DIR-2021-016 Action Letter CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014 (408) 777-3308
To: Mayor and City Council Members
Chairperson and Planning Commissioners
From: Benjamin Fu, Director of Community Development
Prepared by: Gian Paolo Martire, Senior Planner
Date: October 1, 2021
Subject: Director's Minor Modification, DIR-2021-016, to allow the removal and
replacement of three antenna with six on an existing cell tower located at
10655 Mary Avenue, APN 326-06-050.
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 fourteen calendar days.
BACKGROUND
The applicant Bob Gundermann, of Beacon Development, representing Verizon, is
requesting to remove three existing antennae, and replacing with six new antennae at an
existing cell tower located at 10655 Mary Avenue. The approved total number of
antennae would increase from six to nine. The property is zoned Planned Quasi-Public—
Mini Storage, P(BQ,Mini-Stor), and is located just south of Highway 280. To the west of
the property is Highway 85, to the east are single-family homes, and to the south is the
City of Cupertino's Corporation Yard.
DISCUSSION
The original cell tower was approved on October 4, 1993, by City Council with a
modification to the original use permit (4-U-76) for the mini-storage facility on site. The
structure was approved at 60-feet in height with six antennae. The proposal by Verizon
is not increasing the height or size of the structure, rather only the number of antennae
from six to nine . The applicant has submitted the application subject to Section 6409 of
the Spectrum Act of 2012, as further described in the next page.
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Requirements and Criteria for a "Section 6409" Wireless Facilities Request
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, in order 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 Verizon.
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 cell tower with
Of one additional antenna array with separation from the nearest antenna is 51'. The added
existing antenna not to exceed twenty feet, whichever is greater;for antenna will not increase the
other eligible support structures, it increases the height of the height. Thus, no increase in
structure by more than 10% or more than ten feet, whichever is height is proposed.
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.
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
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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 No cabinets are proposed to be
than the standard number of new equipment cabinets for the added.
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
round cabinets associated with the structure.
It entails any excavation or deployment outside the current site. None proposed as no
roundwork will be done.
It would defeat the concealment elements of the eligible support The proposed work will have no
structure. effect on the existing
concealment.
It does not comply with conditions associated with the siting approval The cell tower was approved
of the construction or modification of the eligible support structure or with a modification to 4-U-76.
base station equipment, provided however that this limitation does None of the proposed changes
not apply to any modification that is non-compliant with the siting exceed the thresholds identified
approval only in a manner that would not exceed the thresholds in 1-4 listed above.
identified in (1) through (4)above.47 CFR 1.6100(b)(7)(i)-(vi)
As demonstrated by the 6409 Checklist, the project is eligible as a streamlined facility.
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
Anywhere on ground level. <1%
The RF consultant notes that RF exposure can be significant around the antennas. The
tower is inaccessible to the public,but the consultant recommends mitigation for wireless
carrier technicians and maintenance staff who service the equipment to prevent
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occupational exposures above Federal standards. The consultant recommends
explanatory signage at the base of the tower. The consultant also recommends
appropriate RF safety training to include personal monitor use and lockout/tagout
procedures for all personnel and contractors with rooftop access.
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 "Verizon/ Site Number 116604 Hwy 280/85
Cupertino, CA 95014." prepared by Fullerton Engineering Design, consisting of 12
sheets labeled T-1, T-2, C-1.1 — C-6, G-1 -G-3 dated on 5/12/21, except as may be
amended by the conditions contained in this resolution.
2. PREVIOUS CONDITIONS OF APPROVAL
All prior conditions of approval through past approvals shall remain in effect unless
superseded by or in conflict with subsequent conditions of approval and as
specifically amended by this Director's Minor Modification approval.
3. 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.
4. BUILDING PERMIT REQUIRED
This approval does not constitute building permit approval; a separate building
permit is required.
5. 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
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detailed in the completed by SiteSafe in a report titled: "Crown Castle on behalf of
Verizon Wireless Site BU Number — 815035 Application ID — VzW order 548049 Site
Name—HWY 280/85 REV. Site Compliance Report" dated May 24, 2021.
6. 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.
7. 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,
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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.
8. 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 October 1, 2021. The fourteen-calendar-day appeal
period will expire on October 15, 2021.
Enclosures:
Attachment A: Plan set
Attachment B: RF Study completed by SiteSafe and titled "Crown Castle on behalf of
Verizon Wireless Site BU Number - 815035 Application ID - VzW order 548049 Site
Name-HWY 280/85 REV. Site Compliance Report" dated May 24, 2021.
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