TR-2010-31b _ _ __
OFFICE OF THE CITY CLERK
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
C U P E RT I N O TELEPHONE: (408) 777-3223 • FAX: (408) 777-3366
Febi-uaiy 18, 2011
Re: Petition for reconsideration of the City Council's January 4, 2011 decision to deny an appeal
of a personal wireless service facility at the Results Way Office Park
At its February 15, 2011 meeting, the Cupertino City Council adopted Resolution No. 11-022
denying the Petition for Reconsideration upholding Council's original decision.
Please call the Cominunity Development Department at 777-3308 if you have any questions.
Tlze decision by the City Council above described is fina[ effective February 1 S, 2011. The time
witliin wlzicli judicial review must be souglzt is governed by �1096.6 of tlie California Code of
Civil Procedure wliiclz is 90 dctys following tlze above effective date.
Sincerely,
�`�
Grace Schmidt
Deputy City Clerk
encl: Resolution No. 11-022
cc: Trillium Telecom
Attn. Dave Yocke
7901 Stone'ridge Dr. Ste. 503 `�
Pleasanton, CA 94588
Grace Chen
10192 Imperial Ave.
Cupertino, CA 95014
City Attorney
Community Development
RESOLUTION NO. 11-022
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
DENYlNG THE PETITION OF GRACE CHEN & GUO JIN SEEKING COUNCIL
RECONSIDERATION OF ITS DECISION TO DENY AN APPEAL OF U-2010-03, EXC-
2010-04 & TR-2010-31, A USE PERMIT, HEIGHT EXCEPTION & TREE REMOVAL TO
FACILITATE THE DEVELOPMENT OF A PERSONAL WIRELESS SERVICE FACILITY
AT THE RESULTS WAY OFFICE PARK
WHEREAS, on January 4, 2011, the Cupertino City Council received a staffreport and
recommendation to deny an appeal of a Use Permit, Height Exception and Tree Removal
approvals to facilitate the development of a personal wireless service facility at the Results Way
Office Park.
WHEREAS, the Cupertino City Council held a public hearing and at the conclusion of the
hearing denied the appeal filed by Allen Wang, Grace Chen and Guo Jin on a 4-1 vote at its
meeting of January 4, 2011
WHEREAS, the Cupertino City Council's decision was within its discretion and made at
a properly noticed public meeting.
WHEREAS Grace Chen and Guo Jin requested that the City Council reconsider its
decision under the provisions of Section 2.08.096 of the City's municipal code; and
WHEREAS, the City Council has considered all relevant evidence presented by the
parties at all hearings, including evidence presented at the February 15, 2011 reconsideration
hearing.
NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:
1. The petitioners' Reconsideration Petition is defective on its face in that it does not offer
proof of facts as required by Municipal Code Section 2.08.096.
2. The petitioners have failed to offer any new evidence that there are any feasible
alternative sites to the project that are less intrusive. (See Municipal Code §
2.08.096(B)(1).) Specifically, the City Council detennines that:
.�
a. The City Council's decision is supported by findings of fact attached as Exhibit 1.
b. The fuldings of fact related to the City Council's decision were supported by
substantial evidence in the record of proceedings.
3. The petitioners' Petition for Reconsideration of the City Council's decision of January 4,
2011 on itein 9 is DENIED, thereby affirming the original decision.
PASSED AND ADOPTED at a regular ineeting of the City Council of the City of
Cupertino this 15 day of February, 2011, by the following vote:
Vote Members of the City Council
AYES: Wong, Santoro, Chang, Mahoney, Wang
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
� /s/ Kimberly Smith /s/ Gilbert Wong
City Clerk Mayor, City of Cupertino
THIS iS �0 CEAT{FY THAT'�HE V�►�'Hll�
� OF ORIGINAL QiN FlL� �iv TFiRS 6t`FI�E
ATTEST - . � 3L---� 2(�-�L
CIT1' CLERK OF Tt�� GI CUPER !NO
' f ,.
BY
ClTY CLERK
EXHIBIT 1 .
CITY COUNCIL FINDINGS IN RESPONSE TO PETITION FOR RECONSIDERATION
Cupertino Municipal Code section 2.08.096 states:
"A petition for reconsideration shall specify in detail each and every ground for reconsideration.
Failure of a petition to specify any particular ground or grounds for reconsideration precludes
that pai omitted ground or grounds from being raised or litigated in a subsequent judicial
proceeding.
The grounds for reconsideration are limited to the following:
1) An offer of new relevant evidence which, in the exercise of reasonable diligence, could
not have been produced at any earlier city hearing.
2) An offer of relevant evidence which was improperly excluded at any prior city hearing.
3) Proof of facts which demonstrate that the City Council proceeded without, or in excess of
its jurisdiction.
4) Proof of facts which demonstrate that the City Council failed to provide a fair hearing.
5) Proof of facts which demonstrate that the City Council abused its discretion by:
a) Not proceeding in a manner required by law; andlor
b) Rendering a decision which was not supported by findings of fact; and/or
c) Rendering a decision in which the findings of fact were not supported by the
evidence."
Original Petition
The petition for reconsideration consists of three pages. Reconsideration of this item
constitutes the fourth full hearing of this matter conducted by the City. The grounds for the
reconsideration are siulunarized below. It should be noted that three out of the four claims
do not Uear any relationship to the criteria referenced above. The City's findings of fact on
each of claims a.nd the criterion are delineated below.
Findin�: There are three claims that do not bear any relationship to the Reconsideration
criteria found in municipal code section 2.08.096(B).
Petition Response
Screeni�g landscaping for the monopine Petitioners seek to add and refine
needs to follow strict a�sthetic guidelines. development conditions that have already
We request the addition of a condition to been adopted by the City Council
the approval that the "additional screening (Attachment K) which does not relate to
trees at the northern propei line" will the reconsideration criteria. Petitioners'
conform to that of the approved interests are already addressed by
redevelopment plans of the Results Way Council's added condition #6: "require that
office parlc and any revisions or tree planting conform with the approved
modifications of those plans. Landscape development plans of the results way office
screening plans are unclear and should be park." In addition to #6, City Council .
open for public view. added six more conditions pertaining to
. landscaping.
Staff has already agreed to allow Astoria
Townhome owners to informally review
the landscape plans when they are
submitted.
Request to add a new condition to the Petitioners seek to add new development
approval requiring applicant to pay condition to City Council approval, which
$30,000 to the Astoria Homeowners does not relate to the reconsideration
Association for additional irrigation, trees, criteria. There are no legal grounds to add
fencing and related matters connected to this condition.
the visual screening of the wireless facility.
We are talking to the property owners of There is no evidence or facts that relate to
10340 & 10420 Bubb Road to explore a the reconsideration criteria. The request
lease for a cell site. This alternative site for continuance should be denied. The
should have similar criteria as compared to applicant already evaluated 10420 Bubb
the approval with less impact to residents. Road in its alternative site analysis (PC
We request additional time allowance staff report). Applicant cited a lack of
room and proximity to the freeway where
AT&T already has coverage.
Findin�: The petitioners have not offered any new evidence to demonstrate that Monta Vista
High School has become a viable alternative site for wireless facilities - Cupertino Municipal
Code, section 2.08.096(1).
Petition Response
The Fremont Union High School District The petitioners have not presented any
has recently entered into leases for cell evidence that FUHSD would be willing to
sites at several other high schools in the consider Monta Vista H.S. for cell sites
District. More than 5 years have passed again. The 2005 City approval of a
since AT&T approached FUHSD about wireless facility at Monta Vista H.S.
Monta Vista High School (H.S.). Given expired in 2007, so the applicant would
what has happened at other area high need to go through another public
schools, AT&T should go back and check entitlement process again. A request to
about antenna opportunities at Monta Vista place a wireless facility at a school site is
since District criteria may have evolved. not before the Council.
OFFICE OF THE CITY CLERK
CITY HALL
- 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
C U P E RT 1 N O TELEPHONE: (408) 777-3223 • FAX: (408) 777-3366
Januaiy 6, 2011
Re: Appeal of an approval of a wireless service facility on Results Way
At its January 4 meeting, the Cupertino City made the following action:
Denied the appeal, required the conditions as recommended by the Plaiuung Comnussion, and
added the following conditions to the Planning Commission resolution: (1) plant additional
screening trees at the northern property line to screen the treepole from the astoria townhome
development; (2) require berming and plant at least two 36" box, coastal redwoods blue aptos
variety on the berm on either side of the monopole to screen it; (3) improve irrigation around the
trees to ensure proper growth; (4) remove and replace trees witli dead tops; (4) adequately
maintain and water the trees in the parking lot; (5) re�quire an annual status report on the trees by
a certified arborist for three years from the date of the tree planting; (6) require that tree planting
conforin with the approved development plans of the results way office park; (7) allow a
monetary cap of $75,000 for the berming and tree planting required in the added conditions.
The Use Permit conditions are as foltows unless amended above:
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT
DEPT. � .
1. APPROVED EXHIBITS
. Approval is based on Exhibits titled: "at&t/CN3242-A./November Drive/Results _
Way/Cupertino; California 95014" prepared by Jeffrey Rome �& Associates, Inc. dated
08/31/10 and consisting of seven sheets labeled T-1, A-0 through A-3, A-1.1 and C-1, except
as may be amended by the conditions contained in this resolution.
2. 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,
U-2010-03 January 6, 2011 2
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.
3. COLOCATION OF ANTENNAE
The treepole shall be structurally designed to accommodate the collocation of additional
antennae from other wireless carriers. The co-location agreement shall be at market rates
with reasonable compensation to the mast owner.
4. ABANDONMENT
If after installation, the aerial is not used for its permitted purpose for a continuous period of
18 months, said aerial and associated facilities shall be removed. The applicant shall bear
the eritire cost of demolition.
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 antennae and any associated mounting framework. The top portion of the tree pole
shall have branches of varying length to give the tree pole a conical form. Panel antennae
mounted away from the mast shall have needle covers to blend with the green foliage of the
artif cial branches. The mast shall be wrapped with a faux bark and any antenna mounted
close to the mast shall be painted brown to mimic a tree trunk. The foliage shall have a
� mottled green coloration.
The building permit shall be reviewed and approved to the satisfaction of the Coinmunity
� Developinent 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 antennae �
from public view.
- 7. EQUIPMENT ENCLOSURE " -
The base equipment enclosure shall be constructed of high qualiiy materials and/or be
screened by appropriate landscaping as determined by the Director of Community
Development. The final enclosure design, wall treatment/color and screening strategy shall be
reviewed and approved by the Director of Community Development prior to issuance of
building permits. . �
8. TREE REPLACEMENT
The removed trees are to be replaced with three (3) 24" box Coastal Redwoods in the
northwest coiner of the property. Final locations shall be reviewed and approved by the
U-2010-03 January 6, 2011 . 3
Director of Community Developinent prior to issuance of building permits. Applicant shall
provide a letter from a landscape architect, certifying that the newly planted trees are in good
health and the irrigation system is operating properly to maintain the trees. In addition, the
final landscaping plan shall conf'irm that the existing irrigation systems are operating properly
in order to service the existing and new trees in the area.
9. TESTING OF R.ADIO FREQUENCY (RF) LEVELS
Radio frequency levels will be monitored and tested annually for a period of three (3) years
from the date of the final occupancy approval. The result of these tests will be made available
to the Planning Department and the FCC for review. The City reserves the right to perform
code enforcement actions and/or revoke this use permit if the results show RF levels
inconsistent with the federal standards.
Please review conditions carefully. If you have any questions regarding the conditions of
approval, please contact the Department of Community Development at 408-777-3308 for
clarification. Failure to incorporate conditions into your plan set will result in delays at the
plan checking stage. If development conditions require tree preservations, do not clear the
site until required tree protection devices are installed.
Tlie conditions of project approval set fortl: lierein may i�zclude certain fees, dedication
require»zents, reservatioiz requi�•ements, and otlzer exactio�zs. Pursumzt to Government Code
Sectio�z 66020(d)(1), tlzese conditions constitute written notice of a statement of tlze amount of
sucli fees, and a description of tlze dedications, reservations, a�zd otlier exactions. You are
Itereby fui•tlzer �iotified tlzat tlze 90-day approval period in whiclz you may protest these fees,
dedications, and other exactions, pursuant to Government Code Section 66020(a), Izas begun.
If you fail to file a protest witlzin tlzis 90-day period complying with all of ilze requirements of
Section 66020, you will be legal[y barred from later clzallenging sucJz exactions.
Any interested person, including tlie applicant, prior to seeking judicial review of tlze City
Council's decision iiz tlzis matter, must first file a Petition for Reconsideration wit/i tl:e City
Clerk within te�z days afteY the mailing of the notice of t/ze Council's decision. Any petition so �
filed must co�nply with Municipal Ordinance code �2.08.096.
Sincerely, ,
_ \�
- `� - _
Grace Schmidt
Deputy City Clerk
cc: Community Development
Trillium Telecom
Allen Wang, Grace Chen, Guo Jin Attn. Scott Longhurst
10170 Iinperial Avenue 7901 Stoneridge Drive, Suite 503
Cupertino, CA 95014 Pleasanton, CA 94588
/
City of Cupertino
, , , 10300 Torre Avenue
Cupertino, CA 95014
(408) 777-3251
C U P E�tT 1 N O FAX (408) 777-3333
Community Development Department
September 16, 2010
Dave Yocke
Trillium Telecom
7901 Stoneridge Dr., Suite 503
Pleasanton, Ca, 94588
SUBJECT: PLANNING COMMISSION ACTIC)N LETTER - U-2olo-03, EXC-2o10-04 TR-2010-31
This letter confirms the decision of the P: anning Commission, given at the meeting of
September 14, 2010, approving a Use Permit to allow the construction of a personal wireless
service facility, consisting of a 74-foot tall mor opine with twelve panel antennas and associated
base equipment; approving a height exceptioti to allow antennas to be mounted on a monopine
at a height of about 67 feet or less; approving t1e removal and replacement of up to four Coastal
Redwood trees associated with the installatio�i of a proposed personal wireless service facility,
located at the Results Way office complex, accc�rding to Plannulg Commission Resolution No.(s)
6604, 6605 and 6606.
Please be aware that if this Permit is not u:.ed within a two-year period, it shall expire on
September 14, 2012.
Also, please note that an appeal of this decisic�n can be made within 14 calendar days from the
date of this decision. If this happens, you will be notified of a public hearing, which will be
scheduled before the City Council.
Sincerely,
� � � -
colin Jung
Senior Planner
Planning Department
Enclosures: Resolution 6604, 6605, 6606
CC: ECI Two Results, LLC, 1301 Shoreway Rd, Suite 2�0, Belmont, CA 94402
Allen Wong, 10170 imperial Avenue, Cupertino, C�. 95014
g:/pLanning/post hearing/actionletterU-2010-03,EXC-2010-04,TR-2L 10-31
TR-2010-31
CITY OF :�UPERTINO
10300 Tc�rre Avenue
Cupertino, C;alifornia 95014
RESOLUT [ON NO. 6606
OF THE PLANNING COMMISSION Ol� THE CITY OF CUPERTINO APPROVING
THE REMOVAL AND REPLACEMEN", OF UP TO FOUR COASTAL REDWOODS
ASSOCIATED WITH THE INSTALLATIC>N OF A PROPOSED PERSONAL WIRELESS
SERVICE FACILITY AT THE RESULTS WAY OFFICE COMPLEX
SECTION I: PROTECT DESCRIPTION
Application No.: TR-2010-31
Applicant: Dave Yocke (AT&T N oUility)
Location: Results Way
SECTION II: FINDINGS
WHEREAS, the Planning Commission of the City of Cupertino received an application
to approve the removal of four Coastal Redwoods that are by an approved
development plan considered protected trees subject to Chapter 14.18, the Protected
Tree Ordinance of the City of Cupertino; and
WHEREAS, the necessary puUlic notices have been given in accordance with the
Procedural Ordinance of the City of CupE rtino, and the Planning Commission has held
one or more public hearings on this matte:•; and
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, f.acts, exhibits, testimony and other evidence
submitted in this matter, the Planning Carnmission finds:
1. That the aforementioned trees are i:l conflict with the development proposal;
2. That the application for Tree Rem��val, file no. TR-2010-31, is hereby approved;
and
3. That the subconclusions upon which the findings and conditions specified in this
Resolution are based and containe�� in the Public Hearing record, as set forth in
the Minutes of the Planning Corr�mission Meeting of September 14, 2010 are
incorporated bv reference herein.
Resolution No. 6606 TR-2010-08 Apri113, 2010
Page 2
SECTION ITI: CONDITIONS ADMINIST��RED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVAL ACTION
Approval is based on Exhibits titled: "at&t/ CN3242-A/ November Drive/ Results
Way/Cupertino, California 95014" p�epared by Jeffrey Rome & Associates, Inc.
dated 08/31/10 and consisting of sev:n sheets labeled T-1, A-0 through A-3, A-1.1
and G1, except as may be amended by the conditions contained in this resolution.
2. TREE REMOVAL & REPLACEMENT
The removed tre�s �rc to Ue replaced with three 24" box Coastal Redwoods in the
northc��est corner of the property. Fir al locations shall be reviewed and approved
by the Director of Community Develo��ment. Applicant shall provide a letter from a
landsc�pe architect, certifying that thE� newly planted trees are in good health and
the irrigati�n systern is oper�ting prop��rly to maintain the trees.
3. NOTICr Or F�ES, DEDICATIONS, RF;SERVATIONS OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation rf�quirements, and other exactions. Pursuant to
Gover��inent Code Section 66020(d) (1), these Conditions constitute written notice of
a statement of the �mount of such fees, �nd a description of the dedications,
reser��ations, and other exactions. You are hereby further notified that the 90-day
appro��al period in wl1ic11 you may prc�test these fees, dedications, reservations, and
other ex�ctions, pursuant to Governm�nt Code Section 66020(a), has begun. If you
fail to file � protest within this 90-day ��eriod complying with all of the requirements
of Section 66020, you will Ue legally ba:-red from later challenging such exactions.
PASSED AND ADOPTED t11is 14th day oi SeptemUer 2010, at a Regular Meeting of the
Planning Cominission of t11e City of Cupertino, State of California, by the following roll
call vote:
AYES: COM iViTSSI ONERS: Chair Br ophy, Vice Chair Lee, Giefer, Kaneda
NOES: COMMISSIONERS: Miller
ABSTAIN: COMMISSIONERS: None
ABSENT: CO��N1ISSlONERS: None
ATTEST: APPROVED:
�s/Aarti Shrivastav� ,s/Paul Brophy
Aarti Shriv�stava, Director Paul Brophy, Chair
Community Devclopm���t Department Pl�nning Commission
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