DIR-2022-012 - 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: August 16, 2022
Subject: Director's Minor Modification, DIR-2022-012, to allow the addition of six
antennas and associated equipment on an existing personal wireless service
facility located at 20401 Stevens Creek Boulevard, APN 316-26-090.
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 add six panel antennas on an existing personal wireless service facility located on the
roof of an existing office building at 20401 Stevens Creek Boulevard within the St. Joseph
Place retail center. No increase in the height of the facility, expansion of the existing
equipment pad, or increase in the number of equipment cabinets contained within the
pad is proposed. Some associated equipment will be installed within an existing T-Mobile
enclosure onsite. The total number of antennae would increase from 12 to 18.
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Site
Figure I Vicinity Map
DISCUSSION
The existing T-Mobile personal wireless service facility consists of six panel antennas
mounted at a height of approximately 50'-4" above grade on the roof of the existing office
building. The proposed modification adds six new antennas to the wireless facility on
sectors below the existing antennas and therefore does not increase the overall height of
the facility.
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
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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 below 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.
Table 1: Project conformance with Section 6409
6409 Chec ist
Criteria
Application Jff�]
It increases the height of the tower by more than 10% or by the height
The existing rooftop -mounted
of one additional antenna array with separation from the nearest
wireless facility is
existing antenna not to exceed twenty feet, whichever is greater; for
approximately 504" in height
other eligible support structures, it increases the height of the
measured from grade. The added
structure by more than 10% or more than ten feet, whichever is
antennas will not increase the
greater. Changes in height should be measured from the original
height and will be below height
support structure in cases where deployments are or will be separated
of the existing antennas. Thus,
horizontally, such as on buildings' rooftops; in other circumstances,
no increase in height is
changes in height should be measured from the dimensions of the
proposed.
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 sixfeet.
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.
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It would defeat the concealment elements of the eligible support
The existing structure has no
structure.
concealment elements other
than its location towards the
back of the building away from
the public ROW. Please review
the photo simulations
(Attachment Q.
It does not comply with conditions associated with the siting approval
None of the proposed changes
of the construction or modification of the eligible support structure or
exceed the thresholds identified
base station equipment, provided however that this limitation does
in 1-4 listed above.
not apply to any modification that is non -compliant with the siting
approval only in a manner that would not exceed the thresholds
identified in (1) through (4) above. 47 CFR 1.6100(b)(7)(04vi)
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
Nearest residential area.
12%
Anywhere on ground level.
40%
The RF consultant notes that RF exposure can be significant for authorized personnel on
the rooftop immediately surrounding the tower. 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 boundary markers as designated in the
RF Study, explanatory signage at the base of the tower, roof access hatch, and boundary
lines, and that T-Mobile coordinate with the landlord to arrange a shut -down of the base
station prior to any work in the trees onsite above 23 feet.
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. Further, the proposal
complies with Section 6409 of the Spectrum Act of 2012 as detailed in Table 1 above.
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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 "SF04552A — SF552 HWY 85 & 5t1' FOA Project
20401 Stevens Creek Blvd, Cupertino, CA 95014" prepared by Precision Design &
Drafting, Inc., consisting of nine sheets labeled T-1, T-2, A-1 through A-5, E-1, and E-
2 dated on 3/15/22, except as may be amended by the conditions contained in this
resolution.
2. 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.
3. BUILDING PERMIT REQUIRED
This approval does not constitute building permit approval; a separate building
permit is required.
4. 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 Hammett & Edison, Inc. titled: "T-Mobile West
LLC, Base Station No. SF04552A, 20401 Stevens Creek Boulevard, Cupertino, CA"
dated May 20, 2022.
5. 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.
6. 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
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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,
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.
7. 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
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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 August 16, 2022. The 14-calendar-day appeal period
will expire on August 30, 2022.
Enclosures:
Attachment A: Plan set
Attachment B: RF Study completed by Hammett & Edison, Inc. titled: "T-Mobile West
LLC, Base Station No. SF04552A, 20401 Stevens Creek Boulevard, Cupertino, CA" dated
May 20, 2022.
Attachment C: Photo simulations
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