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CC Resolution No. 11-054 Petition for Reconsideration of Council Decision to Deny an Appeal of DIR-2010-28, 11371 Bubb Rd RESOLUTION NO. 11 -054 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO DENYING THE PETITION OF SHAUL BERGER SEEKING COUNCIL RECONSIDERATION OF ITS DECISION TO DENY AN APPEAL OF DIR- 2010 -28, A DIRECTOR'S MINOR MODIFICATION TO ALLOW A PERSONALWIRELESS SERVICE FACILITY ON AN EXISTING PG &E POLE AT 11371 BUBB ROAD WHEREAS, on November 29, 2010, the Cupertino City Council received a staff report and recommendation to deny an appeal of a Director's Minor Modification approval of a T- Mobile personal wireless service facility proposed on an existing PG &E pole at 11371 Bubb Road. WHEREAS, the Cupertino City Council held a public hearing and at the conclusion of the hearing denied the appeal filed by Shaul Berger on a 3 -2 vote at its meeting of November 29, 2010, thus approving the project, DIR- 2010 -28, in accordance with Planning Commission Resolution No. 6616. WHEREAS, the Cupertino City Council's decision was within its discretion and made at a properly noticed public meeting. WHEREAS, Shaul Berger 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 April 5, 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 did not provide new relevant evidence which in the exercise of reasonable diligence, could not have been produced al: any earlier city hearing (See Municipal Code § 2.08.096B(1).) Evidence presented did not incontrovertibly prove that federal laws regarding maximum levels of radio frequency energy exposure would be violated. The City has required post - construction radio frequency energy monitoring to insure compliance with federal law. 3. The City Council did not exclude any evidence presented by the petitioners at any prior city hearing. (See Municipal Code § 2.08.096B(2).) 4. The petitioners have failed to present any evidence that the City Council failed to provide a fair hearing. (See Municipal Code § 2.08.096B(4).) Resolution No. 11 -054 5. The petitioners have failed to demonstrate that the City Council abused its discretion by denying the appeal of a Director's approval (file no. DIR- 2010 -28) of a personal wireless service facility on an existing PG &E pole located at 11371 Bubb Road. (See Municipal Code § 2.08.096B(5).) Specifically, the City Council determines that: a. The City Council's decision is supported by findings of fact attached as Exhibit 1. b. The findings of fact related to the City Council's decision were supported by substantial evidence in the record of proceedings. 6. The petitioners' Petition for Reconsideration of the City Council's decision of November 29, 2010 is DENIED, thereby affirming the original decision. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 5`" day of April, 2011, by the following vote: Vote Members of the City Council AYES: Wong, Santoro, Mahoney, Wang NOES: Chang ABSENT: None ABSTAIN: None ATTEST: APPROVED: V .mod City Clerk Mayor, City of Cupertino 2 Resolution No. 11 -054 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 particular 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; and/or 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 accompanied by a petition with 31 signatories. Reconsideration of this item constitutes the third full hearing of this matter conducted by the City. As stated in the petition's introductory paragraphs, the petitioner has made claims for reconsideration under the above referenced criteria #2, #4, #5b and #5c. The petitioner submitted his radiation analysis on January 27, 2011, 49 days after the reconsideration petition was filed on December 9, 2010. The analysis is a claim for reconsideration under referenced criteria #1. The City's findings of fact on each of these criteria are set forth below. 1. An offer of new relevant evidence which, in the exercise of reasonable diligence, could not have been produced at any earlier city hearing. Finding: The offer of new relevant evidence by the petitioner could have been presented at the City Council appeal hearing of November 29, 2010 or with the reconsideration petition submitted on December 9, 2010, instead of 49 days later on January 27, 2011. Petition Response In the petitioner's analysis of power The applicant's radio frequency energy density, assumptions are made about the consultant finds the petitioner's methodology T- mobile equipment and power density is and calculations to be reasonable, except for calculated as a percentage of the Maximum an error in using the proposed output power 3 Resolution No. 11 -054 Permissible Exposure (MPE) allowed by from the antenna as the output power from the the Federal Government for uncontrolled transmitter, which according to the consultant environments (1 milliwatt per centimeter makes all of the petitioner's results too high squared) There are three pages calculating by a factor of about 15 times (1500 %). The power density 12 feet, 20 feet and 30 feet consultant also points out that the petitioner is from the antenna. The results show calculating the power density in front of the exposures of 632 %, 227.5% and 101.1% of antennas which are 44 feet in the air, instead the MPE. of where people might be present such as at ground level or in nearby buildings. The applicant attempted to contact the petitioner, providing additional technical specifications on the T- Mobile cell facility, but has not been able to meet with the petitioner. To remove any doubt as to the accuracy of the consultant's RF energy analysis, the City has also conditioned the approval to require post - construction RF monitoring to make certain the RF energy exposures are within federal standards. 2. An offer of relevant evidence which was improperly excluded at any prior City hearing: Finding: The petitioner has offered no new relevant evidence that was excluded at any prior City meeting, nor has petitioner proven that any evidence was previously excluded by the City Council. The complaint is an opinion of the petitioner that has not been supported by any facts or evidence. Petition Response The petitioner alleges that his analysis The petitioner claimed at the Nov. 29, 2010 presented at the Nov. 29, 2010 meeting meeting, that his analysis of the calculated indicates that radio frequency (RF) energy energy levels at 12 feet from the antennas was exposure was more than 6 times higher than more than six times what was allowed by the approved government levels. The petitioner federal standard. The petitioner did not offer a further alleges that the Council voted on this copy of the analysis to the Council or staff. project without checking these claims that the After the hearing, staff requested that the RF energy exposure was higher than approved petitioner provide his analysis for the public government levels. record; the petitioner did not provide any analysis to the City until 49 days after his reconsideration petition was filed, and 5 days before the reconsideration hearing. The City Council can only act on the facts and evidence on hand when its decision is rendered. The City has relied on a reputable firm, 4 Resolution No. 11 -054 Hammett & Edison, to prepare the RF energy analysis. Hammett & Edison have clarified that the RF energy at this site is well within the federal safety standards at a level of 0.0012 milliwatt per centimeter squared for all ground level exposures, and 0.0022 milliwatt per centimeter squared for second floor exposures of any nearby residence. To remove any doubt as to the accuracy of the consultant's RF energy analysis, the City has also conditioned the approval to require post - construction RF monitoring to make certain the RF energy exposures are within federal standards. 4. Proof of facts which demonstrate that the City Council failed to provide a fair hearing: Finding: The petitioner has not provided any proof of facts that demonstrate the Council failed to provide a fair hearing. To the contrary, a review of the hearing on November 29, 2010 shows that the Council heard lengthy testimony from the petitioner and neighborhood residents, as well as information presented by staff and the applicant. The Council asked questions and received responses before deliberating on the project. Petition Res . onse The petitioner alleges that the City did not Since this project has been heard by both the provide a fair hearing because the Community .Planning Commission and the City Council, Development Director did not convene a public any alleged processing flaw at the Director design review hearing before acting to approve revel has been overcome at this point. At both the application. lie Planning Commission and City Council hearings, the petitioner has had opportunities to review and influence the design of the wireless facility. The Director's approach was riot based on a determination that the item would not be controversial; rather, the Director determined that the placement of the wireless equipment on an existing utility pole constituted a minor design change to the appearance of the pole. The City's adopted Wireless Facilities Master Plan indicates that the Director's approval is the proper processing o stion for such a facility design. 5. Proof of facts which demonstrate that the City Council abused its discretion by: 5 Resolution No. 11 -054 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. Finding: The petitioner has not provided any proof of facts that demonstrate the Council abused its discretion by rendering a decision which was not supported by findings of fact, or rendering a decision in which the findings of fact were not supported by the evidence. Petition Response The petitioner alleges that the City Council There is no requirement that the best solution never reviewed alternative cell site options that be found, only that a project is determined provide a better solution to all parties. The appropriate. The City's Wireless Facilities petitioner alleges that an alternative solution Master Plan expresses a design preference that involving a taller tower in a more remote wireless facilities in residential areas be sited location would provide better coverage and on existing utility towers and poles, rather collocation "savings" and result in a different than building new structures. Thus the decision. proposed site meets the requirements of the City's Wireless Facilities Master Plan. The City Council did discuss three alternative sites in its deliberations on November 29, 2010. One site was Linda Vista Park on a hill. This park was estimated to be about % of a mile away and was felt to be too far away to provide good coverage to the Bubb Road area. The second suggested alternative was the proposed AT &T monopine at Results Way which had the potential to serve another carrier at a lower height on the pole. It was inappropriate to consider the Results Way site as an alternative because no decision on the project appeal had been granted by Nov. 29, 2010. The Council knew that the AT &T monopine was 19 feet lower than the ground to the south, so any T- Mobile collocated antennas (at 46 feet, effectively 27 feet) would be similar to two nearby T- Mobile facilities and too low in height and too far away (1+ mile) to provide cell coverage to southern Bubb Road. The third site alternative considered by the Council was the San Jose Water Company water storage facility at Regnart Road and Lindy Lane. This facility is a covered earthen reservoir. Staff indicated that the structure 6 Resolution No. 11 -054 lacked height and a monopole would have to be built. The City Council rejected the concept of erecting a new, tall monopole cell site at the edge of the reservoir next to the existing houses. The petitioner alleges that T- Mobile could not This claim is immaterial to any basis for provide any information about the number of reconsideration. Also, the 1996 subscribers that would benefit from the Telecommunications Act, section proposed wireless facility. The Council "704(7)(B)(i)(I) prohibits any local decision - rendered a decision on this facility without making agency from unreasonably knowing if there was any public benefit. discriminating among providers of functionally equivalent (personal wireless) services. The petitioner alleges that his analysis See City Response to Petitioner's claim under presented at the Nov. 29, 2010 meeting Municipal Code section 2.08.096(B)(1) and indicates that radio frequency (RF) energy (B)(2). exposure was more than 6 times higher than approved government levels. The petitioner further alleges that the Council voted on this project without checking these claims that the RF energy exposure was higher than approved government levels. 7