DIR-2021-025 - 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: November 17, 2021
Subject: Director's Minor Modification, DIR-2021-025, to allow the installation of
three-antennas, in addition to the nine-antennas existing, on a eucalyptus
monopole tower at Cupertino City Hall located at 10850 Torre Avenue,
APN 369-31-033.
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 Greg Davis, Zoning Specialist with J5 Infrastructure Partner, representing
AT&T, is requesting to add three antennas, in addition to the existing nine antennas on a
eucalyptus monopole tower at Cupertino City Hall. The approved total number of
antennas would increase from nine to 12.The monopole is located on the northeast corner
of the City Hall property, adjacent to Torre Avenue. To the west of the property are office
uses, to the east are single-family homes (across Regnart Creek), and to the north are
medium density townhomes.
DISCUSSION
The original cell tower was approved on October 6, 2015, by City Council for an
Architectural and Site Approval (ASA-2014-10),Development Permit(DP-2014-07, and a
Height Exception(EXC-2014-12) to allow a co-locatable cell tower with a height of 80 feet
and antennas to be mounted at a height of no more than 66 feet. The structure was
approved at 66 feet in height with six antennas. AT&T had collocated its nine antennas
at 52 feet in height. The proposal by AT&T is not increasing the height or size of the
structure, rather only the number of antennas from nine to 12. The applicant has
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submitted the application subject to Section 6409 of the Spectrum Act of 2012, as further
described in the next page.
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, 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 provides the criteria details and comparison with the
current application from Verizon.
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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 The existing cell tower with antenna
one additional antenna array with separation from the nearest existing is 75, with the antenna located at
antenna not to exceed twenty feet, whichever is greater;for other eligible 52'. The added antenna will not
support structures, it increases the height of the structure by more than increase the height and will be
10%or more than ten feet, whichever is greater. Changes in height should consistent with the antenna height
be measured from the original support structure in cases where of the existing antenna. Thus, no
deployments are or will be separated horizontally, such as on buildings' increase in height is proposed.
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 tower None of the added antenna would
that would protrude from the edge of the tower more than twenty feet, or protrude further than what was part
more than the width of the tower structure at the level of the appurtenance, of the original approval. Thus, no
whichever is greater. For other eligible support structures, it involves protrusion of the structure is
adding an appurtenance to the body of the structure that would protrude proposed that would exceed the
from the edge of the structure by more than six feet. allowances listed.
For any eligible support structure, it involves installation of more than the No cabinets are proposed to be
standard number of new equipment cabinets for the technology involved, added.
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.
It entails any excavation or deployment outside the current site. None proposed as no groundwork
will be done.
It would defeat the concealment elements of the eligible support structure. The proposed work will have no
effect on the existing concealment.
Please review the photo simulations
(Attachment C)
It does not comply with conditions associated with the siting approval of The cell tower was approved with a
the construction or modification of the eligible support structure or base Architectural and Site Approval
station equipment,provided however that this limitation does not apply to (ASA-2014-10), Development
any modification that is non-compliant with the siting approval only in a Permit (DP-2014-07, and a Height
manner that would not exceed the thresholds identified in (1) through (4) Exception (EXC-2014-12). None of
above. 47 CFR 1.6100(b)(7)(i)-(vi) the proposed changes exceed the
thresholds identified in 1-4 listed
above.
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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
Waterford Consultant to analyze the cumulative RF energy exposure of the Verizon and
AT&T antennas (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
Ground Level Around Monopole 58.4%
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
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 "AT&T Site Number CCL02719, 10800 Torre Ave.
Cupertino, CA 95014." prepared by J5 Infrastructure Partners, consisting of 14 sheets
labeled T-1, GN-1, A-1 - A-5, D-1, G-1, G-2, RF-1, EME-1, and SS-1, and dated on
9/17/21, except as may be amended by the conditions contained in this resolution.
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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
detailed in the completed RF-EME Study completed by Waterford Consultants and
titled "Central Cupertino Relo CC2719" dated August 23, 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'
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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.
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 November 17, 2021. The 14-calendar-day appeal
period will expire on December 1, 2021.
Enclosures:
Attachment A: Plan set
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Attachment B: RF-EME Study completed by Waterford Consultants and titled "Central
Cupertino Relo CC2719" dated August 23, 2021.
Attachment C: Photo simulations
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