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DIR-2022-011 - Action LetterCITY 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: Jeffrey Tsumura, Associate Planner Date: July 13, 2022 Subject: Director's Minor Modification, DIR-2022-011, to allow the renewal of a previously approved Director's Minor Modification (DIR-2010-44) for the continued operation of a T-Mobile personal wireless facility, and removal of nine existing antennas and installation of six new antennas and associated equipment to the facility located at 10110 California Oak Way, APN 342-63-001. 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, Eric Lentz, of Lentz Consulting, LLC, representing T-Mobile, is proposing to renew its current personal wireless facility located on an existing lattice tower located at the Monta Vista electrical substation located at 10110 California Oak Way (Figure 1). In addition, the applicant is proposing the removal of nine existing antennae and replacing with six new antennae and associated equipment. The approved total number of antennae would decrease from nine to six. 1 Site Map / _' P! Figure 1 Vicinity Map r 7 XL DISCUSSION The original T-Mobile antennas were approved on October 27, 2005, under DIR-2005-27 as a collocation with an existing MetroPCS personal wireless service facility. The scope of work included six T-Mobile antennas at a maximum height of approximately 47'-4" feet (45'-0" on -center) and base equipment enclosure under the tower. On January 25, 2011, the T-Mobile panels antennas were renewed and extended for an additional 10 years under DIR-2010-44. The DIR expired on October 27, 2020. During this time, three additional T-Mobile antennas and three RRU's were added under B-2016-1580 and installed below the existing antenna arrays at a height of 40'-8" (36'-8" on -center). The applicant is proposing to remove these existing antennas and RRUs and replace these sectors with a total of six new antennas, for a net loss of three antennas. The mounts will be reused, and sectors raised to a height new height of approximately 62'-8" feet at the highest point measured from grade. The renewal of expired cell site approvals gives the City the opportunity to check facility maintenance and assess the state of any previously required camouflage technology to Pj determine if improvements can be made in the appearance of existing facilities. In this case, no camouflage methods were previously required. The equipment color does not contrast greatly with the steel lattice material, and although the overall height of the equipment is increasing from approximately 45'-0" to 60'-0" measured from equipment centerline, adjacent residential properties are located far from the cell facility, ranging from approximately 657 to 998 feet away. 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 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 T-Mobile. The 6409 Checklist also demonstrates the eligibility of the project as a streamlined facility. 9 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 antenna arrays are of one additional antenna array with separation from the nearest 47'4" (45'-0" on -center) above existing antenna not to exceed twenty feet, whichever is greater; for grade. The new antennas will be other eligible support structures, it increases the height of the located at a height of structure by more than 10% or more than ten feet, whichever is approximately 62'-8" (60'-0" greater. Changes in height should be measured from the original on -center), which falls under the support structure in cases where deployments are or will be separated maximum height allowance of horizontally, such as on buildings' rooftops; in other circumstances, 20 feet to qualify for an eligible changes in height should be measured from the dimensions of the facilities request. 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 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 One existing ground cabinet than the standard number of new equipment cabinets for the will be removed and replaced technology involved, but not to exceed four cabinets; or for base with two new cabinets of smaller stations, it involves installation of any new equipment cabinets on the dimensions that will replace the ground if there are no pre-existing ground cabinets associated with footprint of the existing cabinet. the structure, or else involves installation of ground cabinets that are This ground equipment is more than 10% larger in height or overall volume than any other completely enclosed within an round cabinets associated with the structure. existin wood ence enclosure. 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 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 facility was approved as of the construction or modification of the eligible support structure or a collocation under DIR-2005- base station equipment, provided however that this limitation does 27. None of the proposed not apply to any modification that is non -compliant with the siting changes exceed the thresholds approval only in a manner that would not exceed the thresholds identified in 14 listed above. identified in (1) through (4) above. 47 CFR 1.6100(b)(7)(i)-(vi) 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. 2.4% 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 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 "SF15002A BA5002 PG&E 10110 California Oak Way, Cupertino, CA 95014" prepared by WSD Engineering, Inc., consisting of 16 sheets labeled T-1 through T-6, A-1 through A-7, E-1, and G-1 dated on 2/15/22, except as may be amended by the conditions contained in this resolution. 2. PERMIT RENEWAL/EXPIRATION The permit is granted for the minimum period of 10 years in accordance with State law. This permit is renewed with the conditions of approval enumerated under DIR- 2005-27, except the Director's approval is extended to October 27, 2030. 5 3. 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. 4. 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. 5. BUILDING PERMIT REQUIRED This approval does not constitute building permit approval; a separate building permit is required. 6. 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 Christopher Stollar titled: "Radio Frequency Electromagnetic Fields Exposure Report" dated January 27, 2022. 7. 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. 8. 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' 6 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. 9. 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 July 13, 2022. The fourteen -calendar -day appeal period will expire on July 27, 2022. Enclosures: Attachment A: Plan set 7 Attachment B: RF Study completed by Christopher Sollar and titled "Radio Frequency Electromagnetic Fields Exposure Report" dated January 27, 2022.