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TR-2010-31b _ _ __ OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 C U P E RT I N O TELEPHONE: (408) 777-3223 • FAX: (408) 777-3366 Febi-uaiy 18, 2011 Re: Petition for reconsideration of the City Council's January 4, 2011 decision to deny an appeal of a personal wireless service facility at the Results Way Office Park At its February 15, 2011 meeting, the Cupertino City Council adopted Resolution No. 11-022 denying the Petition for Reconsideration upholding Council's original decision. Please call the Cominunity Development Department at 777-3308 if you have any questions. Tlze decision by the City Council above described is fina[ effective February 1 S, 2011. The time witliin wlzicli judicial review must be souglzt is governed by �1096.6 of tlie California Code of Civil Procedure wliiclz is 90 dctys following tlze above effective date. Sincerely, �`� Grace Schmidt Deputy City Clerk encl: Resolution No. 11-022 cc: Trillium Telecom Attn. Dave Yocke 7901 Stone'ridge Dr. Ste. 503 `� Pleasanton, CA 94588 Grace Chen 10192 Imperial Ave. Cupertino, CA 95014 City Attorney Community Development RESOLUTION NO. 11-022 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO DENYlNG THE PETITION OF GRACE CHEN & GUO JIN SEEKING COUNCIL RECONSIDERATION OF ITS DECISION TO DENY AN APPEAL OF U-2010-03, EXC- 2010-04 & TR-2010-31, A USE PERMIT, HEIGHT EXCEPTION & TREE REMOVAL TO FACILITATE THE DEVELOPMENT OF A PERSONAL WIRELESS SERVICE FACILITY AT THE RESULTS WAY OFFICE PARK WHEREAS, on January 4, 2011, the Cupertino City Council received a staffreport and recommendation to deny an appeal of a Use Permit, Height Exception and Tree Removal approvals to facilitate the development of a personal wireless service facility at the Results Way Office Park. WHEREAS, the Cupertino City Council held a public hearing and at the conclusion of the hearing denied the appeal filed by Allen Wang, Grace Chen and Guo Jin on a 4-1 vote at its meeting of January 4, 2011 WHEREAS, the Cupertino City Council's decision was within its discretion and made at a properly noticed public meeting. WHEREAS Grace Chen and Guo Jin requested that the City Council reconsider its decision under the provisions of Section 2.08.096 of the City's municipal code; and WHEREAS, the City Council has considered all relevant evidence presented by the parties at all hearings, including evidence presented at the February 15, 2011 reconsideration hearing. NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS: 1. The petitioners' Reconsideration Petition is defective on its face in that it does not offer proof of facts as required by Municipal Code Section 2.08.096. 2. The petitioners have failed to offer any new evidence that there are any feasible alternative sites to the project that are less intrusive. (See Municipal Code § 2.08.096(B)(1).) Specifically, the City Council detennines that: .� a. The City Council's decision is supported by findings of fact attached as Exhibit 1. b. The fuldings of fact related to the City Council's decision were supported by substantial evidence in the record of proceedings. 3. The petitioners' Petition for Reconsideration of the City Council's decision of January 4, 2011 on itein 9 is DENIED, thereby affirming the original decision. PASSED AND ADOPTED at a regular ineeting of the City Council of the City of Cupertino this 15 day of February, 2011, by the following vote: Vote Members of the City Council AYES: Wong, Santoro, Chang, Mahoney, Wang NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: � /s/ Kimberly Smith /s/ Gilbert Wong City Clerk Mayor, City of Cupertino THIS iS �0 CEAT{FY THAT'�HE V�►�'Hll� � OF ORIGINAL QiN FlL� �iv TFiRS 6t`FI�E ATTEST - . � 3L---� 2(�-�L CIT1' CLERK OF Tt�� GI CUPER !NO ' f ,. BY ClTY CLERK EXHIBIT 1 . CITY COUNCIL FINDINGS IN RESPONSE TO PETITION FOR RECONSIDERATION Cupertino Municipal Code section 2.08.096 states: "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 pai 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 proceeding in a manner required by law; andlor 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." Original Petition 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 siulunarized below. It should be noted that three out of the four claims do not Uear any relationship to the criteria referenced above. The City's findings of fact on each of claims a.nd the criterion are delineated below. Findin�: 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 Screeni�g landscaping for the monopine Petitioners seek to add and refine needs to follow strict a�sthetic guidelines. development conditions that have already We request the addition of a condition to been adopted by the City Council the approval that the "additional screening (Attachment K) which does not relate to trees at the northern propei line" will the reconsideration criteria. Petitioners' conform to that of the approved interests are already addressed by redevelopment plans of the Results Way Council's added condition #6: "require that office parlc and any revisions or tree planting conform with the approved modifications of those plans. Landscape development plans of the results way office screening plans are unclear and should be park." In addition to #6, City Council . open for public view. 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 Petitioners seek to add new development approval requiring applicant to pay condition to City Council approval, which $30,000 to the Astoria Homeowners does not relate to the reconsideration Association for additional irrigation, trees, criteria. There are no legal grounds to add fencing and related matters connected to this condition. the visual screening of the wireless facility. We are talking to the property owners of There is no evidence or facts that relate to 10340 & 10420 Bubb Road to explore a the reconsideration criteria. The request lease for a cell site. This alternative site for continuance should be denied. The should have similar criteria as compared to applicant already evaluated 10420 Bubb the approval with less impact to residents. Road in its alternative site analysis (PC We request additional time allowance staff report). Applicant cited a lack of room and proximity to the freeway where AT&T already has coverage. Findin�: 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 The petitioners have not presented any has recently entered into leases for cell evidence that FUHSD would be willing to sites at several other high schools in the consider Monta Vista H.S. for cell sites District. More than 5 years have passed again. The 2005 City approval of a since AT&T approached FUHSD about wireless facility at Monta Vista H.S. Monta Vista High School (H.S.). Given expired in 2007, so the applicant would what has happened at other area high need to go through another public schools, AT&T should go back and check entitlement process again. A request to about antenna opportunities at Monta Vista place a wireless facility at a school site is since District criteria may have evolved. not before the Council. OFFICE OF THE CITY CLERK CITY HALL - 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 C U P E RT 1 N O TELEPHONE: (408) 777-3223 • FAX: (408) 777-3366 Januaiy 6, 2011 Re: Appeal of an approval of a wireless service facility on Results Way At its January 4 meeting, the Cupertino City made the following action: Denied the appeal, required the conditions as recommended by the Plaiuung Comnussion, and added the following conditions to the Planning Commission resolution: (1) plant additional screening trees at the northern property line to screen the treepole from the astoria townhome development; (2) require berming and plant at least two 36" box, coastal redwoods blue aptos variety on the berm on either side of the monopole to screen it; (3) improve irrigation around the trees to ensure proper growth; (4) remove and replace trees witli dead tops; (4) adequately maintain and water the trees in the parking lot; (5) re�quire an annual status report on the trees by a certified arborist for three years from the date of the tree planting; (6) require that tree planting conforin with the approved development plans of the results way office park; (7) allow a monetary cap of $75,000 for the berming and tree planting required in the added conditions. The Use Permit conditions are as foltows unless amended above: SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. � . 1. APPROVED EXHIBITS . Approval is based on Exhibits titled: "at&t/CN3242-A./November Drive/Results _ Way/Cupertino; California 95014" prepared by Jeffrey Rome �& Associates, Inc. dated 08/31/10 and consisting of seven sheets labeled T-1, A-0 through A-3, A-1.1 and C-1, except as may be amended by the conditions contained in this resolution. 2. 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, U-2010-03 January 6, 2011 2 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. 3. COLOCATION OF ANTENNAE The treepole shall be structurally designed to accommodate the collocation of additional antennae from other wireless carriers. The co-location agreement shall be at market rates with reasonable compensation to the mast owner. 4. ABANDONMENT If after installation, the aerial is not used for its permitted purpose for a continuous period of 18 months, said aerial and associated facilities shall be removed. The applicant shall bear the eritire cost of demolition. 5. EXPIRATION DATE This use permit shall expire ten (10) years after the effective date of the permit. The applicant may apply for a renewal of the use permit at which time the Planning Commission may review the state of wireless communication technologies, camouflage techniques and maintenance to determine if the visual impact of the aerial facility can be reduced. 6. TREE POLE APPEARANCE AND MAINTENANCE The applicant shall use a sufficient number of artificial branches to obscure the appearance of the panel antennae and any associated mounting framework. The top portion of the tree pole shall have branches of varying length to give the tree pole a conical form. Panel antennae mounted away from the mast shall have needle covers to blend with the green foliage of the artif cial branches. The mast shall be wrapped with a faux bark and any antenna mounted close to the mast shall be painted brown to mimic a tree trunk. The foliage shall have a � mottled green coloration. The building permit shall be reviewed and approved to the satisfaction of the Coinmunity � Developinent Director to ensure the above condition is met. The applicant shall perform . regular maintenance of the tree pole to maintain its appearance and obscure the panel antennae � from public view. - 7. EQUIPMENT ENCLOSURE " - The base equipment enclosure shall be constructed of high qualiiy materials and/or be screened by appropriate landscaping as determined by the Director of Community Development. The final enclosure design, wall treatment/color and screening strategy shall be reviewed and approved by the Director of Community Development prior to issuance of building permits. . � 8. TREE REPLACEMENT The removed trees are to be replaced with three (3) 24" box Coastal Redwoods in the northwest coiner of the property. Final locations shall be reviewed and approved by the U-2010-03 January 6, 2011 . 3 Director of Community Developinent prior to issuance of building permits. Applicant shall provide a letter from a landscape architect, certifying that the newly planted trees are in good health and the irrigation system is operating properly to maintain the trees. In addition, the final landscaping plan shall conf'irm that the existing irrigation systems are operating properly in order to service the existing and new trees in the area. 9. TESTING OF R.ADIO FREQUENCY (RF) LEVELS Radio frequency levels will be monitored and tested annually for a period of three (3) years from the date of the final occupancy approval. The result of these tests will be made available to the Planning Department and the FCC for review. The City reserves the right to perform code enforcement actions and/or revoke this use permit if the results show RF levels inconsistent with the federal standards. Please review conditions carefully. If you have any questions regarding the conditions of approval, please contact the Department of Community Development at 408-777-3308 for clarification. Failure to incorporate conditions into your plan set will result in delays at the plan checking stage. If development conditions require tree preservations, do not clear the site until required tree protection devices are installed. Tlie conditions of project approval set fortl: lierein may i�zclude certain fees, dedication require»zents, reservatioiz requi�•ements, and otlzer exactio�zs. Pursumzt to Government Code Sectio�z 66020(d)(1), tlzese conditions constitute written notice of a statement of tlze amount of sucli fees, and a description of tlze dedications, reservations, a�zd otlier exactions. You are Itereby fui•tlzer �iotified tlzat tlze 90-day approval period in whiclz you may protest these fees, dedications, and other exactions, pursuant to Government Code Section 66020(a), Izas begun. If you fail to file a protest witlzin tlzis 90-day period complying with all of ilze requirements of Section 66020, you will be legal[y barred from later clzallenging sucJz exactions. Any interested person, including tlie applicant, prior to seeking judicial review of tlze City Council's decision iiz tlzis matter, must first file a Petition for Reconsideration wit/i tl:e City Clerk within te�z days afteY the mailing of the notice of t/ze Council's decision. Any petition so � filed must co�nply with Municipal Ordinance code �2.08.096. Sincerely, , _ \� - `� - _ Grace Schmidt Deputy City Clerk cc: Community Development Trillium Telecom Allen Wang, Grace Chen, Guo Jin Attn. Scott Longhurst 10170 Iinperial Avenue 7901 Stoneridge Drive, Suite 503 Cupertino, CA 95014 Pleasanton, CA 94588 / City of Cupertino , , , 10300 Torre Avenue Cupertino, CA 95014 (408) 777-3251 C U P E�tT 1 N O FAX (408) 777-3333 Community Development Department September 16, 2010 Dave Yocke Trillium Telecom 7901 Stoneridge Dr., Suite 503 Pleasanton, Ca, 94588 SUBJECT: PLANNING COMMISSION ACTIC)N LETTER - U-2olo-03, EXC-2o10-04 TR-2010-31 This letter confirms the decision of the P: anning Commission, given at the meeting of September 14, 2010, approving a Use Permit to allow the construction of a personal wireless service facility, consisting of a 74-foot tall mor opine with twelve panel antennas and associated base equipment; approving a height exceptioti to allow antennas to be mounted on a monopine at a height of about 67 feet or less; approving t1e removal and replacement of up to four Coastal Redwood trees associated with the installatio�i of a proposed personal wireless service facility, located at the Results Way office complex, accc�rding to Plannulg Commission Resolution No.(s) 6604, 6605 and 6606. Please be aware that if this Permit is not u:.ed within a two-year period, it shall expire on September 14, 2012. Also, please note that an appeal of this decisic�n can be made within 14 calendar days from the date of this decision. If this happens, you will be notified of a public hearing, which will be scheduled before the City Council. Sincerely, � � � - colin Jung Senior Planner Planning Department Enclosures: Resolution 6604, 6605, 6606 CC: ECI Two Results, LLC, 1301 Shoreway Rd, Suite 2�0, Belmont, CA 94402 Allen Wong, 10170 imperial Avenue, Cupertino, C�. 95014 g:/pLanning/post hearing/actionletterU-2010-03,EXC-2010-04,TR-2L 10-31 TR-2010-31 CITY OF :�UPERTINO 10300 Tc�rre Avenue Cupertino, C;alifornia 95014 RESOLUT [ON NO. 6606 OF THE PLANNING COMMISSION Ol� THE CITY OF CUPERTINO APPROVING THE REMOVAL AND REPLACEMEN", OF UP TO FOUR COASTAL REDWOODS ASSOCIATED WITH THE INSTALLATIC>N OF A PROPOSED PERSONAL WIRELESS SERVICE FACILITY AT THE RESULTS WAY OFFICE COMPLEX SECTION I: PROTECT DESCRIPTION Application No.: TR-2010-31 Applicant: Dave Yocke (AT&T N oUility) Location: Results Way SECTION II: FINDINGS WHEREAS, the Planning Commission of the City of Cupertino received an application to approve the removal of four Coastal Redwoods that are by an approved development plan considered protected trees subject to Chapter 14.18, the Protected Tree Ordinance of the City of Cupertino; and WHEREAS, the necessary puUlic notices have been given in accordance with the Procedural Ordinance of the City of CupE rtino, and the Planning Commission has held one or more public hearings on this matte:•; and NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of maps, f.acts, exhibits, testimony and other evidence submitted in this matter, the Planning Carnmission finds: 1. That the aforementioned trees are i:l conflict with the development proposal; 2. That the application for Tree Rem��val, file no. TR-2010-31, is hereby approved; and 3. That the subconclusions upon which the findings and conditions specified in this Resolution are based and containe�� in the Public Hearing record, as set forth in the Minutes of the Planning Corr�mission Meeting of September 14, 2010 are incorporated bv reference herein. Resolution No. 6606 TR-2010-08 Apri113, 2010 Page 2 SECTION ITI: CONDITIONS ADMINIST��RED BY THE COMMUNITY DEVELOPMENT DEPT. 1. APPROVAL ACTION Approval is based on Exhibits titled: "at&t/ CN3242-A/ November Drive/ Results Way/Cupertino, California 95014" p�epared by Jeffrey Rome & Associates, Inc. dated 08/31/10 and consisting of sev:n sheets labeled T-1, A-0 through A-3, A-1.1 and G1, except as may be amended by the conditions contained in this resolution. 2. TREE REMOVAL & REPLACEMENT The removed tre�s �rc to Ue replaced with three 24" box Coastal Redwoods in the northc��est corner of the property. Fir al locations shall be reviewed and approved by the Director of Community Develo��ment. Applicant shall provide a letter from a landsc�pe architect, certifying that thE� newly planted trees are in good health and the irrigati�n systern is oper�ting prop��rly to maintain the trees. 3. NOTICr Or F�ES, DEDICATIONS, RF;SERVATIONS OR OTHER EXACTIONS The Conditions of Project Approval set forth herein may include certain fees, dedication requirements, reservation rf�quirements, and other exactions. Pursuant to Gover��inent Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the �mount of such fees, �nd a description of the dedications, reser��ations, and other exactions. You are hereby further notified that the 90-day appro��al period in wl1ic11 you may prc�test these fees, dedications, reservations, and other ex�ctions, pursuant to Governm�nt Code Section 66020(a), has begun. If you fail to file � protest within this 90-day ��eriod complying with all of the requirements of Section 66020, you will Ue legally ba:-red from later challenging such exactions. PASSED AND ADOPTED t11is 14th day oi SeptemUer 2010, at a Regular Meeting of the Planning Cominission of t11e City of Cupertino, State of California, by the following roll call vote: AYES: COM iViTSSI ONERS: Chair Br ophy, Vice Chair Lee, Giefer, Kaneda NOES: COMMISSIONERS: Miller ABSTAIN: COMMISSIONERS: None ABSENT: CO��N1ISSlONERS: None ATTEST: APPROVED: �s/Aarti Shrivastav� ,s/Paul Brophy Aarti Shriv�stava, Director Paul Brophy, Chair Community Devclopm���t Department Pl�nning Commission • � `/ � � i � � �. _ _