PC Reso 6953RESOLUTION NO. 6953
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
DENYING AN APPEAL AND UPHOLDING THE DIRECTOR OF
COMMUNITY DEVELOPMENT’S APPROVAL OF A TWO‐STORY PERMIT
TO ALLOW A NEW 3,233 SF HOME WITH A 797 SF ATTACHED
ACCESSORY DWELLING UNIT LOCATED AT 6522 CLIFFORD DRIVE
SECTION I: PROJECT DESCRIPTION
Application No.: R‐2021‐023
Applicant: Kyle Chan (Architect) and
Dung N. Do & Wen Hsiu Hung (Owner)
Appellants: Sanjiv Kapil
Location: 6522 Clifford Drive (APN: 369‐24‐0374)
SECTION II: FINDINGS FOR A TWO‐STORY PERMIT:
WHEREAS, the City of Cupertino received an application for a Two‐Story Permit to allow
the construction of a new 3,233 square‐foot two‐story home with a 797 square‐foot
attached accessory dwelling unit; and
WHEREAS, the project is determined to be categorically exempt from the California
Environmental Quality Act (CEQA) pursuant to Section 15303 of the CEQA Guidelines;
and
WHEREAS, the necessary notices were given and the comment period for the application
was provided as required by the Procedural Ordinance of the City of Cupertino; and
WHEREAS, the Director of Community Development made the findings required under
Section 19.28.140(B) and approved the application with conditions on January 31, 2022;
and
WHEREAS, the notice of decision was mailed to the appropriate parties, including the
applicant and any person who contacted City staff with comments during the comment
period, notifying them about the possibility of appealing a project; and
Resolution No. 6953
Page 2
R-2021-023 June 14, 2022
WHEREAS, the Planning Commission of the City of Cupertino received one appeal of
the Community Development Director’s approval of the Two‐Story Permit; and
WHEREAS, the necessary public notices have been given as required by the Procedural
Ordinance of the City of Cupertino, and the Planning Commission has held at least one
public hearing in regard to the appeal; and
WHEREAS, the appellants have not met the burden of proof required to support said
appeal; and
WHEREAS, the Planning Commission finds as follows with regard to this application:
1. The project is consistent with the Cupertino General Plan, any applicable specific
plans, zoning ordinance, and the purposes of the R‐1 Ordinance; and
The proposed project is consistent with the General Plan as the project is within the Low
Density land use area. There are no applicable specific plans that affect the project. The
project has been found to be consistent with the requirements of Cupertino Municipal Code
Chapter 19.28 Single Family (R‐1) Residential.
2. The granting of the permit will not result in a condition that is detrimental or
injurious to property or improvements in the vicinity, and will not be detrimental
to the public health, safety, or welfare; and
The granting of the permit will not result in a condition that is detrimental or injurious to
property improvements in the vicinity, and will not be detrimental to the public health, safety
or welfare as the project is located within the R1‐6 (Single Family Residential) zoning
district, and will be compatible with the surrounding uses of the neighborhood. The project
meets the building development regulations of the R‐1 Ordinance and complies with the
privacy protection measures to ensure that visual impacts to adjacent neighbors are
mitigated.
3. The project is harmonious in scale and design with the general neighborhood; and
The proposed project is located in a residential area consisting of single‐family homes. The
subject neighborhood contains a mix of single‐story and two‐story homes, making the
proposed project compatible with the neighborhood. The proposed 3,223 sq. ft. two‐story
residence is comparable in size to the existing residences in the surrounding area and
complies with the R‐1 Ordinance regulations for floor area ratio. Additionally, the project
complies with all other development regulations for R1‐6 zoned properties regarding mass
and bulk, including, but not limited to, first floor building envelope, minimum setback
regulations, and building height limitations. Furthermore, the applicant proposes a design
that is found to be harmonious in scale and design with the neighborhood, in that, the
Resolution No. 6953
Page 3
R-2021-023 June 14, 2022
architectural features, change in materials, and symmetry of window treatments were
considered for the home design which reduces the overall bulk and massing to the street
frontage of the corner lot. Staff is able to make the finding that the proposed project maintains
the single‐family home scale found compatible with the general neighborhood.
4. Adverse visual impacts on adjoining properties have been reasonably mitigated.
Any potential adverse visual impacts on adjoining properties have been reasonably mitigated
through adherence to the setback requirements and privacy protection measures of the R‐1
Ordinance. The proposal for 6522 Clifford Drive meets, and in some cases exceeds, all setback
requirements for the R1‐6 zoning district. The project proposes a first‐floor rear‐yard setback
of 36’‐7” where only 20’ is required and a second‐story rear‐yard setback of 46’‐6.5”where
25’ is required.
The R‐1 Ordinance allows property owners the ability to construct second‐story windows as
long as privacy protection trees and/or shrubs are planted as required by the ordinance. The
project complies with the privacy screening requirements of the R‐1 Ordinance by providing
privacy screening plantings for the second‐story windows with a sill height below 5 feet
along the rear (southern) property line and left (eastern) property lines. Per the R‐1
Ordinance, the objective of privacy protection plantings is to provide substantial screening
within three years of planting. Privacy protection plantings are considered Protected Trees
under the City’s Municipal Code (Chapter 14.18) and are recorded as such with a covenant
against the property to inform current and future property owners about their protected
status. Protected trees are not permitted to be removed without obtaining a tree removal
permit and providing replacement plantings.
WHEREAS, the Planning Commission is the approval authority for this project and is
granted the authority by the Municipal Code to exercise its independent judgment, based
on the record before it, for purposes of the California Environmental Quality Act; and
NOW, THEREFORE, BE IT RESOLVED that the Planning Commission takes the
following actions:
1. Exercises its independent judgment and determines that the Project is exempt from
CEQA pursuant to CEQA Guidelines section 15303. The Class 3 exemption applies to
new construction of small structures, including a single‐family residence, or a second‐
dwelling unit in a residential zone.
2. Denies the appeal of an application for a Two‐Story Permit, Application no., R‐2021‐
023, and upholds the Administrative approval of the Two Story Permit subject to the
Resolution No. 6953
Page 4
R-2021-023 June 14, 2022
conditions which are enumerated in this Resolution beginning on PAGE 4 thereof. The
conclusions and sub conclusions upon which the findings and conditions specified in this
resolution are based, including those contained in the Public Hearing record concerning
Application no. R‐2021‐023 as set forth in the Minutes of Planning Commission Meeting
of June 14, 2022, are hereby incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPARTMENT
1. APPROVED EXHIBITS
The approval is based on a plan set entitled “6522 Clifford Drive”, consisting of 21
sheets labeled “Boundary and Topographic Survey, A0.1, A0.5, A1.1, A2.1, A2.2, A3.1,
A3.2, A8.0, C1, C2, C3, C4, C5, C6, C7, L0.0, L1.0, L2.0, L3.0, and L4.0” except as may
be amended by conditions in this resolution.
2. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
building plans.
3. ACCURACY OF THE PROJECT 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 property data may invalidate this approval and may
require additional review.
4. COMPLIANCE WITH PUBLIC WORKS CONFIRMATION FORM
The project shall comply with the requirements indicated on the Public Works
Confirmation form dated February 19, 2015, and updated on May 13, 2021, including,
but not limited to, dedications, easements, off‐site improvements, undergrounding of
utilities, all necessary agreements, and utility installations/relocations as deemed
necessary by the Director of Public Works and required for public health and safety.
The Public Works Confirmation is a preliminary review and is not an exhaustive
review of the subject development. Additional requirements may be established and
implemented during the construction permitting process. The project construction
plans shall address these requirements with the construction permit submittal, and
all required improvements shall be completed to the satisfaction of the Director of
Public Works prior to final occupancy.
Resolution No. 6953
Page 5
R-2021-023 June 14, 2022
5. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with 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. DEMOLITION REQUIREMENTS
All demolished building and site materials shall be recycled to the maximum extent
feasible subject to the Building Official. The applicant shall provide evidence that
materials were recycled prior to issuance of final demolition permits.
7. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS
a. All grading activities shall be limited to the dry season (April 15 to October 1),
unless permitted otherwise by the Director of Public works.
b. Construction hours and noise limits shall be compliant with all requirements of
Chapter 10.48 of the Cupertino Municipal Code.
c. Grading, street construction, underground utility and demolition hours for work
done more than 750 feet away from residential areas shall be limited to Monday
through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to 6 p.m.
Grading, street construction, demolition or underground utility work within 750
feet of residential areas shall not occur on Saturdays, Sundays, holidays, and
during the nighttime period as defined in Section 10.48.053(b) of the Municipal
Code.
d. Construction activities shall be limited to Monday through Friday, 7 a.m. to 8 p.m.
and Saturday and Sunday, 9 a.m. to 6 p.m. Construction activities are not allowed
on holidays as defined in Chapter 10.48 of the Municipal Code. Night time
construction is allowed if compliant with nighttime standards of Section 10.48 of
the Cupertino Municipal Code.
e. Rules and regulations pertaining to all construction activities and limitations
identified in this permit, along with the name and telephone number of an
applicant appointed disturbance coordinator, shall be posted in a prominent
location at the entrance to the job site.
f. The applicant shall be responsible for educating all contractors and
subcontractors of said construction restrictions.
The applicant shall comply with the above grading and construction hours and noise
limit requirements unless otherwise indicated
Resolution No. 6953
Page 6
R-2021-023 June 14, 2022
8. DUST CONTROL
The following construction practices shall be implemented during all phases of
construction for the proposed project to prevent visible dust emissions from leaving
the site:
a) Water all exposed surfaces areas (e.g., parking areas, staging areas, soil piles,
graded areas, and unpaved access roads) at least twice daily and more often
during windy periods to prevent visible dust from leaving the site; active areas
adjacent to windy periods; active areas adjacent to existing land uses shall be kept
damp at all times, or shall be treated with non‐toxic stabilizers or dust palliatives.
b) All haul trucks transporting soil, sand, or other loose material off‐site shall be
covered.
c) All visible mud or dirt track‐out onto adjacent public roads shall be removed using
wet power vacuum street sweepers at least once per day. The use of dry power
sweeping is prohibited.
d) All vehicle speeds on unpaved roads shall be limited to 15 mph.
e) All roadways, driveways, and sidewalks to be paved shall be completed as soon
as possible. Building pads shall be laid as soon as possible after grading unless
seeding or soil binders are used.
f) Idling times shall be minimized either by shutting equipment off when not in use
or reducing the maximum idling time to 5 minutes (as required by the California
airborne toxics control measure Title 13, Section 2485 of California Code of
Regulations [CCR]). Clear signage shall be provided for construction workers at
all access points.
g) All construction equipment shall be maintained and properly tuned in accordance
with manufacturer’s specifications. All equipment shall be checked by a certified
mechanic and determined to be running in proper condition prior to operation.
h) Post a publicly visible sign with the telephone number and person to contact at the
Lead Agency regarding dust complaints. This person shall respond and take
corrective action within 48 hours. The Air District’s phone number shall also be
visible to ensure compliance with applicable regulations.
i) The applicant shall incorporate the City’s construction best management practices
into the building permit plan set.
9. NESTING BIRDS
Nests of raptors and other birds shall be protected when in active use, as required by
the federal Migratory Bird Treaty Act and the California Department of Fish and
Game Code.
a. Construction and tree removal/pruning activities shall be scheduled to
avoid the nesting season to the extent feasible. If feasible, tree removal
and/or pruning shall be completed before the start of the nesting season to
Resolution No. 6953
Page 7
R-2021-023 June 14, 2022
help preclude nesting. The nesting season for most birds and raptors in the
San Francisco Bay area extends from February 1 through August 31.
Preconstruction surveys (described below) are not required for tree
removal or construction activities outside the nesting period.
b. If construction activities and any required tree removal occur during the
nesting season (February 1 and August 31), a qualified ornithologist shall
be required to conduct surveys prior to tree removal or construction
activities. Preconstruction surveys shall be conducted no more than 14 days
prior to the start of tree removal, pruning or construction. Preconstruction
surveys shall be repeated at 14‐day intervals until construction has been
initiated in the area after which surveys can be stopped. During this survey,
the ornithologist shall inspect all trees and other possible nesting habitats
in and immediately adjacent to the construction areas for nests.
c. If the survey does not identify any nesting birds that would be affected by
construction activities, no further mitigation is required. If an active nest
containing viable eggs or young birds is found sufficiently close to work
areas to be disturbed by these activities, their locations shall be documented
and protective measures implemented under the direction of the qualified
ornithologist until the nests no longer contain eggs or young birds.
d. Protective measures shall include establishment of clearly delineated
exclusion zones (i.e. demarcated by identifiable fencing, such as orange
construction fencing or equivalent) around each nest location as
determined by the qualified ornithologist, taking into account the species
of birds nesting, their tolerance for disturbance and proximity to existing
development. In general, exclusion zones shall be a minimum of 300 feet
for raptors and 75 feet for passerines and other birds. The active nest within
an exclusion zone shall be monitored on a weekly basis throughout the
nesting season to identify signs of disturbance and confirm nesting status.
The radius of an exclusion zone may be increased by the qualified biologist,
if project activities are determined to be adversely affecting the nesting
birds. Exclusion zones may be reduced by the qualified biologist only in
consultation with California Department of Fish and Wildlife. The
protection measures and buffers shall remain in effect until the young have
left the nest and are foraging independently or the nest is no longer active.
e. A final report on nesting birds and raptors, including survey methodology,
survey date(s), map of identified active nests (if any), and protection
measures (if required), shall be submitted to the Planning Manager,
through the building permit review process, and be completed to the
satisfaction of the Community Development Director prior to the start of
grading.
Resolution No. 6953
Page 8
R-2021-023 June 14, 2022
10. BIRD SAFE COMPLIANCE
Prior to issuance of Building Permits, the applicant/property owner shall submit final
plans in compliance with the approved plans to comply with development standards
of Cupertino Municipal Code Section 19.102.030 Bird‐Safe Development
Requirements. In the event changes are proposed from the approved plans, said
changes must be reviewed and approved by the Director of Community Development
or their designee. The applicant shall provide all necessary documentation required
to determine compliance with the Municipal Code.
11. UNITS APPROVED
One 3,233 sq. ft. replacement single family home (44.3% FAR) and one 797 sq. ft.
attached accessory dwelling unit has been approved. A covenant shall be recorded
prior to final occupancy to ensure that there shall be no internal connection between
the accessory dwelling unit and the principal dwelling unit throughout the lifetime of
the home, nor shall the accessory dwelling unit ever be allowed to converted to be
part of the principal dwelling unit.
12. EXTERIOR BUILDING MATERIALS/TREATMENTS
The final building exterior plan shall closely resemble the details shown on the
original approved plans. Final building exterior treatment plan (including but not
limited to details on exterior color, materials, architectural treatments, doors,
windows, lighting fixtures, and/or embellishments) shall be reviewed and approved
by the Director of Community Development prior to issuance of building permits to
ensure quality and consistency. Any exterior changes determined to be substantial
by the Director of Community Development shall either require a modification to this
permit or a new permit based on the extent of the change.
13. ACCESORY BUILDINGS/STRUCTURES
The location of all existing and proposed accessory buildings and/or structures shall
be indicated on building permit plans and shall comply with Chapter 19.100,
Accessory Buildings/Structures, of the Cupertino Municipal Code for review and
approval prior to issuance of building permits.
14. ATTIC SPACE
All proposed attic space shall be non‐habitable space. The applicant shall provide
drawings prior to building permit issuance demonstrating all proposed attic spaces
meet this requirement.
Resolution No. 6953
Page 9
R-2021-023 June 14, 2022
15. DARK SKY COMPLIANCE
Prior to issuance of Building Permits, the applicant/property owner shall submit final
plans in compliance with the approved lighting plans to comply with development
standards of Cupertino Municipal Code Section 19.102.040 Outdoor Lighting
Requirements. In the event changes are proposed from the approved plans, said
changes must be reviewed and approved by the Director of Community Development
or their designee. The applicant shall provide all documentation required to
determine compliance with the Municipal Code.
16. MODIFICATIONS TO WINDOWS ON RIGHT SIDE (NORTHWEST) ELEVATION
The project applicant shall maintain the two windows on the right (northwest) side
elevation to be as frosted glazing to further mitigate privacy impacts to adjacent
property owners as agreed upon between the applicant and neighbor. Prior to
issuance of Building Permits, the applicant shall provide an updated elevation sheet
that shows the frosted glass material used for the proposed windows and shall be
consistent with the door/window schedule during plan review of the Building Permit.
17. FENCES
The location of all fences on the site shall be indicated on building permit plans,
comply with Chapter 19.48, Fences, of the Cupertino Municipal Code, and must be
reviewed and approved prior to issuance of building permits.
18. LANDSCAPE PROJECT SUBMITTAL
Prior to issuance of building permits, the applicant shall submit a full Landscape
Documentation Package, per sections 14.15.050 A, B, C, and D of the Landscape
Ordinance, for projects with landscape area 500 square feet or more or elect to submit
a Prescriptive Compliance Application per sections 14.15.040 A, B, and C for projects
with landscape area between 500 square feet and 2,500 square feet. The Landscape
Documentation Package or Prescriptive Compliance Application shall be reviewed
and approved to the satisfaction of the Director of Community Development prior to
issuance of building permits, and additional requirements per sections 14.15.040 D, E,
F, and G or 14.15.050 E, F, G, H, and I will be required to be reviewed and approved
prior to final inspections.
19. PRIVACY PLANTING
The final privacy planting plan shall be reviewed and approved by the Planning
Division prior to issuance of building permits. The variety, size, and planting distance
shall be consistent with the City’s requirements.
Resolution No. 6953
Page 10
R-2021-023 June 14, 2022
20. PRIVACY PROTECTION COVENANT
The property owner shall record a covenant on this property to inform future
property owners of the privacy protection measures and tree protection requirements
consistent with the R‐1 Ordinance, for all windows with views into neighboring yards
and a sill height that is 5 feet or less from the second story finished floor. The precise
language will be subject to approval by the Director of Community Development.
Proof of recordation must be submitted to the Community Development Department
prior to final occupancy of the residence.
21. FRONT YARD TREE
The applicant shall indicate on site and landscape plans the location of a front yard
tree to be located within the front yard setback area in order to screen the massing of
the second story. The front yard tree shall be a minimum 24‐inch box and 6 feet
planted height and otherwise be consistent with the City’s requirements.
22. FRONT YARD TREE COVENANT
The property owner shall record a covenant on this property with the Santa Clara
County Recorder’s Office that requires the retention and maintenance of the required
front yard tree. The precise language will be subject to approval by the Director of
Community Development. Proof of recordation must be submitted to the
Community Development Department prior to final occupancy of the residence.
23. 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
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
Resolution No. 6953
Page 11
R-2021-023 June 14, 2022
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.
24. 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
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.
25. 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.
PASSED AND ADOPTED this 14th day of June, 2022 at a noticed Public Hearing of the
Planning Commission of the City of Cupertino, State of California, held by the Director
of Community Development, or his or her designee, pursuant to Cupertino Municipal
Code Section 19.12.120.
Resolution No. 6953
Page 12
R-2021-023 June 14, 2022
AYES: COMMISSIONERS: Scharf, Madhdhipatla, Saxena, Wang
NOES: COMMISSIONERS: None
ABSTAIN: COMMISSIONERS: Kapil
ABSENT: COMISSIONERS: None
ATTEST: APPROVED:
Piu Ghosh Steven Scharf
Planning Manager Chair, Planning Commission