PC Reso 6951RESOLUTION NO 6951
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
APPROVING A CONDITIONAL USE PERMIT (U‐2022‐001) TO ALLOW
THE RENEWAL OF AN EXISTING MONO‐EUCALYPTUS WIRELESS
COMMUNICATIONS FACILITY (U‐2011‐10)
LOCATED AT 23600 VIA ESPLENDOR
SECTION I: PROJECT DESCRIPTION
Application No.: U‐2022‐001
Applicant: Kathryn Leal (Epic Wireless Group LLC)
Location: 23600 Via Esplendor (APN: 342‐54‐016)
SECTION II: FINDINGS FOR A USE PERMIT:
WHEREAS, the Planning Commission of the City of Cupertino received an application
for a Conditional Use Permit (U‐2022‐001) to consider renewal of an existing mono‐
eucalyptus wireless communications facility;
WHEREAS, the necessary public notices have been given as required by the Procedural
Ordinance of the City of Cupertino, and the Planning Commission has held at least one
public hearing in regard to the application; and
WHEREAS, pursuant to the provisions of the California Environmental Quality Act of
1970 (Public Resources Code section 21000 et seq.) (“CEQA”), together with the State
CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.)
(hereinafter, ʺCEQA Guidelinesʺ), the City staff has independently studied the proposed
Project and has determined that the Project is exempt from environmental review
pursuant to the categorical exemption in CEQA Guidelines section 15301 for the reasons
set forth in the staff report dated June 14, 2022 and incorporated herein; and
WHEREAS, the applicant has met the burden of proof required to support said
application; and
WHEREAS, the Planning Commission finds that:
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U-2022-001 June 14, 2022
1. The proposed development qualifies as an eligible facilities request pursuant to 47
CFR 1.6100(b)(4).
2. The proposed development to does not substantially change the dimensions of an
existing support structure at the project location, as defined in 47 CFR 1.6100.
WHEREAS, the Planning Commission is the approval authority for this project and is
granted the authority by the Municipal Code to exercise its independent judgment, based
on the record before it, for purposes of the California Environmental Quality Act; and
NOW, THEREFORE, BE IT RESOLVED that the Planning Commission takes the
following actions:
1. Exercises its independent judgment and determines that the Project is exempt
from CEQA pursuant to CEQA Guidelines section 15301. The Class 1 exemption
applies to existing facilities that involve negligible or no expansion of existing or
former use. The proposed project does not include alterations of modifications to
the existing wireless communication facility or associated equipment. Therefore,
the proposed project would not involve the expansion of the former use (Section
15301, Class 1), will not significantly expand the use beyond the current use that
already exists or previously existed, and will not have a significant effect on the
environment.
2. Approves the application for a Conditional Use Permit, Application no. U‐2022‐
001 subject to conditions which are enumerated in this Resolution beginning on
PAGE 3 thereof. The conclusions and sub conclusions upon which the findings
and conditions specified in this resolution are based, including those contained in
the Public Hearing record concerning Application no. U‐2022‐001 as set forth in
the Minutes of Planning Commission Meeting of June 14, 2022, are hereby
incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPARTMENT
1. APPROVED EXHIBITS
Approval is based on the plan set and documentation entitled “Site Number:
CCL4019/CNU4019” prepared by AT&T and NUWAVE Communications,
consisting of 14 sheets showing the existing site plan and elevations and “Radio
Frequency Emissions Compliance Report for AT&T Mobility” prepared by
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U-2022-001 June 14, 2022
Waterford, consisting of 5 sheets, except as may be amended by conditions in this
resolution.
2. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on
the first page of the building plans.
3. ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations, building setbacks,
property size, building square footage, any relevant easements and/or
construction records. Any misrepresentation of any property data may invalidate
this approval and may require additional review.
4. PREVIOUS CONDITIONS OF APPROVAL
All previous conditions of approval, in accordance with U‐2011‐10 shall remain in
effect except as may be amended by conditions contained in this resolution.
5. EXPIRATION DATE
This use permit shall expire ten (10) years after the effective date of the permit.
The applicant may apply for a renewal of the use permit at which time the
Planning Commission may review the state of wireless communication
technologies, camouflage techniques and maintenance to determine if the visual
impact of the aerial facility can be reduced.
6. TREE POLE APPEARANCE AND MAINTENANCE
The applicant shall use a sufficient number of artificial branches to obscure the
appearance of the panel antennas and any associated mounting framework. Panel
antennas mounted away from the mast shall be covered with leaf socks to blend
with the mottled foliage of the artificial branches. Any antenna mounted close to
the mast shall be painted to mimic the tree trunk. The foliage shall have a mottled
green/brown coloration.
The building permit shall be reviewed and approved to the satisfaction of the
Community Development Director to ensure the above condition is met. The
applicant shall perform regular maintenance of the tree pole to maintain its
appearance and obscure the panel antennas from public view.
7. NOISE CONTROL
Base equipment stations are subject the Community Noise Control Ordinance,
Chapter 10.48. Noise levels shall not exceed those as listed in the Community
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Nosie Control Ordinance, Cupertino Municipal Code Chapter 10.48. If there are
documented violations of the Community Noise Control Ordinance, the Director
of Community Development has the discretion to require noise attenuation
measures to comply with the ordinance.
8. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies
with regard to the proposed project for additional conditions and requirements.
Any misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
9. INDEMNIFICATION AND LIMITATION OF LIABILITY
As part of the application, to the fullest extent permitted by law, the applicant shall
agree to indemnify, defend with the attorneys of the City’s choice, and hold
harmless the City, its City Council, and its officers, employees, and agents
(collectively, the “indemnified parties”) from and against any liability, claim,
action, cause of action, suit, damages, judgment, lien, levy, or proceeding
(collectively referred to as “proceeding”) brought by a third party against one or
more of the indemnified parties or one or more of the indemnified parties and the
applicant related to any Ordinance, Resolution, or action approving the project,
the related entitlements, environmental review documents, finding or
determinations, or any other permit or approval authorized for the project. The
indemnification shall include but not be limited to damages, fees, and costs
awarded against the City, if any, and cost of suit, attorneys’ fees, and other costs,
liabilities, and expenses incurred in connection with such proceeding whether
incurred by the Applicant, the City, or the parties initiating or bringing such
proceeding.
The applicant shall agree to (without limitation) reimburse the City its actual
attorneys’ fees and costs incurred in defense of the litigation. Such attorneys’ fees
and costs shall include amounts paid to the City’s outside counsel and shall
include City Attorney time and overhead costs and other City staff overhead costs
and any costs directly related to the litigation reasonably incurred by City. The
applicant shall likewise agree to indemnify, defend, and hold harmless the
indemnified parties from and against any damages, attorneys’ fees, or costs
awards, including attorneys’ fees awarded under Code of Civil Procedure section
1021.5, assessed or awarded against the indemnified parties. The Applicant shall
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cooperate with the City to enter a Reimbursement Agreement to govern any such
reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment) if made necessary
by proceedings challenging the project approvals and related environmental
review, if the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
10. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions.
PASSED AND ADOPTED this 14th day of June, 2022 at a noticed Public Hearing of the
Planning Commission of the City of Cupertino, State of California, held by the Director
of Community Development, or his or her designee, pursuant to Cupertino Municipal
Code Section 19.12.120.
AYES: COMMISSIONERS: Scharf, Madhdhipatla, Kapil, Saxena
NOES: COMMISSIONERS: None
ABSTAIN: COMMISSIONERS: None
ABSENT: COMISSIONERS: Wang
ATTEST: APPROVED:
Piu Ghosh Steven Scharf
Planning Manager Chair, Planning Commission