Exhibit CC 02-15-2011 Item No. 17 RECONSIDERATION OF DENIAL OF Appeal of Approval of U-2010-03, EXC-2010-04 & TR-2010-31 I 'j i1 �. r , t, , E 1 I T , 4 l
s l
Reconsideration of Denial of Appeal of
Approval of U- 2010 -03, EXC- 2010 -04 & TR-
2010-31
Petitioner: Grace Chen, Guo Jin
Applicant: Dave Yocke, Trillium Telecom (for AT &T Mobility)
Project Location: Results Way (rear parking lot)
Project Scope:
Use Permit, Height Exception & Tree Removal to allow the
construction of a personal wireless service facility,
consisting of 12 panel antennas mounted at 67' or less on a
74 -ft tall monopine with associated base equipment.
9/14/10 - Planning Commission approved project (4 -1 vote
9/28/10 - Project appealed by three residents
11/1/10 & 1/4/11 - Appeal denied by City Council (4 -1 vote)
1/18/11 - Two appellants petition for reconsideration.
Grounds for Reconsideration
under CMC Section 2.08.096
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.
1
Grounds for Reconsideration
under CMC Section 2.08.096 (contd.)
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.
Basis of Reconsideration
• Three of the four claims do not bear any
relationship to the reconsideration criteria.
• One claim may be construed as new,
relevant evidence.
2
Basis of Reconsideration
Three claims bear no relationship to reconsideration
criteria in CMC 2.08.096.
Petition Response
1) Screening landscaping needs to follow 1) The petitioners seek to add and refine
strict aesthetic guidelines. Landscaping previous conditions of approval, which
must conform to the approved do not relate to the reconsideration
redevelopment plans for the office park. criteria.
Landscaping is not clear and should be 2) The petitioners seek to add new
open for public view. development condition to City approval,
2) Request to add a new condition to the which does not relate to the
approval, requiring applicant to pay reconsideration criteria.
$30,000 to the Astoria HOA for 3) There is no evidence or facts that relate
improvements related to the wireless to the reconsideration criteria. Request
facility. for continuance should be denied. Site
3) Talking to owners of 10340, 10420 Bubb was already evaluated by applicant.
Road to explore a lease for a cell site.
Need time allowance.
Basis of Reconsideration
The petitioners have not offered any new evidence to
demonstrate that Monta Vista H.S. has become a
viable alternative site for wireless facilities.
Petition Response
4) Fremont Union High School District has 41 The petitioners have not presented any
recently entered into leases for cell sites evidence that FUHSD would be willing
at several other high schools in the to consider Monta Vista H.S. for cell site
district. More than 5 years have passed development. Existing 2005 city
since AT &T approached FUHSD. Given approval has already expired.
what has happened at other schools,
AT &T should go back and check.
3
Recommendation
It is recommended that Council deny the
petition for reconsideration of U- 2010 -03, EXC-
2010-04 and TR- 2010 -31 per the draft
resolution.
4
cc 1( fit
11
H b i
10192 imperial Ave.
Cupertino. CA 95014
February 15, 2011
Via Electronic Mail
Ms. Carol Korade
City Attorney
City of Cupertino
(c attornevr(12cupertino,org)
Cupertino City Hall
10300 Torre Avenue
Cupertino, CA 95014 -3202
Re: Addendum to Reconsideration of Appeal of an Approval of a Wireless Service Facility on
Results Way, dated January 6, 2011
Dear Ms. Korade:
Please include the attached exhibit titled "Exhibit I : Addendum to Reconsideration of Appeal of
an Approval of a Wireless Service Facility on Results Way, dated January 6, 2011 for the
inclusion of the petition for reconsideration.
Thank you.
Sinterell'.
Grace Chen • Guo Sits
Exhibit 1: Addendum to Petition for Reconsideration of Appeal of an Approval of a Wireless
Service Facility on Results Way, dated January 6, 2011
Prologue: Astoria residents are moving out
City of Cupertino's Municipal Code Sec.
2.08.096 (1) An offer of new relevant
evidence which. in the exercise of
reasonable diligence, could not have been
produced at any earlier city hearing.
Support Details
Date Relevant Events
09/14/10 Planning Committee approved personal wireless service
facility
10/29/10 10154 Imperial Ave., listed for sale
11/01/10 Appeal heard by City Council (continuance)
01/05/11 Appeal heard by City Council denied
01; 1 1 10170 Imperial Ave., listed for sale
The sellers of these homes are our friends. What is said
and recorded in the City Council meeting may be
deleteri3us to the sale of their home. We must be
prudent in our language in the appeal.
Point 1: The need for an integrated
landscape plan. Supporting Details
Sec. 2.08.096 (2) An offer of relevant (1) Inconsistency in new and existing irrigation
evidence which was improperly excluded at systems.
any prior city hearing
Cite: Re: January 6, 2011 Appeal of an (2)Approved development plans of the Results Way
approval of a vviceless service faciltiy on office park show new landscaping plan and irrigation
Results Way system that aim in accomodating the new plans.
Page 1, paragraph 1 ... "(6) require that tree (3) Existing irrigation systems can not accomodate the
planting conform with the approve,: approved plans. It will need to be replaced when the
development plans of the results way office new construction commences.
park."
Page 3. paragraph 1, ... "final landscaping (4) The care and proper maintenance of the existing and
plan shall confirm that the existing new trees in the discussed area will succumb to undue
irrigation systems are operating properly in environmental stress, and can he avoided if properly
order to service the existing and new trees executed from the beginning.
in the area."
Page 1 of 2
Point 2: Request S30,000, to be
appropriated to Astoria HOA Supporting Details
Sec. 2.08.096 (2) An offer of relevant (1) Astoria community can not provide input or impact
evidence w hich was improperly excluded at on the decision of the landscaping in the Results Way
anv prior city hearing office park. and can not be assured that the landscaping
will adequately serve screening of the treepole for
Astoria townhouse development.
(2) The Astoria development will also need to re-
evaluate screening of the treepole from its property.
(3) The south side of the Astoria townhouse complex
continues to extend from the existing south side wall
westward toward Imperial Avenue for approximately
160 feet The visual impact on this section of the
Astoria development has not been addressed.
(4) The a ppellants did not have any opportunity to
respond to the "ideal compromise ", approved by the
City Council, on January 4, 2011.
(5) Clarification: Budeet is to be allocated exclusively
for the specific use along Astoria's south side of the
property.
Point 3: Re- negotiate with Fremont
Union High School District (FUHSD) of
lease opportunities Supporting Details
• Sec. 2.08.096 (1) An offer of new relevant (1) On January 4, 201 1,•the FUHSD Governing Board
evidence which. in the exercise of approved to lease and construction of new cell tower at
reasonable diligence. could not have been Lynbrook High School.
produced at any earlier city hearing.
(2) AT &T has repeated stated that the ideal site is that
of Morita Vista HS (MVHS) In 2005, the City
approved of the wireless facility at MVHS, but was
withdrawn by AT &T because FUHSD chose not to
enter into leasing agreement at that time. The permit
expired in 2007.
(3) Over the years FUHSD has increased its flexibility
in its policy in the approval of lease and construction of
cell tower in the high school district.
(4) AT &T has not present any facts of recent date that
AT &T has approached FUHSD to refute possible
leasing opportunities at MVI IS. given these new
developments.
(5) The site of MVHS is technological feasible and
may be potentially available.
Page 2 of 2
c C 1 � s lit
ce L4 I
aC
j l JOHN DI BENE
Gereral Attorney AT &T Services, Inc.
Legal Department 2600 Camino Ramon
Room 2W901
San Ramon, California 94583
925.543.1548 Phone
925.867.3869 Fax
jdb @att.com
February 14, 2011
Via Electronic Mail
Ms. Carol Korade
City Attorney
City of Cupertino
(cityattorney@cupertino.org)
Cupertino City Hall
10300 Torre Avenue
Cupertino, CA 95014 -3202
Re: Response to Petition for Reconsideration of Appeal of an Approval of a
Wireless Service Facility on Results Way, dated January 6, 2011
Dear Ms. Korade:
AT &T has reviewed the petition for reconsideration ( "Petition ") filed by Grace
Chen and Guo Jin ( "Petitioners ") on January 18, 2011 and it believes that the Petition
must be denied because it fails to identify any ground on which reconsideration may be
allowed pursuant to the City of Cupertino's Municipal Code.
Pursuant to section 2.08.096 of the Municipal Code, the only grounds that may be
raised in a petition for reconsideration are:
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
Ms. Korade
City of Cupertino
February 14, 2011
Page 2
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.
As explained below, the Petition fails to raise any of these grounds, and hence
should he denied.
First, the Petition begins by asserting that "Astoria residents are moving out." In
particular, Petitioners suggest that the approval of AT &T's use permits has caused
residents of the Astoria townhome complex to put their homes up for sale. However, by
Petitioners' own admission, that suggestion is "not substantiated." Instead, Petitioners'
assertion is pure speculation. Such speculation is wholly insufficient to constitute "new
relevant evidence" under the Council's rules that could not have been produced at an
earlier hearing (section 2.08.096(1)). Nor does such speculation show that the Council
improperly excluded any evidence (section 2.08.096(2)), that the Council acted in excess
of its jurisdiction (section 2.08.096(3)), that the Council failed to provide a fair hearing
(section 2.08.096(4)), or that the Council abused its discretion in any way (section
2.08.096(5)). In addition, even if such speculaticn were considered evidence, the Petition
offers no explanation as to why it could not have been presented it earlier. AT &T's use
permits were granted back in September 2010. Presumably, if the approval of AT &T's
permits had actually affected the number of Astoria townhomes put on the market.
Petitioners could have presented such evidence Lt either of this Council's subsequent
hearings, on November 1, 2010 or January 6, 2011. The Petition certainly does not
suggest that facts have changed so dramatically in the twelve days between the Last
hearing and the date of the Petition as to warrant reconsideration.
Point 1 of the Petition requests that the Council confirm and clarify two matters
addressed in the Council's January 6. 2011 letter, which described the action taken at the
Council's January 4 meeting. First, Petitioners ask the Council to "confirm the `additional
screening trees at the northern property line' wil I conform to that of the approved re-
development plans of the 19.8 acre Results Way office park." This request is not a proper
ground for reconsideration, because it does not claim that the Council has failed to
consider any new, relevant evidence (section 2.08.096(1)); improperly excluded evidence
(section 2.08.096(2)); acted in excess of its jurisdiction (section 2.08.096(3)); failed to
provide a fair hearing (section 2.08.096(4)); or abused its discretion (section 2.08.096(5)).
Point 1 goes on to say that the "[1]andscape plans on the Results Way" be "further
clarified and explained in detail" and that "full landscape plans ... be made available for
public viewing and open for review" by Petitioners. This also is not a proper request for
reconsideration because it is not based on any of the grounds set forth in Section 2.08.096
of the Municipal Code. In addition, this request is unnecessary in any event. because the
Council has already required that AT &T's plans to plant and replace trees be "reviewed
and approved by the Director of Community Development prior to the issuance of
building permits" and that AT &T's "final landscaping plan ... confirm that the existing
Ms. Korade
City of Cupertino
February 14, 2011
Page 3
irrigation systems are operating properly in order to service the existing and new trees in
the area." 1/6/11 Letter at 2 -3.
Point 2 of the Petition asks the Council to order AT &T to give $30,000 to the
Astoria Homeowners Association. While Point 2. lists certain landscaping needs that the
Homeowners Association might use that money to address, it makes clear that the
Homeowners Association would not be "limited to" such uses. Not only does Point 2 fail
to identify any valid ground for reconsideration (as set forth in Section 2.08.096), but it
also attempts to exact funds from AT &T for unlimited and improper purposes. Point 2
therefore must be rejected.
In Point 3, the Petitioners assert that AT &T should be required to begin its search
for a site all over again, focusing this time on Monta Vista High School. But as the
Petition recognizes, AT &T already sought to install a wireless facility at Monta Vista
High School in 2005, and that effort was unsuccessful. The Petition offers no indication
or any reason to believe that AT &T would meet with any more success were it to renew
its request at the school now. But even if such information could be found, that would not
meet the rehearing standard at this late date. AT &T has been searching for over five years
for a site in the area to remedy its coverage gap. Petitioner's suggestion that AT &T go
back to sites that it has already investigated in detail and explored is a transparent attempt
to prolong AT &T's search even further. More to the point, Point 3 fails to identify any
valid ground for reconsideration as set forth in Section 2.08.096 of the Municipal Code.
The Petitioners' request in Point 4 for additional time to pursue preliminary
discussions with other property owners similarly is not a ground for reconsideration. In
Point 4. the Petition asserts that "[w]e are in preliminary discussion with property
owner(s) on nearby Bubb Road, with specific address of 10340 Bubb Road and 10420
Bubb Road ... to explore the leasing of space on the property to AT &T for a personal
wireless service facility." This section of the Petition does not claim that the Council
improperly excluded any evidence (section 2.08.096(2)), that the Council acted in excess
of its jurisdiction (section 2.08.096(3)), that the Council failed to provide a fair hearing
(section 2.08.096(4)), or that the Council abused its discretion in any way (section
2.08.096(5)).
Point 4 also does not `offer of new relevant evidence which, in the exercise of
reasonable diligence, could not have been produced at any earlier city hearing" (section
2.08.096(1)). First, Petitioners offer no indication that the property owners on Bubb Road
have any interest in leasing space to AT &T. Second, Petitioners do not (and indeed,
cannot) offer any evidence that such properties would address AT &T's coverage needs.
Third, Petitioners offer no explanation why they could not have presented this "evidence"
earlier. The Council provided Petitioners with ample opportunity, at both its November 1
hearing and January 4 hearing, to present any alleged evidence of alternative sites.
Petitioners should not be allowed to use the reconsideration procedure as an excuse to
further delay the application process.
* **
Ms. Korade
City of Cupertino
February 14, 2011
Page 4
AT &T has worked diligently for the last five years to find an ideal site in
Cupertino to install its wireless facilities. AT &T needs a new site in the area to address a
gap in its wireless coverage — a gap that has become of increasing concern not only to
AT &T and its commercial customers, but also to the City's fire and emergency
personnel. At its January 4 meeting, the Council reached the ideal compromise between
AT &T's need for coverage and area residents' concerns regarding the visual impact of
the proposed facility. The Council conditioned its approval of AT &T's application on
AT &T taking measures to screen its facility and ensure that it will blend in with the
surrounding environment. The Petition fails to identify any reason for the Council to
reconsider its comprehensive decision. Therefore, AT &T respectfully requests that the
Council deny the Petition.
Respectfully submitted,
.�� i
1
Cc: City Clerk, City of Cupertino (cityclerk @cupertino.org)