101-CC Reconsideration Report on U-2010-03, EXC-2010-04 &TR-2010-31.pdf COMMUNITY DEVELOPMENT DEPARTMENT
CITY HALL
10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3308 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: February 15, 2011
Subject
Reconsideration petition for a City Council denial of an appeal of an approval for a personal
wireless service facility consisting of antennas mounted on a monopine and an equipment
enclosure in the rear parking lot of the Results Way Business Park.
Recommended Action
Conduct a hearing on the petition for reconsideration regarding the City Council’s decision on
the personal wireless service facility at the Results Way Business Park.
Adopt the draft resolution, Denying the Petition of Grace Chen and Guo Jin seeking Council
reconsideration of its decision to deny the appeal, and thus approve the personal wireless service
facility at the Results Way Business Park (See Attachment A).
Description
Petition to reconsider a City Council decision to deny an appeal of the Planning Commission
approvals of the following:
Use Permit (U-2010-03) request to allow a personal wireless service facility, consisting of twelve
panel antennas mounted on a 74 foot tall monopine and associated base equipment located at the
Results Way office park.
Height Exception (EXC-2010-04) request to allow antennas to be mounted on a monopine at a
height of 67 feet or less where 55 feet is allowed.
Tree Removal (TR-2010-31) request to allow the removal and replacement of four Coastal
Redwood trees associated with the proposed personal wireless service facility.
Property Location: Results Way (rear parking lot)/APN 357-20-042
Applicant: Dave Yocke, Trillium Telecom (for AT&T Mobility)
Petitioners: Grace Chen & Guo Jin
Property Owner: ECI Two Results, LLC
Discussion
Background
The following is a summary of the various events that occurred regarding this project leading up
to the reconsideration request:
Sept. 14, 2010 Planning Commission approved the entitlements for the personal wireless
service facility on a 4-1 vote (Attachments B, C, D & L).
Sept. 28, 2010 Project approval appealed by three adjacent neighbors, Allen Wang, Grace
Chen, Guo Jin (Attachment E).
Nov. 1, 2010 Appeal heard by City Council at two meetings who denied the
Jan. 4, 2011 appeal on a 4-1 vote (Attachments F, G, H & I).
Jan. 18, 2011 Appellants Grace Chen & Guo Jin file petition for reconsideration
(Attachment J).
Basis for the Reconsideration
The City’s Municipal Code, section 2.08.096, provides procedures for interested parties to
petition the City Council to reconsider its decisions. 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 preceding 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.
The petition for reconsideration consists of three pages. Reconsideration of this item constitutes
the fourth full hearing of this matter conducted by the City. The grounds for the reconsideration
are summarized below. It should be noted that three out of the four claims do not bear any
relationship to the criteria referenced above. The City’s findings of fact on each of claims and the
criterion are delineated below.
Finding: There are three claims that do not bear any relationship to the Reconsideration criteria
found in municipal code section 2.08.096(B).
Petition Response
Screening landscaping for the monopine needs
to follow strict aesthetic guidelines. We
request the addition of a condition to the
approval that the “additional screening trees at
the northern property line” will conform to that
of the approved redevelopment plans of the
Results Way office park and any revisions or
modifications of those plans. Landscape
screening plans are unclear and should be open
for public view.
Petitioners seek to add and refine development
conditions that have already been adopted by
the City Council (Attachment K) which does
not relate to the reconsideration criteria.
Petitioners’ interests are already addressed by
Council’s added condition #6: “require that
tree planting conform to the approved
development plans of the results way office
park.” In addition to #6, City Council added
six more conditions pertaining to landscaping.
Staff has already agreed to allow Astoria
Townhome owners to informally review the
landscape plans when they are submitted.
Request to add a new condition to the approval
requiring applicant to pay $30,000 to the
Astoria Homeowners Association for
additional irrigation, trees, fencing and related
matters connected to the visual screening of the
wireless facility.
Petitioners seek to add new development
condition to City Council approval, which does
not relate to the reconsideration criteria. There
are no legal grounds to add this condition.
We are talking to the property owners of 10340
& 10420 Bubb Road to explore a lease for a
cell site. This alternative site should have
similar criteria as compared to the approval
with less impact to residents. We request
additional time allowance
There is no evidence or facts that relate to the
reconsideration criteria. The request for
continuance should be denied. The applicant
already evaluated 10420 Bubb Road in its
alternative site analysis (PC staff report).
Applicant cited a lack of room and proximity
to the freeway where AT&T already has
coverage.
Finding: The petitioners have not offered any new evidence to demonstrate that Monta Vista
High School has become a viable alternative site for wireless facilities - Cupertino Municipal
Code, section 2.08.096(1).
Petition Response
The Fremont Union High School District has
recently entered into leases for cell sites at
several other high schools in the District.
More than 5 years have passed since AT&T
approached FUHSD about Monta Vista High
School (H.S.). Given what has happened at
other area high schools, AT&T should go back
and check about antenna opportunities at
The petitioners have not presented any
evidence that FUHSD would be willing to
consider Monta Vista H.S. for cell sites again.
The 2005 City approval of a wireless facility at
Monta Vista H.S. expired in 2007, so the
applicant would need to go through another
public entitlement process again. A request to
place a wireless facility at a school site is not
Monta Vista since District criteria may have
evolved.
before the Council.
Based on the above findings and the fact that the petitioners failed to provide relevant
grounds/evidence for the reconsideration, staff recommends that the City Council deny the
reconsideration request and uphold the Planning Commission's decision.
____________________________________
Prepared by: Colin Jung, AICP, Senior Planner
Reviewed by: Gary Chao, City Planner; Aarti Shrivastava, Community Development Director,
Carol Korade, City Attorney
Approved for Submission by: David W. Knapp, City Manager
Attachments:
A. City Council draft Resolution and Exhibit 1
B. Planning Commission Resolution No. 6604
C. Planning Commission Staff Report dated 9/14/10
D. Planning Commission meeting minutes from 9/14/10
E. Appeal filed by Allen Wang, Grace Chen & Guo Jin on 9/28/10
F. City Council staff report dated 11/1/10
G. City Council meeting action minutes of 11/1/10
H. City Council staff report dated 1/4/11
I. City Council meeting action minutes of 1/4/11
J. Petition for Reconsideration filed Jan. 18, 2011
K. City Council Action Letter dated 1/6/11
L. Approved plan set