DIR-2024-007 - Action LetterCITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014 (408) 777-3308
To: Mayor and City Council Members
Chairperson and Planning Commissioners
From: Luke Connolly, Assistant Director of Community Development
Prepared by: Gian Paolo Martire, Senior Planner
Date: June 25, 2024
Subject: Director’s Minor Modification, DIR-2024-007, to allow the placement of 12 antenna onto the roof of the Main Street Parking Garage in compliance with Section 6409 located at
19500 Vallco Parkway, APN 316 20 999.
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, Matthew Moore, of Complete Wireless Consulting, representing AT&T, proposes to collocate twelve antennae on the roof deck of the Main Street parking garage, located at
19500 Vallco Parkway (Figure 1). In addition, the applicant proposes to add associated wireless communication equipment within an expanded enclosure area.
DISCUSSION
The proposed AT&T antennae will be collocated on a 77-foot-tall stair penthouse tower on the northwest corner of the Main Street parking garage. The antennae equipment will be enclosed
by 10-foot-tall screen walls, increasing the height of the penthouse tower to approximately 87-feet. The screen walls will match the color and texture of the penthouse tower, as well
as the rest of the parking garage. The applicant has provided a Plan Set (Attachment A) and Photo simulations (Attachment C) showing the location and appearance of the proposed antennae
and equipment on the parking structure’s roof.
In 2016, DIR-2016-21 approved Verizon Wireless request to allow the addition of fifteen (15) panel antennas and associated equipment on the Main Street parking garage elevator tower,
therefore making the entire garage an eligible facility in accordance with Federal law regulating telecommunications facilities, discussed in greater detail, below.
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, 47 USC 1455(a)(1), 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.”. 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 an eligible facilities request after it has been 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 60-day “shot clock” is tolled by a local government’s timely
request for additional information to complete an application, the application can be “deemed granted”per 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, such as the subject proposal, and qualify as an “eligible facilities request” and 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 provides the criteria details and comparison
with the current application from Dish Wireless. The Section 6409 Checklist also demonstrates the eligibility of the project as a streamlined facility.
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 of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever
is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater. Changes in height should be
measured from the original 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.
The antennae will be on top of the existing parking garage tower, enclosed within 10-foot screen walls.
For towers, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure
at the level of the appurtenance, whichever is greater. For other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from
the edge of the structure by more than six feet.
None of the added antenna would protrude further than what was part of the original approval. Thus, no protrusion of the structure is proposed that would exceed the allowances listed.
For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets;
or for base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves
installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure.
Two new cabinets, with smaller supporting equipment will be added and completely enclosed within a new enclosure adjacent to the parking garage tower on the roof deck.
It entails any excavation or deployment outside the current site.
None proposed as no groundwork will be done offsite.
It would defeat the concealment elements of the eligible support structure.
The proposed work will have no effect on the existing concealment.
It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, provided however
that this limitation does not apply to any modification that is non-compliant with the siting approval only in a manner that would not exceed the thresholds identified in (1) through
(4) above. 47 CFR 1.6100(b)(7)(i)-(vi)
None of the proposed changes exceed the thresholds identified in 1-4 listed above.
Radio Frequency
A joint radio frequency (RF) energy emissions exposure report was prepared by Site Safe to analyze the cumulative RF energy exposure of the antennae (Attachment B). 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 ground/street level.
1.94%
While the consultant’s report did not not identify any RF exposure risk to the public, the consultant notes that RF exposure could be significant on the parking structure rooftop in
the vicinity of the antennas. The tower and base station are inaccessible to the public, but the consultant recommends mitigations to prevent occupational exposures above Federal standards
for wireless carrier technicians and maintenance staff who will service the equipment post-installation. Specifically, the consultant recommends explanatory signage located at the base
of the tower.
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 rather than proposing such facilities on new, free-standing structures that are out of character with the community’s appearance and contribute
to visual blight .
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:
APPROVED EXHIBITS
Approval is based on exhibits titled “CCL05795 Main Street Cupertino” prepared by Streamline Engineering, consisting of 15 sheets labeled T-1.1, C-1, C-2, A-1.1 through A-4.2, and E-1.1
dated on 2/16/24, except as may be amended by the conditions contained in this resolution.
ACCURACY OF THE 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.
BUILDING PERMIT REQUIRED
This approval does not constitute building permit approval; a separate building permit is required.
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 March 15, 2022.
EXTERIOR MATERIAL
The final color and material shall closely resemble the details shown on the approved plans and shall be reviewed and approved by the Director of Community Development prior to issuance
of building permits.
SCREENING
All mechanical and other equipment on the building or on the site shall be screened so they are not visible from public street areas or adjoining developments. Screening materials/colors
shall match building features and materials. The height of the screening shall be taller than the height of the mechanical equipment that it is designed to screen. The location of equipment
and necessary screening shall be reviewed and approved by the Director of Community Development prior to issuance of building permits.
REVIEW OF LIGHTING
Prior to final occupancy, planning staff will review the proposed lighting to confirm that the lights installed are in conformance with the proposed lighting in the approved
plans and the lighting standards as defined in Municipal Code Chapters 19.102 and 19.124.
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.
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 “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.
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.
This Director’s approval is effective June 25, 2024. The fourteen-calendar-day appeal period will expire on July 9, 2024.
Enclosures:
Attachment A: Plan Set
Attachment B: RF Study completed by EBI Consulting and titled “Radio Frequency Electromagnetic Energy (RF-EME) Compliance Report” dated April 6, 2022.
Attachment C: Photo Simulations