my email saying, you know, I don't want to go to the Board of Appeals. You know, I don't want to go to Planning Commission to appeal this. Let's sit down and talk about it and find out what you're going to do. And I'm sure that Mr. Adler, if it's reasonable, he'll agree to it.

Thank you, Mr. Williams.

Thank you.

Okay, thank you. I don't see any further questions. So we'll now hear from NextEdge. Welcome. You have seven minutes. And we won't start the time until you get set up. Overhead, please.

Computer, please. Thank you.

Hello. I'm Rita Diamond with Next Edge Networks. I'm here with my program manager, Caroline Steig. And we are in charge of permitting for AT&T small cell sites in San Francisco. We also have David Witakowski here with Oku Solutions. He's our EME expert if there's any questions related to that. We're here to discuss our small cell at 1627 37th Avenue. Here we have a photo simulation of the site. You'll note in a few upcoming slides, there's a lot of poles in the area that have a lot of clutter on them, existing equipment. And this site was meant to be more streamlined and just less clutter in general. Here's one more elevation, two foot antennas at the very top of the pole. And then down below, we have their side mounted radios and a PG&E disconnect at the very bottom. Our design is preference 6 on the preference ladder that's given in the objective standards. Preferences 1 and 2 are not viable. In order to meet GO-95 clearance, we need to replace a pole with a taller pole. There's not enough space on a 30-foot tall pole to install the equipment and side-mounted equipment while maintaining those spaces. Preferences 3 and 4 are also not viable to meet the clearances. The lower part of the antenna bracket needs to be at least 6 feet from the power lines, and PG&E only replaces the poles in 5-foot increments. Therefore, a 50-foot pole was proposed with 8 feet buried in the ground for an above-ground height of 42 feet. With the additional height for the antenna, the total change in height is about 14 feet. And this does exceed the height change allowance in the preferences three and four. The last preference, five, is not viable. PG&E no longer allows the pull top extensions to be used with small cells. We did look at seven alternative sites. This was done while we were looking around for the current node. We put together this presentation to show you why certain poles were not viable. Alternate site one, it's no less intrusive and it's not feasible. PG&E does not allow carriers to co-locate on a wood pole with a transformer, and there is one here. Alternate site two, also not feasible and no less intrusive. If we were to install AT&T equipment, there would be no room for Geo 95 mandated climbing space. in the quadrant. Alternate site three, also not feasible and more intrusive. PG&E requires carriers to choose a pole that has four feet clearance from any equipment on the ground. So the fire hydrant and the adjacent pole would disqualify this one. Alternate Site 4, also not feasible and no less intrusive. There's emergency equipment at the very bottom. There's a red box, so they would not allow us to collocate on that pole. Site 5, also not feasible. This is a traffic signal pole, and the city does not allow carriers to install equipment on traffic signal poles. Site six, this one is feasible for PG&E, but more intrusive. It would require a taller placement pole, but it would have to be a side-mounted antenna. But this is a park-protected location, so it was not preferred. Alternate Site 7, this is no less intrusive. It's similar to the proposed pole that we have, and it would still require a taller replacement pole to maintain clearances. It is a viable PG&E location, and it would be considered a Tier B for the planning department. There were additional alternatives to the south that were not included in this analysis because it was all similar poles to what we have as a proposed node and Site 7. They would all be viable only if we replace the pole with a taller pole to incognite G95 safety clearances. In conclusion, AT&T needs to improve the services and signal quality in the area around our proposed node. And we've explored many sites in determining our proposed installation to try to develop the best design possible. And we ask that the Board of Appeals upholds our permit. Thank you.

Thank you. We have a question from President Trasvinia.

Thank you for your presentation, particularly your PowerPoint. This is the first time that I've seen a description of the various alternatives in such detail. And I think part of the concern is that It's coming now and not before. If you could go back to page 9 of your PowerPoint. Is that the map? 9. Sorry. The last sentence you're saying, you didn't look at other alternatives. Poles are adjacent to residential homes and only made viable for PG&E with taller pole replacements to accommodate G095 safety clearances. Can you tell us why the poll that was selected isn't described by that sentence? And what's the difference between that defect and the poll that was selected?

It is the same. It's no less intrusive than the node that we proposed. And the sites further down are away from the coverage area, additionally. But this would be a similar situation to the poll that we have selected. But it wasn't selected because of the coverage target.

Thank you. Commissioner Wong. Yeah, I think along the same lines, how many other alternative sites then were viewed? Because you just showed us a handful, but that last on page nine, it says that there's even more alternatives.

There are more to the south of this pole that are also no less intrusive, and they're similar to our permitted site or the current site. And then they just wouldn't work for our network coverage. But they would also just not be viable. They would be viable, but not for what AT&T is looking to have covered.

And then can you give me some context of how many other poles are that, like, 42 feet high above ground in the sunset, or like in this area of the sunset? Sorry, I don't have that information. Would it... I am also concerned about the lack of community engagement and talking to the neighbors and letting them know. To me, with the presentation that was given, there could have been other alternatives, and AT&T chose this one in particular. Do you have a specific reason why this one was a better alternative than all the other ones that had the same issue?

AT&T wanted to choose this poll just it was better for their coverage objective, and we followed the process for noticing that DPW highlights in Article 25 after our permit was reviewed.

Okay, so in line with that, when was the last time that any neighbors were given notice about this project or this plan of project?

This one, I don't have the affidavit in front of me. It might be in the materials that were submitted with DPW. With all the permitting materials, I don't have the date with me right now.

Okay. We can ask DPW, whoever's representing DPW later, just add that in for me. Thank you. Okay.

Thank you. Commissioner Bodd?

Thank you. So I'm also looking at slide nine. And do I understand correctly that you did not choose alternative site number seven over the site that was ultimately implemented because it was less optimal for coverage? Correct. Okay. So if it had been optimal for coverage, though, it would have required the same intervention, the replacement of a pole. It would have been taller.

Same scope of work as our current proposed pole. And what was the date of that installation? PG&E completed their make ready shortly before we completed our public noticing. I don't have the date for when PG&E completed their poll replacement. That was under a separate permit. We do the noticing when our permit is in the process of being approved.

So the PG&E replaced the poll before noticing for the cell site went up. Yeah, it's separate. They're separate. But the poll replacement was necessitated by the cell site implementation, and yet somehow.

PG&E accepts our application. They have their own schedule, and they're doing the permitting on their side, and I don't think they have to do permitting or noticing for their permits.

I see, OK.

But we do notice before we get our wireless permit approved, we notice.

Got it, OK. I'll reserve follow-up questions about process and dates for DPW. Thanks.

It's tricky with a PG&E separate timeline.

Totally. Thank you.

Thank you. No further questions. You can be seated. We will now hear from Public Works. Welcome you have 7 minutes.

Hi, good evening. My name is Gregory Slocum. I'm the commercial permit manager with Public Works. Thank you for having us. right into it. So the purpose of this presentation is to provide a little bit of background on the program and some context for our wireless programs, including limitations of discretion that we have. Public Works will seek to address the six allegations that were contained in the appellant brief and demonstrate there's not an adequate basis to uphold the appeal and that the non-issuance of this permit is consequential as it relates to Article 25 and federal regulations. Public Works will also seek to present an alternative to the Board of Appeals. Just for some general background, as you may or may not be aware of, there are federal regulations tied to our wireless program. And we have a very narrow shot clock for approving these at 60 days. And what that means is when an application is deemed complete, meaning every element that we've asked for is submitted, we will then begin our process. So the shot clock doesn't begin on an incomplete application would be one way of looking at that. And then additionally, the objective standards that were referenced were adopted through a multi-agency process and integrated into Article 25 of the Public Works Code regarding personal wireless facility. Typically, when we receive these applications, it's a multi-agency review because DPH will view it for radiation or health emission standards, and planning will look at the general plan and view sheds. There are favored and disfavored designs. Planning evaluates proposals and can determine acceptability related to designs. All right, just some specific background. So in September 2025, Public Works received an application for the wireless facility. It had a letter authorizing the pull use from PG&E that was old. I think it was like seven years old. So we conveyed the need to the applicant to provide us with some updated coordinating documentation that this was an allowable use and that it was current. The application was routed. They submitted that additional correspondence to us after we asked, and then the application was routed to the planning department in December for final determination on design and location. And then in February, it was indicated that this was admissible and a final determination was issued, at which point we can begin our process for approving the wireless site. And I'll provide some timelines as I'm going through that will speak to some of the questions that were raised and may illuminate more clearly. One thing I put out there is that we have our pole replacement, and that's one permit. Not all pole replacements will include wireless facilities, so we don't process them in tandem necessarily. As the permit holder alluded to, PG&E has their own schedule for this replacement, which would also explain if you were like, why did you receive notice in eight years this might be replaced, and then you had to require an updated letter, essentially because they did not meet their poll replacement within that schedule. I can't speak to that schedule. We're not responsible for it. That would be PG&E. But it's worth noting for some additional context. The appellant brief we received had six points of contention predominantly, and the planning department's also present if you have some questions. Permit holders present, they spoke. Allegation one was that this should be a tier site and that Any determination therein as a result would be incorrect. And they reference 201.970 and 206.502. And these are ministerial documents for Public Works. They are not mutually exclusive. 206.502 is our updated objective standards, and that's responsive to new technologies. New wireless technologies emerge, and we have to develop design standards to accommodate them. ALLEGATION TWO, THE SITE IS ADJACENT TO A PARK-PROTECTED LOCATION AND IS THEREFORE INADMISSIBLE. ADJACENT IS CLEARLY DEFINED IN THE DEFINITIONS OF ARTICLE 25 AND IT MEANS IN FRONT OF AND ON THE SAME SIDE OF THE STREET, NOT ACROSS THE STREET. It says that very explicitly and clearly within Article 25. And then furthermore, this definition is not limited to wireless facilities. Our team also does banner permits, which you may be aware of, that hang on utility poles. And they're allowable on the opposite side of a park, but not on the side of the street immediately in front of it. So that would be another practical example as to how we deploy this working definition of adjacent. Three, disfavored design was approved absent of feasibility. So the applicant asserted in their submittal to us that this was the only admissible location. One thing I'd point out, the order, when it references a letter in the rungs of the ladder, it doesn't reference what was presented tonight, meaning an exhaustive demonstration. It just has to say this is why. They don't have to provide sites necessarily. They don't have to provide math that articulates feasibility. They merely have to assert these were not feasible, this one is. They came in and asserted that this site was the feasible site for them. Again, the preference ladder is contained within the director's order and not the code. Director's order are ministerial documents that allow for some discretion, whereas the code is the letter of the law and we are to follow it. And additionally, Public Works relies on planning determinations and reviews. They reviewed this and indicated that nothing was awry and that this was an average application. There was nothing out of the ordinary as it related to the request for disfavored design use. Planning supplied a final determination and accepted the disfavored design, which prompted an approval of the permit via Public Works. And then another thing that I reiteratively put, the Public Work Orders references a letter of assertion, not a feasibility study. The Planning Department approved feasibility of a disfavored site, and then additionally, after the fact, and tonight, we've been presented with some additional information regarding feasibility. Allegation 5, construction began on a taller pole before meaningful public outreach occurred. This is not required. As I mentioned, the replacement pole permits are issued separately from wireless. They require no outreach whatsoever, and they may have nothing to do with a wireless installation. In this instance, they did, in fact. Allegation six was that these errors were material and warrant vacation or additional review. We would dispute those assertions outright. That's time.

Thank you.

All right. Thank you.

Okay. Thank you. We have a question from President Sosvenya, then Commissioner Abad.

Thank you for your presentation. I wanted to go back to the point about feasibility. And does that come under the objective standards, use of design preference?

I'm not sure I'm quite understanding exactly what you're asking.

What I want to ask about is the design preference ladder.

The design preference ladder articulates standards, but it doesn't compel anyone to follow them. It articulates what they would be.

In this instance, they... You have standards that don't need to be followed? I'm sorry? Are you saying we have standards, but we don't ask anybody to follow them?

No, that's not what I'm saying. I may be misunderstanding your question.

Well, my initial question was the use of design preferences. And you stated that the applicant has to assert feasibility, correct?

They submitted a letter to us and asserted that this was the only feasible site.

Right. And what requirement were they trying to fulfill by the assertion?

Ah. I can't speak to their motivation because I wasn't with them when they wrote it, but I would assume that when we talk about exhausting the latter, they were showing the equal sign without the math and that they were saying essentially this is a conclusion that we've arrived to that there's a lack of feasibility. They were asked to demonstrate. There was no demonstration, and they provided us with enough math to demonstrate beyond the minimal requirement, which they asserted they had met when they submitted it.

I'm sorry, they provided enough what? Did he say math?

So yes, let me follow along. The letter that we talked about with design standards doesn't require all of the photos and all of the exhaustion that they demonstrated. They asserted a conclusion. They were questioned about their conclusion and upon questioning provided us with documentation that surpassed anything we would have requested from them or anything we're allowed to request from them is what I'm asserting.

And did that come prior to the approval?

The assertion that it was feasible came first. The documentation that you saw did not come until the appeal was filed.

OK, great. So what I'm reading is use of design preferences. And it states, approval will not be granted unless the applicant shows this design is the only feasible one. And my question is how that squares up with your assertion that all they have to do is assert it rather than demonstrate it, prove it, show it.

They asserted this was the only feasible site. So for some sense of context, we don't have electrical engineers on our staff. We don't have them on a consultant basis. So we don't have the expertise to necessarily address that had they presented it. We asked them to assert the feasibility. We asked about a letter of exhaustion. They asserted the feasibility absent of a letter of exhaustion. We believe that while this was an oversight, ultimately it should not materially impact the outcome because they've demonstrated. We've spoken to planning about feasibility and about view sheds and is there a better site for this. There have been no alternatives that we've been able to pursue. And alternately, as I referenced before, we have a 60-day shot clock to review and approve these. So the amount of scrutiny that we have the luxury of placing on certain elements We're hamstrung by time, and there's not anything that we would be able to do about it.

Well, the reality is you have a 60-day shot clock to review and either approve or disapprove. It's not a requirement to approve it. Correct.

And we initially disproved it so much as that we requested some updated documentation.

Right. My last question, my colleagues Commissioner Abbott and Commissioner Lopez have questions. My last question is what public engagement is there typically on this kind of a site request?

Thank you. So for pole replacement, the pole is going up. We notice there's a crew out there. The pole is going up. There's no notice required whatsoever. For wireless, we require noticing once the final determination. We receive a final determination from planning, essentially affirming the viability of the site. We do public noticing. Mailing affidavit was received looks like min May. I mean part of me mid mid-april and then they posted at the site as well and then another thing that I'd like the the Commissioner the board to be aware of we post these public notices or we would do a mailing that the applicant would do a mailing and and We may receive feedback from the public or comments from the public or opposition from the public. None of the feedback that we would receive would be integrated into subsequent steps, meaning we could receive letters of objection and it wouldn't trigger a public hearing or it wouldn't trigger any type of formal additional consideration. They would just demonstrate that they did the noticing and then could continue to install.

Thank you. Commissioner Abad. Thank you. Hi, Mr. Slocum. I'm just trying to sort out a little bit of the chronology, so I was hoping you could help me with that. I did note that there was a public posting that went out on April 22nd. It sounds like 2026. The dates that I am trying to get to confirm are the date that the PG&E poll was or rather the poll was replaced by PG&E with a taller one. And I think the date of permit issuance was in February. There was a planning department determination on the 5th of February. And then the third question mark is, when the cell facility itself was implemented. I understand there's the pole, and then there's all of the hardware that goes on the pole. And those two things have separate noticing requirements and essentially public engagement requirements, if I understand correctly.

Yes. May I have permission to sidebar with staff a moment to ask a clarifying question on date? Sure. Thank you.

Or have them come up. She can come up.

PGE, TOC, THAT'S WHEN WE TOLD THEM THEY HAVE TO SUBMIT THE NEW DOCUMENTATION. THEN I SEE A TOC IN JANUARY, AND I SEE IN MARCH. BASED ON THE COMPLAINT, I BELIEVE THE INSTALLMENT ACTUALLY OCCURRED IN MARCH, AND THAT THEY WERE RENEWING THESE BECAUSE THEY'RE ONLY VALID FOR TWO WEEKS AND THEY COULDN'T GET AN APPROPRIATE SCHEDULE. SO BASED ON THIS, WHAT I'M SEEING IS THAT WE INSTALLED THE POLL IN MARCH. And then the wireless facility, to respond to Mr. Budd's comment, has not been solved.

And this is from PG&E.

Thank you. That's very helpful. Thank you. The PG&E installed the poll in March. And when you install, they did this under a temporary occupancy permit, which is a kitchen sink permit we issue at Public Works, a no parking sign. That would go up three days ahead of any use of that permit to ensure tow rights are applicable. So three days before the poll was installed, a TOC would have been posted. They supplied us with photographic evidence of that posting. I'm not asserting that that posting constitutes public notification, but I'm sharing for posterity. The wireless installation has not yet occurred because of the appeal. So the poll is up. There's no noticing requirement for polls at all whatsoever under any circumstance to that effect. the noticing occurred for the wireless. It makes sense. A big poll goes up. What's going on? What's being placed upon it? And the ensuing conversation that occurred. But chronologically, they could have installed the poll, not put any wireless on it at all, not had an intent or any arrangement to do that. Or alternately, they could have installed the poll, and we could receive an application at a much later date.

I see. So that explains why a notice for the wireless facility was noticed by the neighbors, as in it was seen after the pole replacement took place. Yes. OK. And the date of permit issuance by the Public Works was, I presume, after the planning department's determination dated February 5? Oh, yeah.

For the wireless, it wasn't issued until, late April because we have to wait for that affidavit and for that noticing to circulate. Even though it doesn't trigger additional community input or public hearings, we still wait for the duration of that to lapse.

Great. So the public posting that went up on April 22nd was for the wireless facility, and that needs some interval, 10 days or something, before the department can then... Yes, and additionally, it looks like one was mailed prior to that. And there was one that was mailed. So what was the formal date of issuance for Public Works' ultimate? That was late April?

One moment.

We have April 23rd on the permit. April 23rd.

Thank you for clarifying. That would make sense if we received an appeal on the 26th and the posting period ended on the 21st.

Okay. Okay, that helps me understand that there's sort of two components. One requires noticing, the other doesn't. Why it can seem like for a neighbor, they're getting a notice about something post facto and helps me understand the alarm. Totally. That's all. Thank you.

Thank you. Commissioner Lopez.

Thank you. I believe that towards the beginning of your presentation, you had referenced some ideas or suggestions for actions that the board may take. And I just wanted to see if you could speak to those briefly.

I believe, give me one moment here. Bear with me, this isn't a recommendation that I've made before. What we're encouraging the board to do is to modify the permit to reflect the additional materials that were presented before you tonight. These materials represent a standard that goes above and beyond the minimum. But we also acknowledge that they should have been submitted prior to us being here tonight and prior to the permit being issued. The requirement existing within the director's order provides more discretion than it would if it were in the code explicitly. We believe that if you were to uphold the appeal of the 60-day shot clock, first of all, there's nothing materially or objectively awry as it relates to our review standards. We acknowledge the need for procedure and due process, and that's why I'm here talking to you. But alternately, in the course of reviewing this, there's nothing materially that would Provide as a basis to withhold the permit and still comply with the FCC standard so we're encouraging the permit to be modified to assert that the Feasible this was the only feasible design on the basis of submission by the applicant and affirmation by our department as well Thank you Thank You Commissioner Wong

Just a couple of questions. So I know that you had mentioned that there's no necessity to give notice for replacing a pole. This was a replacement and adding height. So that also doesn't seem to matter.

Do you have noticing for poles?

Because basically, I can see it if you're just replacing the thing. It's old. It's going to fall apart. It's wooden. You need to replace it. But this isn't just a replacement. It's a replacement and at height.

Yes, I understand. It did not necessitate additional noticing.

Is that normal?

I don't know. If I had known in advance that I would be asked about pole heights and replacement, we could look into it. Sometimes when we receive these applications, meaning the temporary occupancy or an excavation from PG&E, it just says pole replacement. It may say in-kind when we're doing in-kind. And this one had some specificity because there was coordination for a specific purpose.

I mean, I also ask because this is the sunset. I'm very familiar with the sunset. Yes. This pole is 40-something feet high, which is about four stories. The houses there are only two stories high. Yes. So it does suddenly look pretty big.

Yeah. The public works does not... do view sheds and we don't. That's part of planning's review for standards.

And then just clarifying something that you were talking about earlier about when there's a notice that goes out. I thought I heard, and correct me if I'm wrong, that you can receive feedback, but there's no need to actually incorporate that in the final thing? Correct. OK. So even if all the neighbors were like, no, I hate this, you can just say that it can still move ahead because it's feasible?

If it meets the objective standard, I have no basis to do anything other than approve it within 60 days if a complete application is before me. So to those 100 neighbors, I would acknowledge them and say thank you for your feedback so that they knew someone received it. I would thank them for their interest in our program. And if they asked for updates or something, if that could be of service to them through other means, meaning provide them with that update, I would. But it would not impact the proposition materially.

OK. Thank you.

I know that's not good to hear, but that's how the law is written, and we follow that. OK. Thank you.

OK. Thank you. No further questions. You can be seated. We will now hear from the planning department. Welcome. You have seven minutes.

Thank you. Good evening, President Ciosfinia, fellow commissioners, Dakota Speicher with the Planning Department. It's nice to meet you. So the permit before you proposes replacing the existing approximately 30-foot-tall wood utility pole in the public right-of-way with a new wood pole approximately 42 feet tall plus roughly 2-foot-tall pole extension for a total height of about 44 feet. The proposal also includes side mounted antennas on the lower portion of the pole, and it would be installed in the exact location as the existing pole. So under Section 1509 of the Public Works Code and Public Works Order Number 206502, the Planning Department receives referrals for Tier B personal wireless service facilities located in the public right-of-way when a proposed facility does not meet the Tier B compatibility standard based on the Department of Public Works application of the objective standards or when it is considered a disfavored design. So as DPW had mentioned in their brief and their presentation, This proposal is for a new Tier B facility that is a disfavored design. For that reason, the permit was appropriately referred to the planning department for determination on whether the facility meets the applicable Tier B compatibility standards. So Section 1502 of the Public Works Code states that when a facility is proposed in either a planning protected location or zoning protected location, the department shall review. So in this case, the facility is located within both. Therefore, the planning department reviewed the proposed application based on the following compatibility standards. So first, planning protected location. So 37th Street between Moraga and Kirkham is identified in the general plan as having good street views. While the increased pole height would be visible, planning finds that it would not significantly impair views of the Sunset Parkway or adjacent open spaces, except from viewpoints immediately next to the pole, conditions that already exist today. The taller pole would not obstruct or substantially alter important public views because the facility is designed to be minimally streamlined, color matched, and free of excessive cabling or bulky attachments. For this reason, the department believes the facility complies with the planning protected location compatibility standard. And second is zoning protected location. So the poll is situated in the RH1 zoning district. Section 209.1 of the planning code describes the RH1 district as defined by single family homes, consistent scale, typically not exceeding 35 feet in height, with uniform setbacks and ample open space. While the proposed pole would be approximately 44 feet tall, this height alone would not detract from the defining residential character of the district. This facility also remains within 10 feet above the prescribed 40 foot height and bulk district. For the same design reasons previously mentioned, the department also believes the facility complies with the zoning protected location compatibility standards. Planning determines that the proposed facility is designed in a streamlined and minimally intrusive manner. Cables will be concealed with conduit painted to match the pole. Equipment boxes and antennas will use non-glossy finishes. And offsets from the pole are modest. So these design choices reduce visual prominence and support compatibility with nearby residential frontages, the sunset, parkway, and open spaces. Public Works Order 206502 requires applicants proposing disfavored designs to explain why higher tier design preferences are not feasible. Planning does not review this rationale, but rather request applicants to use higher tier designs. However, the applicant, as mentioned by DPW, provided this rationale as part of their DPW application. And therefore, planning did not request additional application from the applicant. Regarding public notice, I know that's been a topic for today. So Planning Code Section 311 governs public notification on private property. It does not apply to the public right-of-way. So that's just something to keep in mind. And subsequently, in the appellant's brief, they also had mentioned the pre-application process. That is also not required for facilities in the right-of-way under the Planning Code. So in summary, while taller than the existing pole, the replacement pole and associated equipment are deliberately designed to be visually streamlined, color matched, and free of excessive cabling or bulky attachments. Based on these findings, the department concludes that the permit was issued in accordance with Article 25 of the Public Works Code and meets both the planning and zoning location compatibility standards. This concludes my presentation, and I'm happy to answer any questions.

Thank you. We have a question from President Szczeskynia, then Commissioner Budd.

Thank you for your presentation, and welcome to the board. I'll try not to duplicate the questions I already provided to DPW. But you mentioned the disfavored design process and preference six. As I read the design process, is applications using preference six, disfavored design, must be approved by the planning department. That's your Bailey-Wick. Correct. As opposed to Mr. Slocum's. The next sentence is approval will not be granted unless the applicant shows this design is the only feasible one. When did the applicant do that?

So the applicant had provided a written letter stating why the, or I think more appropriately, requesting and giving rationale to why the taller pole was required. But planning does not review feasibility studies for these types of facilities.

But doesn't the standard limit the approval upon the applicant showing the design is the only feasible one? I know you're telling me that planning doesn't look at it. Isn't planning supposed to look at it?

Not that I'm aware of. So I think the one thing I didn't print out today was the public works order. So I believe the public works order says that it needs to be submitted and demonstrated to DPW, but planning does not review a feasibility study.

Thank you. Commissioner Abad. Thank you.

Good evening. I appreciate the outline of the kind of urban design and urban landscape considerations, the portion of review that planning is attentive to. The permit holder showed a number of different sites, alternative sites and a map. I'm wondering why, could you remind us why what they've shown as site number six, which is almost directly across the street and is on the verge of the Sunset Boulevard Parkway, would not be a feasible location in terms of what our city regulations and guidelines are for placement of these facilities?

Yeah, I mean, I think that ultimately would be best answered by the project sponsor in terms of why it's not feasible. So really what the planning department is looking for is impacts to the zoning district that it's in and impacts to, in this case, the street that has a good street view. So that is really the only things that the planning department reviews in terms of these types of applications.

I seem to recall an adjacency to open space being a consideration. But I'm looking at the image provided by, I think this is actually in the appellant's brief, of sites. Actually, no. This is from the permit holder of Site 6, which is a pole amongst a very tall grove of trees. And I have to wonder why. that wasn't more seriously considered and maybe in rebuttal i can address this question to the permit applicants or the permit holders it seems like a taller pole amongst a bunch of tall trees off of the sidewalk where residents you know there's a piece of infrastructure that is hardly human scale so but it might understand that from a planning department perspective and kind of what you're reviewing for urban design and visual impact, compatibility with urban form and the general environment. There's nothing here for, there's no analysis or assessment of those two sites compared to one another.

Not from the planning department. So for example, if somebody had submitted a wireless application on private property, we do have requirements for that alternative site analysis. But in the public right of way, we don't review those analyses. OK.

Thanks for clarifying that. I might be missing something, but in which case, maybe in rebuttal, either the department or the applicant can address that question about alternative site number six.

OK. Thank you. No further questions. You can be seated. We are now moving on to public comment. Is there anyone who would like to provide public comment on this item? I don't see anyone. So we're going to move on to rebuttal. We will hear from the appellants. Mr. Williams, you have three minutes.

Thank you. Steve Williams again. Please be clear. no preference at all, no feasibility at all was presented to anyone until six days ago. You asked when, the president asked when, and you didn't get an answer, but that's when it came. And this is really fundamentally unfair to now show up at the hearing and we're discussing the various alternatives. This should have been the subject of the appeal because they should have done correctly the design preference ladder and the alternatives that we could have found in their files. DPW is up here talking about letters and disapprovals. I haven't seen any of that. It's not in front of you. There's no letters at all that they presented. Planning does not mention at all objective standards, even though they're tasked with approving it. So just be really clear on that. The discussion and the presentation just made before the board should have been made to the neighbors. And page six of the DPW brief clearly says no feasibility at all was shown to us until after the appeal. And most likely six days ago when we received for the very first time exhibit B, which was the analysis. And the analysis is completely inadequate. There's no mathematical calculations to prove any of the claims about network coverage. They should be showing us why one site is preferable over another to gain the net worth coverage that they need. It's a mathematical calculation. General Order 95 doesn't say what the applicant is saying it says. I have copies of it if you want to see it. It doesn't work in the way that they say it does. Not relative height to trees and houses. It talks only about clearance. Here it is right here. It's a one-pager. But the... There's no evidence at all that this project meets the objective standards. And the evidence has just not been put in front of you. Not only is it a mathematical calculation for the network coverage, there's a mathematical calculation for the structural outbuilds of the poles. Each pole that is turned down as they go down the preference ladder should explain why we can't build a vertical outcropping on this pole, and it can't hold the equipment that it needs to hold at a reasonable height. And so that's the kind of evidence that they are compelled to present in order to win here. They didn't do anything right. They didn't comply with any portion of the code. I mean, that's the disturbing part. And to hear them say, we don't have to talk to the public, we don't have to tell the public anything, essentially.

That's time. Thank you.

Is what you're hearing.

Thank you. I don't see any questions. So you can be seated. We will now hear from the permit holders.

Alec, can you give that general order? Let me submit that.

Would you accept the submission, President Transvenio?

Is he simply giving us what...

He's trying to submit an evidence that I believe you have to accept or not.

What is it?

It's just General Order 95, which has been continuously referenced, but it's not in front of the board.

If my colleagues would like it during our deliberations, we'll pick it up from the table. Thank you.

Thank you.

Good evening. Caroline Stice. I am with Next Edge on behalf of AT&T. First, I'd like to discuss the design preference ladder and the assertion that AT&T did not do an analysis of alternative locations. As part of AT&T's site selection process, extensive time reviewing alternative locations in the coverage objective area. It is a huge part of our process because, one, we have to comply with City of San Francisco objective standards, of course. We also have to comply with PG&E standards that are outlined in their green book, and we have to comply with Public Utilities Commission G095 standards. as the appellant just referenced. Those dictate what utility poles in the public right-of-way are viable for small cell installation. So that analysis is done as part of the site selection process. But no, DPW does not require it as part of the application process. As part of the application process, we did provide a height justification letter, which has not been referenced, but that provides additional detail to DPW as to why the pole was replaced with additional height. that that information was provided to DPW. We provided the alternative site analysis, yes, in response to the appeal, but that document itself is not required as part of the application. So we did provide the full alternative site analysis. It was redacted from the brief. That's why you only see the photos. But if during your deliberation you so choose, I do have that additional information here. Rita spoke to most of it during her presentation, but this provides a little bit more context. I'd also like to speak on and reiterate the fact that the pole replacement is under a different permit, and it is done by PG&E and as stated by DTLB in planning, that does not require notification. AT&T has not put any wireless equipment on the pole. It is obviously our permit has been suspended and cannot do so until obviously a decision is made here. You mentioned alternative six. There's additional information in here about that. That is the pole across on the streets, the park side of the street. That pole was not selected because it is feasible from a PG&E perspective. It can be made feasible with a taller replacement pole. But its adjacency to the park makes it a less preferred location. And to speak to the trees, trees hinder cell service. So that is often why we avoid trees and we put antennas above rooftop lines so that the service extends further and is not inhibited by adjacent trees, structures, things like that.

That's it?

Thank you. Thank you. I don't see any questions.

Am I filling out one of those cards? I have her name.

You're Carolyn, right? Yes, Carolyn. Okay. Thank you. I have your name. Thank you. You can be seated. We'll now hear from Public Works. Anything further? You have three minutes for rebuttal if you would like to address the board.

No additional comment, but I'm happy if you have questions to respond to.

I don't see any questions. So planning department, anything further? No? OK. Commissioners, this matter is submitted.

Thank you all for your presentations and the written materials. I applaud AT&T for its century of communication, but we're suffering from a lack of communication in this proceeding. A lot apparently was either provided or maybe disregarded. The last speaker said that the feasibility study was provided. I think it's inherently, it's extraordinarily unfair to the appellant to have to address these matters as noted six days prior to this hearing. The deliberation should have occurred much, much earlier. I am hearing that the city If there's a notice requirement and the city invites notice, invites public comment, doesn't have an obligation to consider it. I find that very disturbing. Here, what drives my view is both page 9 of the requester's presentation, which I asked about earlier, which talks about alternatives. Also, in the written materials and in the presentations tonight, alternatives 6 and 7 were talked about Not because they weren't feasible, because the street light can be made viable, but is the less preferred. Alternative 6 and Alternative 7 is described as no less intrusive as a preference and a Tier B location. So it appears from the presentations that there are many, at least a limited number of options that were available. And the requirement As I read in the DPW order is that for the applicants must use preference one whenever feasible. If infeasible, applicant must explain to Public Works the reasons for needing to move down each rung of the design preference ladder. Applications using preference six, the disfavored design, must be approved by the planning department. Approval will not be granted unless applicant shows this design is the only feasible one. We've heard that it is not the only feasible one. Now, and what we are asked to do is acknowledgement from I think all three of the groups that spoke tonight that this is something that the board could do. We're not equipped to do that. We're not equipped to analyze studies that we do not have in front of us. We are not equipped to evaluate. That's something that the order anticipates being done. The applicant must show the design is the only feasible one. Tonight, we hear that the department doesn't require that. And for that reason, I find the appeal should be upheld. Colleagues?

Commissioner Abad. It does seem that there are other viable locations that meet, at least one other viable location that meets the coverage standard, is within the network area, I think is the network geography. and would require sort of a self-saving replacement by PG&E for a taller pole certainly seems like maybe less visually intrusive, directly adjacent to, you know, houses that are 20, 25 feet in height. So my sense is that the site that was ultimately chosen isn't the only feasible site. And the applicants have helped us understand that indeed there's at least one other feasible location that meet the technical criteria that they would need to provide adequate service.

Commissioner Wong. I agree with what you guys are all saying. I think what's sticking to me is the process for community feedback also feels like it's performative, right? And I know the sunset. I love the sunset. Human beings out there are very rational. If this was presented to the neighbors in advance, having a conversation with them I don't think that we would be here tonight. And that's what I would hope actually would have happened, mostly because, I mean, the neighbors care, right? Like, it's the sunset. It's been in the news more times than not in the last couple of years. I think you can see that neighbors have opinions out there. It's just kind of nice to engage with them before a final decision is made.

Thank you. Thank you. Would you care to make a motion?

I can suggest some language.

Is that how we?

You would be granting the appeal and overturning the permit on the basis that it was not correctly issued under the provisions of Article 25 of the Public Works Code?

Okay. I'm not going to repeat that, but yes. Okay. That is my motion.

Okay. So on that motion, Commissioner Lopez?

Wait. Before voting, can I ask a question of my commissioners, my fellow commissioners? Do we... Do we have a sense of which aspects of Article 25 specifically this was issued in violation of?

Commissioner Bhat, do you want to take the first crack at an answer?

Well, I think approaching that, the analysis wasn't exposed to the parties in question and those concerned until very recently and as a consequence of the appeal. So strict letter of Article 25's, I guess, process provisions, was that followed? Sure. some critical information just wasn't available. It appears it wasn't available to the departments. It's not something that they considered. I don't think it was the, you know, what the applicant is required to do is to, well, they attested to this being the only feasible location. Now we're learning it's not the only feasible location. So I am... have questions about that attestation, which is all apparently that DPW requires, is for them to say, this is the spot. We've done all the analysis. It's not included in our application. But this tall pole right outside of this little house is the only place we can put it.

And if I could add, the record shows that the department did not follow the process for the design preference ladder.

You could also say the applicant, OK, so the department didn't follow the process for approval.

Consideration of the design preference.

Application. Because the applicant to not show that the design is the only feasible one? Yes. OK. OK. So we'll incorporate that into the motion. On that motion, do you want me to read it again? Is that it?

No. Nothing further from me. I think I'm ready to vote now.

Yeah. So on that motion, just confirming Commissioner Lopez, your vote would be? Aye. OK. And President Trasvina?

Aye.

COMMISSIONER ABBOTT? AYE. THAT MOTION CARRIES 4-0 AND THE APPEAL IS GRANTED. THANK YOU. WE ARE NOW MOVING ON TO ITEM NUMBER 6. THIS IS APPEAL NUMBER 26-029, MICHAEL TURON VERSUS THE ZONING ADMINISTRATOR, SUBJECT PROPERTY 2722-2724, FOLSOM STREET. appealing the issuance on May 28, 2026 to Michael Turon of a letter of determination. The zoning administrator determined that one, the city may lawfully include a state law ADU required by government code section 66310 to 66342 to be processed ministerially inside a discretionary conditional use authorization. And two, the city may condition issuance of any ADU permit on recording a notice of special restriction, NSR, that the ADU is subject to rent increase caps and rent ordinance section 37.3. Regarding the applicant's question about whether canceled building permit number 2025-0106-7778 must be reinstated to inter alia document the approved removal by merger, The zoning administrator stated that the question was better directed to DBI. However, the zoning administrator noted that section 4.4 of the settlement between the applicant and the city required the applicant to revise building permit number 2018-0706-3908 to document removal of the UDU. REGARDING THE APPLICANT'S REQUEST TO MODIFY CONDITIONS ON THE NSR, THE ZONING ADMINISTRATOR STATED THAT THE PLANNING CODE DOES NOT AUTHORIZE THE ZONING ADMINISTRATOR TO ALTER THE LANGUAGE OF THE CONDITIONS TO BE INCLUDED IN THE NSR REQUIRED BY PLANNING COMMISSION MOTION NUMBER 21747. AND THIS IS RECORD NUMBER 2025006337. AND AS A PRELIMINARY MATTER, WE HAVE A DISCLOSURE FROM COMMISSIONER WONG.

Sorry, same disclosure. I'm disclosing for the record that I have begun service on the Planning Department's Community Equity Advisory Council, which advises the department staff on strategies to engage diverse communities. That work has not involved the appellant or the permit holder in this matter. I do not accept any honorarium or payment for my service on the council, and I don't believe that sitting on the council will impact my ability to be fair and impartial in this matter.

OK, thank you. So we will hear from the appellants first. And they are joining us via Zoom. Welcome. You have seven minutes.

Thank you. My name is Samuel Ray. I represent appellate Michael Turan. Michael Turan is present. I trust this board has read the briefs. I'd like to focus on two primary issues. First, the letter of determination improperly classifies ministerial state ADUs as subject to discretionary review, which is explicitly prohibited by Planning Code Section 207.2 . Likewise, the letter of determination also takes the position that the Planning Commission is empowered to impose The rent increased limitations of the rent ordinance on State ADUs despite the prohibition in Planning Code Section 207.2 . These are both legal errors for which this Board is entitled to overrule pursuant to Charter 4.106. Notably, to address something in the City's brief in their reply, this is not an appeal of the underlying Planning Commission motion 21747. Instead, it's strictly an appeal of the zoning administrator's interpretations as stated in the letter of determination, which are appealable. And I would like to note that the letter of determination has impact well beyond Mr. Tarrant's property. It is citywide implications and specifically planning code section 307A, which provides the zoning administrator authority to issue letters of determination, states that such interpretations will be of general application in future cases and shall be made part of permanent public records of the planning department. Initially, to the first point, a state ADU cannot go through discretionary hearings or discretionary review under Planning Code Section 207.2 . The question that was addressed in the letter of determination was essentially whether a state ADU can be subject to discretionary hearing. The zoning administrator reached the determination that they could, resting on general charter authority, but they ignored Section 207.2, which is the permanent planning code section pertaining to state ADUs, and notably prohibits such a hearing. As noted in the letter of determination, the zoning administrator's power to interpret is limited to the planning code, and that's stated in the second to last paragraph of the letter of determination. Additionally, while we were obtaining this letter of determination, the zoning administrator stated in an email, which is attached as Exhibit J to the appellant's exhibits, that he's only empowered to provide determinations under the planning code. And this was included because the zoning administrator included this as justification for ignoring the California government code, which is direct standpoint and essentially states that state views cannot be subject to discretionary hearings and need to proceed ministerially. However, the California government code does say that, but there's also a planning code section that's directly on point that essentially says the same thing. Notably, section 207.2, which is the local implementation of the state ADU law. And in subsection E, it states that no requests for discretionary review shall be accepted by the planning department for an ADU meeting the requirements of this section. The letter of determination in question one ignores this and cites instead to the charter and Planning Code Section 303, which provides generally authority to hear discretionary review and conditional use applications in general. But of course, the Planning Commission doesn't have authority to hear discretionary review over any project, and there are limitations, and conveniently, zoning administrator ignored the limitation in 207.2 . If the zoning administrator's interpretation of the planning code in this regard were allowed to stand, it would effectively render 207.2 irrelevant. It's effectively an end around stating that regardless of the restriction in that subsection, the Planning Department and Planning Commission have brought authority to hear conditional use applications or anything that they choose to hear conditional use applications on. Likewise, the zoning administrator also rests authority on the settlement agreement. There's a federal settlement agreement that pertains directly to the property at issue. It's attached as Exhibit A. Again, this is beyond the zoning administrator's interpretation powers, and even if it were to be considered, it does not state what the zoning administrator says it states. In fact, it states that the required conditional use authorization pertains solely to the a dwelling unit removal by merger, and that's in subsection 5.1 and 3.43 of Exhibit A. To that same point, it begs the question of how Mr. Turan's state ADU got before the Planning Commission. For the record, Mr. Turan applied for a conditional use authorization for a dwelling unit removal by merger. By the time that Mr. Turan's application reached the Planning Commission, the city had altered it to add the state ADU. Mr. Turin obtained records from the planning department indicating that staff from the planning department had changed the scope of his application, and that's Exhibit I, which would be page 68 of our exhibits. In the related federal case, planning staff submitted a declaration saying they did not alter his application, and this raises an interesting question as to which one is correct, the computer records or the declaration that was submitted in court. Likewise, moving on to the second issue I'd like to address is the imposition of rent control and specifically the rent increase limitations of the rent ordinance on state ADUs. And the question that was addressed was, does the Commission have authority to apply the rent increase limitations on state ADUs regardless of the limitations of the rent ordinance to apply the rent increase limitations. As a threshold issue, the Planning Commission isn't entitled to impose any restrictions on a state ADU under 207.2 . And notwithstanding that issue, There are restrictions elsewhere in 207.2 which limit the ability to apply the rent increase limitations of the rent ordinance on state ADUs. In the letter of determination, again, the zoning administrator arrested his authority on the settlement agreement. Again, that's beyond the purview. And I would direct the board's attention to 207.2 and 207.2 , which state that only applicable provisions of the rent ordinance. In other words, the rent ordinance in general would apply, but the rent increase limitations would be subject to the general restrictions of the ability to apply rent control effectively on state ADUs. And likewise, the- Thank you. That's time. Thank you.

OK. Thank you. We do have a question from President Tresevina.

Thank you, Mr. Ray. My first question is what limitations does the letter of determination put on your client with regard to rent increases that the settlement before the Board of Supervisors agreed to by your client and the city attorney provide?

Well, most notably, it requires a notice of special restrictions to be recorded, which is not allowed under 2 Assemblyman 2H of the planning code. Likewise, it blanket applies, and if the letter of determination has impact beyond my client's property, and it would blanket apply to any state ADU, and there's a difference between the rent ordinance applying and the rent increase limitations applying.

Okay. And are there other – what other implications are there for your client? I'm not speaking about anybody else, but for your client, that the letter of determination imposes that's not otherwise imposed?

In regards to the rent increase, the rent limitations, or in general?

In general. Okay.

Well, again, most notably, the notice of special restrictions is not required by the settlement agreement or the ordinance, but it is required by the resulting Planning Commission motion, which would kind of impose conditions on the State ADU not contemplated by the settlement agreement.

Well, that's the Planning Commission motion. What does the letter of determination impose?

Well, the letter of determination is just the zoning administrator's interpretation of the planning code, and it would apply generally to all properties, particularly to my client. It has the effect of ratifying the commission's actions but applying them broadly across all properties.

Well, ratifying an action... ratify something that already exists, what's the difference between the Planning Commission's motion and the letter of determination?

I guess I'm getting hung up on the fact that, I mean, letters of determination don't necessarily, they don't apply to particular properties. They're an interpretation of the code. You know, I don't think that's something that you could take to you You would still have assuming this happened before he would still need to go before the Planning Commission I'm sorry.

Can you can you either speak more slowly or? Speak up as it's it's a very it's it doesn't help to have you on zoom. It would be great if you were here So I'd like for you to just restate your last answer Sure

My point was that letters of determination are just that. They're interpretations of the planning code. They're not a permit or anything like that. So they effectively affect everyone's property the same across the city.

And perhaps my question wasn't clear because the audio works both ways. My question was, what does the letter of determination impose upon your client that the planning commission motion doesn't?

I understand now. Nothing. It agrees with the finding of the Planning Commission, essentially. I guess that question, whether or not it was properly before the Planning Commission was never considered by the Planning Commission. So I guess that would be the impact.

So whether we uphold the letter of determination or whether we don't uphold it, at least as to this issue, the Planning Commission motion impact is the same Correct.

It does not unwind the Planning Commission motion, correct.

Thank you.

Okay, thank you. I don't see any further questions, so we will now hear from the Planning Department.

Hey, good evening, President Trasvina, commissioners, Cory Teague, zoning administrator for the planning department. So this is an appeal of a letter of determination that I issued for the property at 2722 Folsom Street. It was requested by the property owner. That request had three primary questions plus some kind of miscellaneous requests that were all addressed in the letter. Just for background, the subject property contains two buildings, a front primary building that has two legal dwelling units and one unauthorized dwelling unit on the ground floor, and then a rear accessory detached structure. That's the existing state. There has been history on this property in the process of addressing the UDU. Ultimately, there was a... court action taken by the property owner that was settled. That settlement was adopted by the judge in December of 2024 and also adopted by ordinance by the Board of Supervisors in that same month. And that settlement has very specific obligations for each party, the city and the property owner. The primary obligation of the city was to recommend approval of a conditional use authorization to remove the UDU. And if that was approved, then as that moved forward to unsuspend permits, close enforcement cases, et cetera, the primary obligation on the property owner's side was to submit a permit building permit application for a state ADU that would be subject to rent control. And that's the primary trade-off. Obviously, the settlement agreement goes into somewhat more detail. Pursuant to that settlement agreement, the property owner filed a conditional use authorization. And the conditional use authorization was required to remove the unauthorized dwelling unit. So part of the application of the property owner was to include, to remove the UDU and add the ADU as was contemplated in the settlement agreement. Also as contemplated, the Planning Commission included a condition of approval that specifically referenced the settlement agreement and the requirement that the ADU be subject to rent control. To be clear, the settlement did not obligate the Planning Commission to take any particular action to grant the approval of the CEU or to deny it. They were not a party to the settlement agreement. But that is the action they took. And I think the questions by President Trasvinia gets to one of the main positions that we have, which is, as the zoning administrator and the duties and responsibilities under Planning Code Section 307, I'm looking primarily at the Planning Code and the The zoning administrator and this LOD did not impose those conditions of approval. That action was taken by the planning commission through a conditional use authorization that has an appeal path. My understanding is that the property owner attempted to achieve an appeal application to that, but that was not successful. And then absent that, they have an option to take that issue to court, especially if their concerns are that this is not an appropriate action by the Planning Commission based on state law. So that's an important distinction because effectively what they're asking you to do is overturn my determination, which as we heard reaffirmed the Planning Commission's action, to basically negate the Planning Commission's actions through a zoning administrator determination. And the zoning administrator simply does not have the authority to do that under the planning code. The other thing that's important here to understand is that their assertion that under state law you cannot apply conditions essentially like this to a state law ADU is correct. If someone comes in with an application that's purely to do a new state law ADU, such a condition is not permitted under state law. But this is not what the application is. The application is to remove a UDU, which requires a conditional use authorization, and the Planning Commission clearly has authority to adopt conditions of approval for that UDU. What that means is that if the goal of the property owner is to have a state ADU in that rear accessory building that is not subject to rent control, they have the option to to legalize the unauthorized dwelling unit and negate the need for the conditional use authorization, which is the source of the condition of approval. So they have an option to achieve that. That is not the project that was before the department or before the Planning Commission as part of the overall conditional use authorization. So they do still have that option. I don't have a lot more to add than that. I trust that you had an opportunity to read the letter of determination in detail and the responses there. I don't know if you had the ability to read all the supporting documentation, because there's a lot there in terms of the settlement agreement, the conditional use authorization, et cetera. But in summary, overall, the request by the appellant appears to be essentially A REQUEST TO TAKE ACTION THAT WOULD CHANGE OR NEGATE THE ACTION OF THE PLANNING COMMISSION, WHICH IS A SEPARATE APPEAL PROCESS THAN AN LOD AND APPEAL OF THE LOD. AND ASIDE FROM THE FACT THAT THE GROUNDS THAT THEY ARGUE ON ARE THE GROUNDS THAT WERE INCLUDED IN THE SETTLEMENT AGREEMENT. BUT FOR ALL THOSE REASONS, It's my position that the letter of determination was accurate and correct and that the zoning administrator did not err or abuse their discretion when issuing that determination. But I'm available for any questions you may have.

Okay. Thank you. I don't see any questions at this time. So, Commissioners, DBI Senior Inspector Richard Sernson is available if you have any DBI questions. If not, He does not have a presentation, but he just made himself available. So are there any questions? No? OK, thank you. So we are going to move on to public comment. Is there any public comment on this item? Anyone on Zoom? I don't see any public comment, so we're going to move on to rebuttal. Mr. Ray, you have three minutes.

Thank you. And we agree with the zoning administrator to the effect that this board is not empowered to overturn the Planning Commission motion, nor are we asking them to. Simply, as any member of the public is entitled to, this is a letter of determination resting on interpretation of the Planning Code. And regardless of what happened at the planning commission hearing, the zoning administrator is obligated to issue a correct determination, and this board is empowered to overturn the determination if it's not correct. There's planning commission, sorry, planning code sections that are clearly on point that would that are effectively an opposite to the findings of the zoning administrator. And you know, I think it's important to point out here, because I heard the zoning administrator refer to the UDU removal as an alleged UDU. There was a prior settlement in state court in this case where the city issued a certificate of occupancy, which removed the UDU back in 2019, and that's recorded against the property as an NSR. But beyond that, you know, I'm hearing a lot from the zoning administrator about the impact on the planning commission motion, and I would just direct the board to the letter of the law and match that up with the letter of determination, and they don't match. And beyond that, I have nothing more to add unless the board members have any questions.

Thank you. I don't see any questions at this time. So anything further from the planning department?

Thank you again, President Trasvini and commissioners. Just to reiterate, My letter of determination reaffirms what factually occurred, both in the settlement agreement and the conditional use authorization. The zoning administrator is obligated to provide determinations when requested. That was done. The zoning administrator is not There's been no reference to any authorization under the Planning Code where the zoning administrator would effectively be able to modify or remove conditions of approval that were adopted by the Planning Commission. But I'm available for any other questions you may have.

Thank you. I don't see any questions. So Commissioner, is this matter submitted?

Thank you Appreciate the voluminous materials that have been provided and the the oral presentations today I see Commissioner Lopez seeks recognition.

I'll start with him Not not a comment on my part, but I was just wanted to turn to Mr. Minardi to remind us of the standard of review for this action

Thank You commissioner to Grant that the appeal or modify the letter you would have to find the board would have to find an error Or abuse of discretion by the zoning administrator Which is different than a de novo review?

I will start just on that last point. I don't find error or an abuse of discretion on the part of the zoning administrator. I asked the attorney whether the planning commission's motion would survive, action would survive, irrespective of our action on the letter of determination. And he said, I understand it. He said it would. Therefore, I reasonably conclude that the letter is consistent with the Planning Commission's action. And as the zoning administrator pointed out, Planning Commission action could have been appealed to the Board of Supervisors or to the courts. And the only other area which I explored with Mr. Tron's attorney related to the letter of determinations application to others. I asked about the application to Mr. Turan, his client, and his answer was, well, it's a letter of determination. It affects everybody. Well, it seems to me if the requester was concerned about a general application of the motion from the planning department that affected only his client, the letter of determination was ill-advised. It seems almost a regret and hopefully a request to withdraw the request for a letter of determination. I believe that the zoning administrator properly interpreted the code and properly provided the letter. I don't see an abuse of discretion and I would deny the appeal. Colleagues?

No comment other than that I concur with you, President Transvino. I'd be happy to entertain a motion. I move to deny the appeal.

Based upon the zoning administrator not erring.

On the basis that there was no abuse by the zoning administrator of their remit.

The zoning administrator did not err or abuse his discretion?

Yes. Thank you.

Okay. On that motion, Commissioner Lopez? Aye. President Trezvinia?

Aye.

Commissioner Wong? Aye. That motion carries 4-0 and the appeal is denied.

There being no further business or people before us, the meeting is adjourned at 6.48.