106-E. PC Meeting Minutes dated 11/9/10.pdfATTACHMENT E
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
CITY OF CUPERTINO PLANNING COMMISSION
APPROVED MINUTES
6:45 P.M. November 9, 2010 TUESDAY
CUPERTINO COMMUNITY HALL
The regu Planning Commission meeting of November 9, 2010 was called to order at 6:45 p.m.
in the Cupe ' o Community Hall, 10350 Torre Avenue, Cupertino, California, by Chairperson
Paul Brophy.
ROLL CALL
Commissioners present:ixperson:
V Chairperson:
Paul Brophy
Winnie Lee
Lisa Giefer
David Kaneda
Marty Miller
Staff present: Community Development D ctor: Aard Shrivastava
City 1, Gary Chao
Senior Planner: Colin lung
Senior Planner: 'Honda Snelling
Associate Planner: Ghosh
Asst. City Attorney: Vale 'e Armento
APPROVAL OF MMUTES: None
WRITTEN COMMUNICATIONS: None
POSTPONEMENTS/REMOVAL FROM CALENDAR: None
ORAL COMMUNICATIONS: None
CONSENT CALENDAR:
1. MCA-2010-04 Municipal Code Amendment to adopt a Green Buildin Ordin
City of Cupertino
Citywide Location
Motion: Motion by Cum. Kaneda, second by Vice Chair Lee, and carried 4-1-0,
PUBLIC HEARING:
2. DIR-2010-28 Appeal of an approval of a Director's Minor Modification
Dayna Aguirre (PG&E) to allow three panel antennas and associated equipment
Appellant Shaul Berger to be installed on an existing PG&E pole. Tentative City
11371 Bubb Road Council date: December 7, 2010
Cupertino Planning Commission 2 November 9, 2010
Com. Giefer recused herself from discussion of the application as she resides within the noticing
area
Colin Jung, Senior Planner, presenter) the staff report:
Reviewed the Appeal of a Director's Minor Modification decision to allow the installation of a
personal wireless service facility, consisting of three panel antennas and associated equipment
on an existing PG&E pole in front of 11371 Bubb Road, as outlined in the staff report.
® He illustrated photo simulations showing existing conditions and the proposed cell site facility.
The appellant, Shaul Berger's eight appeal points were reviewed; details are outlined in the
staff report. The eight appeal points were (1) Project is inaccurate; (2) Federal exposure
standard cited by applicant is for an average slow -fading propagation environment; (3) An area
with 2-story homes is uphill of the project; antennas must be 100 feet for people within 500
feet; (4) Radio pollution depends on radio signal strength and exposure time; (5) Project is
located between schools and children would travel on the roads through the irradiated area; (6)
Based on experience and judgment, it is not lawful to erect a high power antenna on a low
height pole in a residential area; (7) He performed a detail calculation of the energy on the
west and south sides of the antennas and demonstrated a dangerous exposure; and (7) Offered
a recommendation that the city should install such antennas in the Cupertino hills addressing
coverage issues on Bubb Road, Regnart Road and Lindy Lane.
® He responded to the appeal points as illustrated on the Power Point presentation, and reviewed
the graph showing the typical exposure from various radio frequency/microwave sources.
He noted that Federal Law 1996 Telecommunications Act states that no state or local
government entity may regulate the placement, construction or modification of personal
wireless facilities on the basis of the environmental effects of radio frequency emissions to the
extent that such emissions comply with FCC regulations.
® Staff noted that the project is consistent with the city's Wireless Facilities Master Plan, and is
consistent with the city's Wireless Communications Facility Ordinance. The Master Plan
prefers existing vertical structures such as utility poles to mount wireless antennas to provide
cell phone coverage to residential areas. The proposed facility is consistent with Federal Law
as well as the PUC regulations set, governing the use of the power pole for these types of
facilities. Given the low power of these facilities, sites in multiple locations will be needed to
provide acceptable cell phone coverage, and one hillside site will not provide adequate
coverage that is non-existent in parts of Cupertino.
® Staff recommends that the Planning Commission deny the appeal and uphold the decision of
the Community Development Director.
Colin Jung answered Commissioners' questions.
Chair Brophy opened the public hearing.
Shaul Berger, Appellant:
s Said he was disappointed that he did not get any materials or input prior to the meeting to
better prepare for his presentation. He questioned why the applicant would not consider
locating the antenna in the hilly areas, further away from the homes. He provided justification
for his appeal to deny the application, and expressed his concern regarding the safety and
health of the residents of the area, particularly the children, relative to the effects of radiation
from the antennas.
® Said in the past there were some other areas that were considered for the antenna location, such
as the nearby 7/11. He said that the applicant's calculations were based on wrong
assumptions; and when you use the wrong assumptions, you reach wrong concl4sions.
Cupertino Planning Commission 3 November 9, 2010
® He urged the Commission to reconsider the proposal because he felt it was not well researched
and because of the long term effects on the health of the residents of the area.
Com. Miller:
• Said that the issue is that there is Federal Law that says the Commission is prohibited from
rejecting an application because of radiation issues as long as they can show they are within
the federal guideline; so it cannot be rejected simply because of safety issues unless the
appellant can show that they are not within the federal guidelines.
® if the appellant is trying to make an argument based on the technical aspects and the amount of
radiation, he has to demonstrate that the calculations are not correct and not within the federal
guidelines.
Chair Brophy:
® Reiterated that the Planning Commission under Federal Law, are subject to FCC rules, and
cannot deny a project based on radiation effects, as long as the project meets the FCC
standards.
Dayna Aguirre, Sutro Consulting for T-Mobile, applicant:
a Said they followed all the requirements per the city's ordinance.
Com. Kaneda:
® Said a comment was made that the antennas are directional and the calculations don't take that
into account.
Mark Newman, Hammett & Edison, Inc., Consulting Engineers:
® Said that relative to the specific question about the calculations, the calculation methodology is
one prescribed by the FCC and is included in the original report and their followup responses
to the questions that were raised regarding the site. It is a direct line of sight calculation which
takes into account the antenna azimuth pattern, patterned in a horizontal plane; it tapes into
account the antennas elevation plane pattern and the antennas tend to direct their energy
toward the horizon. The elevation plane pattern is very narrow, about 7 degrees in width, they
can reach the perimeter of the area they are trying to cover.
® The calculations are correct and are done in accordance with FCC methodology .and
calculations not only take into account all the technical details of the site, but the surrounding
area also. Said they have taken into account both two story buildings and also the variable
pattern of the antennas.
Chair Brophy opened the public hearing.
Dr. Willie Lu, Cupertino resident:
® Opposed to the application.
• Said he was a former FCC advisor.
• He explained how the calculations are taken, and provided information on testing in center
points and on the edge, and testing on the second story. He requested that the applicant redo
the test and provide the public with a clear opinion.
® He noted that the appellant's property was not the closest one to the antenna site and there
were other residences in the transmission area that were exposed to more danger from the
radiation exposure. He said the houses in the central area of the beam transmission area should
be tested for exposure. He suggested that if the antenna could not be relocated, that it be
placed higher on the pole at a height of 60 feet, rather than the proposed 44.6 foot height, to
reduce the risk to the residents who are in the radiation pattern.
Cupertino Planning Commission 4 November 9, 2010
Com. Miller:
® Said that if the antenna is installed and test results indicate that the energy at Mr. Berger's
second story is much greater, the city can insist that the cell phone company remove their
equipment. Presently the testing is theoretical and the only way to actually test real conditions
is to install it and go from house to house and test it.
Chair Brophy:
• The consulting engineer stated that the methodology they use is set by the FCC.
Jei Chen, Cupertino resident:
* Said be lived in close proximity to the proposed antenna location and was concerned about the
effects of the radiation exposure to the residents of the area. He asked the audience to indicate
who would want the cell tower in front of their home or in the back yard. He asked that the
Planning Commission consider not only the benefit of the cell phone tower for cell phone users
in the area, but also the negative effects it would have on the residents of the area. He said the
residents wanted to protect themselves, the seniors and their futures.
Madhu Gi, Cupertino resident:
• Expressed concern about the potential health risks to humans, particularly children.
• She asked that they keep the interests of the community in mind before the interests of the
business requesting the antenna.
Mr. Prasad, Cupertino resident:
• Said he was familiar with testing on animals and human beings. There are potential health
issues with the children going to school in the area and families living closer to the area. He
recommended that they move the antenna to a hilly region. He commented in other areas he
lived in letters were sent to community members soliciting their input; however Cupertino
does the opposite and considers an application without community input.
Paul Petach, Cupertino resident:
• Supports the application.
• Said that several other technologic items used around the home had more radio frequency in
them than the cell phone tower. The original mobile phones were 5 watts, 5,000 milowatts;
• People are exposed to microwave ovens, portable phones, auto Onstar and hands free phones
and they don't appear to be concerned; all ionizing radiation is harmful to skin. The emissions
from cell phone towers is infinitesimal. He said he lives in the hills and would welcome a
tower up there.
Chair Brophy closed the public hearing.
Valerie Armento, Asst. City Attorney:
• As indicated, the current proposal complies with the FCC requirements; and under the 1996
Telecommunications Act, the Planning Commission does not have the option to deny it based
on health concerns if it complies with the Act. Therefore, if it were to be denied without
substantial evidence that contradicts the evidence currently in the record, it would most likely
bring on litigation, and without prejudicing the city's position, it would not be likely to be
particularly successful on the part of the city.
Cupertino Planning Commission
November 9, 2010
Com. AERer:
• Said that Dr. Lu suggested raising it 9 feet which would create an additional margin of safety.
He asked the applicant if they had considered moving the antenna up in some way.
Colin Jung:
• Said he did not feel that PG&E would allow them to raise the antenna any higher than it
presently is because PG&E or the PUC requires a 10 foot safety margin between the wires,
conductors and the antenna itself and they are at that limit.
IDayna Aguirre:
• Typically the radio frequency engineers always want to be taller; given when we looked at this
facility, they wanted to get as much height on the existing pole as they could. Colin rung was
correct when he mentioned there was a geo 95 requirement as a safety zone, so that workers
have a clearance of 6 feet.
• With the particular location on the top, it is held up by a high tension line; we would have to
interrupt that line and place it somewhere else, and it would no longer be in line with the other
poles. Locating it above the high tension lines is not a workable solution; because there is no
way to mount above that node on top. She said in other cities they have done pole top
extensions, with a 6 foot extension and the antennas placed above with a ray dome for better
coverage.
Chair Brophy:
• Said that looking at calculations done according to FCC methodology, that are not only below
the maximum of allowable exposure but far below in the case of second floor, 22/100I' of I%;
there was no other issue than that, and because it was so far below, he was,not sure there was
any other option but to uphold the Director's approval.
Com. NBller:
Suggested that there be a requirement that once the equipment goes in, more detailed
measurements are taken at the houses in the area where there is potentially the highest
exposure levels and test at least twice, perhaps after a year's time. If they are not meeting the
FCC requirements, the applicant would have to remove the equipment or address the issue.
Aarti Shrivastava:
• Said that they have included such a condition on prior applications about testing, and they
could add it as a condition to the current application.
Colin Jung:
• If you are concerned about what is going to be generating once it is in operation, then you
require a post -construction radio frequency study. If there are certain measurements you want
taken, it can be specified in the conditions. The appellants are not happy with the ground level
in the second floor exposure at the closest residence. He said he was taking measurements of
the existing terrain; which given the height of the antenna and the height of the second story,
you literally have to go out 800 to 1,000 feet from the antenna location before you get a level
elevation where you are actually level with the site line of the antenna, about 800 to 1,000 feet.
Com. Kaneda:
• Asked if it was possible to make a policy to cover the requirement about testing radiation
levels after a period of time; since the cell phone antenna applications come up time and again,
and the radiation levels have come up less than 1/I Oe of 1 % of the FCC guidelines.
Cupertino Planning Commission 6 November 9, 2010.
Currently, a condition is added to each cell phone antenna application and it is a reasonable
precaution to have.
Aarti Shrivastava:
® Said they could do post -construction testing and would add the number 100 feet away also_
Com. Kaneda:
® Said the cell tower applications come up in his neighborhood regularly because of the poor cell
coverage in Cupertino which is ironic considering Apple is headquartered there.
m Said that the numbers given are based on the calculation of the worst case scenario where the
beam is strongest, calculating what distance you go beyond the allowable levels; will go below
the maximum Ievels and that is 12 feet away from the antenna. There are no houses within 12
feet and the calculation says that at the second story it is about 115001 of the allowable levels
which in fact are.below the levels that are questionable for health concerns.
® People are concerned about more radiation, electromagnetic radiation, but light is a form of
electromagnetic radiation. It is possible that we will find out in 20 years or 50 years or one
year that the RF is bad and causes cancer; but at this point decisions have to be made from the
best information available.
® He said he did not feel it was even a close call, and is so far below the allowable levels. He
said he would support the application.
Com. Miller:
a As Com. Kaneda said, these type of applications come up all the time, and they are difficult for
us, and my feeling is I want to support the community, and if the community is saying they
don't want the service the applicant is offering, that is a problem, because I want to support
what the community wants. However, federal laws are on the side of the applicant which tie
the city's hands. The only way we can reject an application here for cell tower is not for health
reasons, but on aesthetic reasons. No one has brought up any aesthetic reasons tonight.
® The community can talk to the enabling property owner; in this case PG&E, who doesn't have
any federal law against their side; they are doing it for the revenue.
• I am in the same position of having to support this even though I may not want to support it,
simply because of the federal regulations that require us to do so.
Motion: Motion by Vice Chair Lee, second by Com. Kaneda, and carried 4-0-1, Corn. Giefer
recusing herself from vote; to deny the appeal and uphold D1R-2010-28, with the
added condition that is requiring post -construction RF testing of the RF exposures
in accordance with federal safety standards after construction, and before full
operation and after one year exposures to be measured at the ground floor, the
second floor of nearest residence and 100 feet away.
Com. Giefer returned to the meeting.
Schroeder/Four Architectural and Site approval (ASA-2007-05), Exception
Corners rties to the Heart of the City Special Plan (EXC-2007-05), Tentative
(Rocktino, LLC) Map (TM-2007-08) and Tree Removal (TR-2007-03) for the
10100 Tantau Avenue ose of extending the expiration date of the approvals for
five year . tative City Council date: December 7, 2010
Alld Honda Snelling, Senior Planner, presented the staff