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DIR-2022-024 - Approval Letter CITY OF CUPERTINO 10300 Torre Avenue, Cupertino, California 95014 (408) 777-3308 To: Mayor and City Council Members Chairperson and Planning Commissioners From: Luke Connolly, Interim Assistant Director of Community Development Prepared by: Emi Sugiyama, Associate Planner Date: March 28, 2023 Subject: Director's Minor Modification, DIR-2022-024, to allow the collocation of three new antennae and associated equipment to an existing facility located at 12 Results Way, APN 357-20-046. Chapter 19.164 of the Cupertino Municipal Code allows for administrative approval of minor changes in a project. The Director reports his decision to the City Council and Planning Commission in time to allow an appeal of the decision within 14 calendar days. BACKGROUND The applicant, Derek Turner, of Qualtek Wireless, representing Dish Wireless, is proposing to collocate three antennae on a personal wireless facility located on an existing monopine (U-2010-03) in the parking lot of the Apple's Results Way Campus office buildings located at 12 Results Way (Figure 1). In addition, the applicant `�"�' is proposing adding associated equipment within an expanded enclosure area. The approved total number of antennae on the facility would increase to fifteen. The existing monopine was ,, originally approved under Use k Permit U-2010-03 which is currently being renewed under Use Permit U- i 2022-007. The project has been , McClellan Road conditioned to ensure that colocation i 11 'fir °�' LAM Figure 1 Site map 1 will not occur on the monopine until such time that the renewal permit is approved and to ensure consistency with the conditions of approval of U-2022-007 at that time. DISCUSSION The proposed Dish Wireless antennae will be collocated on a 75'-10" tall monopine with twelve other existing antennae from other cell service providers. The equipment will be screened through use of monopine branches and antenna socks to match the existing canopy and the overall height of the equipment is proposed to be 42'-0" measured from equipment centerline.The other existing antennae are between approximately 55'-6" and 68' on the monopine. Adjacent residential properties are located approximately 250 feet away from the existing pole. Requirements and Criteria for a "Section 6409" Wireless Facilities Request The applicant has submitted the application subject to Section 6409 of the Spectrum Act of 2012. Federal law specifies that a "local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station." 47 USC 1455(a)(1). This provision appears in Section 6409 of the Spectrum Act of 2012, which was then codified in the federal government's code. "[T]he term 'eligible facilities request'means any request for modification of an existing wireless tower or base station that involves (A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment." 47 USC 1455(a)(2). A local government has 60 days to grant or deny eligible facilities request after it is submitted.If the local government does not approve or deny the request within those 60 days, unless a tolling agreement is entered into or the shot clock is tolled by a local government's timely request for additional information to complete an application, the application can be "deemed granted." 47 CFR 1.6100(c)(4). The deemed grant becomes effective once the applicant gives the local government written notice that it considers the application to have been deemed granted. For carriers seeking to modify an existing wireless tower or base station, to qualify as an "eligible facilities request" and therefore take advantage of the short shot clock and streamlined approvals, it needs to establish that the modification doesn't meet any of the six criteria per Section 6409. Table 1 on the next page provides the criteria details and comparison with the current application from Dish Wireless. The 6409 Checklist also demonstrates the eligibility of the project as a streamlined facility. 2 Table 1:Project conformance with Section 6409 6409 Checklist Criteria Application It increases the height of the tower by more than 10% or by the height The existing monopine of one additional antenna array with separation from the nearest structure height will not be existing antenna not to exceed twenty feet, whichever is greater;for increased and proposed antenna other eligible support structures, it increases the height of the will be added below existing structure by more than 10% or more than ten feet, whichever is antenna in the existing mock greater. Changes in height should be measured from the original foliage. support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to February 22,2012. For towers, it involves adding an appurtenance to the body of the None of the added antenna tower that would protrude from the edge of the tower more than would protrude further than twenty feet, or more than the width of the tower structure at the level what was part of the original of the appurtenance, whichever is greater. For other eligible support approval. Thus,no protrusion of structures, it involves adding an appurtenance to the body of the the structure is proposed that structure that would protrude from the edge of the structure by more would exceed the allowances than six feet. listed. For any eligible support structure, it involves installation of more One new cabinet, with smaller than the standard number of new equipment cabinets for the supporting equipment will be technology involved, but not to exceed four cabinets; or for base added and completely screened stations,it involves installation of any new equipment cabinets on the from public views and views ground if there are no pre-existing ground cabinets associated with from the adjacent parking lot. the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other round cabinets associated with the structure. It entails any excavation or deployment outside the current site. None proposed as no roundwork will be done offsite. It would defeat the concealment elements of the eligible support The proposed work will have structure. limited to no effect on the existing concealment. Should additional concealment be required, the project has been conditioned to provide additional screening. It does not comply with conditions associated with the siting approval None of the proposed changes of the construction or modification of the eligible support structure or exceed the thresholds identified base station equipment, provided however that this limitation does in 1-4 listed above. not apply to any modification that is non-compliant with the shin 3 approval only in a manner that would not exceed the thresholds identified in (1) through (4)above. 47 CFR 1.6100(b)(7)(04vi) Radio Frequency A joint radio frequency (RF) energy emissions exposure report dated December 16, 2021 was prepared by EBI Consulting to analyze the cumulative RF energy exposure of the antennae (Attachment A). The calculated RF exposures at the exposure points of concern are as follows: Cumulative Maximum RF Energy Exposures RF Exposure Location % of Cumulative Public Maximum Permissible Exposure (MPE) Limit Nearest walking/working surface 14.97% to each antenna. The RF consultant notes that RF exposure can be significant around the antennas. While the tower is inaccessible to the public,the consultant recommends mitigation for wireless carrier technicians and maintenance staff who service the equipment in order to prevent occupational exposures above Federal standards. The consultant also recommends explanatory signage be placed at the base of the tower. Both of these consultant recommendations are included as conditions of project approval. The proposed wireless facility complies with the City's Wireless Communications Facilities Ordinance (CMC 19.136) and conforms with the City's Wireless Facilities Master Plan by locating wireless facilities on existing structures. ACTION The Director of Community Development deems the project categorically exempt from environmental review under CEQA Guidelines, Article 19, Section 15301: Existing Facilities and further deems the modification minor and approves the project with the following conditions of approval: 1. APPROVED EXHIBITS Approval is based on exhibits titled "SFSFO01053A 12 Results Way, Cupertino, CA 95014" prepared by QualTek Wireless, consisting of 28 sheets labeled T-1, C-1 and C- 2, A-1 through A-4, D-1 through D-4, E-1 through E-3, G-1 through G-3, RF-1, RF-2, 4 GN-1 through GN-4, and SA-1 through SA-5 dated on 11/23/2021, except as may be amended by the conditions contained in this resolution. 2. ACCURACY OF THE PROTECT 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. 3. BUILDING PERMIT REQUIRED This approval does not constitute building permit approval; a separate building permit is required. 4. RF SAFETY MITIGATIONS RF Safety measures are required to protect the health of workers and contractors authorize to work on equipment located on the tower. Mitigation measures are detailed in the completed report by EBI Consulting titled: "Radio Frequency Electromagnetic Energy (RF-EME) Jurisdictional Report" dated December 16, 2021. 5. CONSULTATION WITH OTHER DEPARTMENTS The applicant is responsible for consulting 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. 6. EQUIPMENT SCREENING Equipment shall be screened in a manner consistent with the conditions of approval of U-2010-03 and any new applicable conditions of U-2022-007. 7. CONDITIONAL USE PERMIT RENEWAL Approval of U-2022-007 shall be obtained prior to the issuance of Building Permits associated with this project scope. 8. INDEMNIFICATION 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 5 "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 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. 9. 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. Pursuant to Government Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying with all of the requirements of Section 66020, you will be legally barred from later challenging such exactions. 6 This Director's approval is effective March 28, 2023. The fourteen-calendar-day appeal period will expire on April 11, 2023. Enclosures: Attachment A: RF Study completed by EBI Consulting and titled "Radio Frequency Electromagnetic Energy (RF-EME) Jurisdictional Report" dated December 16, 2021. 7