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PC 01-08-01CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 (408) 777-3308 APPROVED MINUTES OF THE REGULAR MEETING OF THE PLANNING COMMISSION HELD ON JANUARY 8, 2001 SALUTE TO THE FLAG ROLL CALL Commissioners present: Corr, Doyle, Kwok, Stevens, Chairperson Harris Staff present: Steve Piasecki, Director of Community Development; Ciddy Wordell, City Planner; Colin Jung, Senior Planner; Vera Gil, Senior Planner; Peter Gilli, Associate Planner; Eileen Murray, Assistant City Attorney APPROVAL OF MINUTES: 1. Minutes of the Regular Planning Commission Meeting of December 11, 2000 MOTION: SECOND: VOTE: Com. Stevens moved to approve the December 1 I, 2000 minutes as presented Com. Corr Passed 5-0-0 Minutes of the Special Planning Commission Meeting of December 18, 2000 Chair Harris noted corrections to the December 18, 2000 minutes: Page 6, second paragraph: line 1: "lot sizes" should read: "small lot sizes (PD Residential)" Page 7, first line: "will go for" should read: "will go from" Page 7, second line: delete "the plan is 85% drawn up" and replace with "the city is 85% developed" Page 9, Report of Planning Commission: Correct spelling of the Parks and Recreation Director is "Therese". MOTION: SECOND: VOTE: Com. Doyle moved to approve the December 18, 2000 minutes as amended. Com. Corr Passed 5-0-0 Chair Harris said she would review the November 1, 2000 special meeting minutes for corrections and submit them for approval at a later meeting. WRITTEN COMMUNICATIONS: Chair Harris noted communicatiou received regarding an invitation to submit a presentation at the upcoming Railvolution conference in the Fall. Planning Commission Minutes 2 January 8, 2001 POSTPONEMENTS/REMOVAL FROM CALENDAR Application No.: Applicant: Location: 05-TM-00 Pinn Brothers 19979-19999 Stevens Creek Blvd. Tentative map to subdivide a parcel into two lots for an approved planned development; one lot for the residential use (46 condominium units) and one for the retail/office use. Planning Commission decision final unless appealed Request continuance to Planning Commission meeting of January 22, 2001 MOTION: SECOND: VOTE: Com. Doyle moved to postpone Application 05-TM-00 to the January 22, 2001 Planning Commission meeting Com. Kwok Passed 5-0-0 ORAL COMMUNICATION: None Application No,: Applicant: Location: 08-DIR-00 Mingshiang Wang .10300 Phar Lap Drive Director's referral of an application to remove an oak tree on a single family residential lot. Continued from Planning Commission meeting of December 11, 2000 Staff presentation: Mr. Peter Gilli, Associate Planner, reviewed the background of the item which was presented to the Planning Commission previously in December. He noted that the applicant had been unable to secure insurance for the home because of the tree. He also reviewed information from the arborist which indicated that the tree contained a cavity which in time would destabilize the tree. The arborist was not recommending removal of the tree for health reasons alone, but reported that over time the tree would likely be destabilized because of the limb cavity. Staff recommends removal of the tree based on the high probability that if the tree failed, it would fall into the house; and also because the applicant is unable to secure homeowner's insurance because of the tree. Mr. Mingshiang Wang, applicant, said that he recently purchased the home and following a site visit from the insurance underwriter, was unable to secure homeowner's insurance because ot' the tree. He explained that the previous owner most likely secured insurance when the tree was a smaller size, and said the underwriter does not make annual site visits upon renewal of the insurance, only when a new policy is applied for; hence would not be aware of the tree growth. Mr. Wang answered questions, and noted that if the section of the tree overhanging the house was cut off, the tree would die, because of its large size. Chair Harris opened the meeting for public input; there was no one present who wished to speak. Com. Corr commented on the large number of requests to remove trees from properties where tile trees existed before the homes were built on the property, noting that if the house had been built correctly in the first place, the tree problems would not exist. Planning Commission Minutes 3 January 8, 2001 MOTION: SECOND: Com. Corr moved to approve Application 08-DIR-00 Com. Kwok Com. Doyle said the compelling argument was that there was proof that the homeowner could not secure insurance based upon the tree in its present condition, and that it may fail in the future, and said it may be of some importance, but was not the reason for removing the tree. He said if it is clearly documented and there are no other options, which in some cases would be the tree removal, which is the precedent vs. the damaged tree issue. Com. Stevens concurred that they were responding to an insurance company, and said that although it may not always be correct, homeowners must have insurance. He expressed concern that a non-arborist determined the fate of the tree. Chair Harris said she felt trees added character to Cupertino, and should be guarded when possible. However, she said she felt in this case, they had no choice. VOTE: Passed 5-0-0 o Application No.(s): Applicant: Location: 06-U-97(M) Mr. and Mrs. Kirk Law 23595 Oak Valley Road Use permit modification to remove a eucalyptus tree protected as part of the O'Brien Group (Oak Valley) development. Planning Commission decision final unless appealed Staff presentation: The video presentation reviewed the application to remove a 48 inch diameter eucalyptus tree from a single family residential property. The tree roots have received a significant amount of root cutting as a result of nearby construction, making the root structure weak. Staff supports removal of the tree since they feel it is likely to fall during a heavy storm because of the damaged roots. Staff recommends planting three 48 inch boxed coast live oak trees. Planning Commission decision is final unless appealed. Ms. Vera Gil, Senior Planner, said that the tree was bonded under the original Oak Valley Development from the O'Brien Group; however, the O'Brien Group approved the addition based upon a recommendation from the applicant's arborist, that the tree would not be harmed during thc construction of the bonus room. Staff feels the applicant should be held responsible for the damage to the tree, not the O'Brien Group, since considerable damage was done to the root structure during construction. Ms. Gil clarified that the original design of the home included a bonus room; however, the O'Brien Group elected not to include the bonus room because proximity of the existing tree. The applicant purchased the home knowing the O'Brien Group would not build the bonus room, and then petitioned to have the room added to their home. Mr. Kirk Law and Mrs. Sheray Law, applicants, said that because the original bonus room design interfered with the existing tree, they hired an architect to construct a bonus rotan in a different location. He said that a root was cut during the grading for the foundation. Mr. Law explained the process they followed for the approval of the construction of the bonus room, mad the protection measures taken during construction. Planning Commission Minutes 4 January 8, 2001 Chair Harris opened the meeting for public input; there was no one present who wished to speak. Com. Kwok said he was not comfortable with the situation, since thearborist indicated before the construction of the bonus room, that construction would be of no consequence to the tree; and the result was that the tree was damaged during construction. The applicant now requests that the tree be removed because of the damage. He emphasized the length of ti~ne for a tree to grow; yet the short time span for tree .damage. He said the tree represents the character of the community, and he supported use of the bond for mitigation or tree planting in the neighborhood. Com. Kwok said that he did not support staff's recommendation for removal of the tree. Com. Doyle said he felt the applicant followed the appropriate steps for the addition of the bonus room, and relied upon the arborist's opinion relative to the status of the eucalyptus tree. He said he felt the arborist should be liable since they indicated that the construction of the bonus room would not harm the existing tree. Chair Harris said that eucalyptus trees are shallow rooted, and said that it should have been obvious to the arborist that the natural grade had been changed since the tree was sitting on a three foot mound in a circle. The O'Brien Group approved the petition to have the bonus room constructed after refusing to construct it themselves as part of the original house plan, and thc O'Brien Group arborist said that it should not be built. The O'Brien Gronp posted a boud and should be held accountable for the three tee replacement. Com. Corr questioned who would be liable if the application was denied and the tree fell. Ms. Eileen Murray, Assistant City Counsel, said that a Planning Commission denial could be appealed to the City Council. She said that there were several statutes limiting the Planning Commission's responsibility and governments are exempt from liability under several statutes. She said the property owner has accepted responsibility for building the addition and for the tree damage; the question remains whether they can remove the tree. She said that the Planning Commission would likely have some immunity. Com. Stevens said that a bond exists, the O'Brien group approved the addition of the bonus room; and the Planning Commission must consider if the tree poses a safety risk to the public. He said he felt for the future, the Planning Commission needs to further address the actions resulting in the need for review. Chair Harris said that unless there is a disincentive involved, no end could be in sight. The Assistant City Attorney could look at the original bond from the O'Brien Group to see if it conld be used; the object being to save the trees that were saved on the site. Com. Kwok said that steps should be taken to prevent the issue from occurring again in the i'uture, particularly with the larger developments. He said he felt the tree should be protected. Chair Harris questioned whether approval of the tree removal could be recommended with replacement with the three 48 inch boxed coast live oak trees; and counsel ascertain whether the developer, not the property owner, be held liable. Planning Commission Minutes 5 January 8, 2001 Ms. Murray suggested that if approval was granted, the approval be given based on the application as it stands, but that counsel review the conditions and the bonding for future instances to ascertain how far the bond can be extended. Mr. Steve Piasecki, Community Development Director, clarified that if there was any opportunity with the bonding to stem any future action on the part of the O'Brien Group, counsel will investigate the issue, and hopefully there would not be repeated incidents. Com. Kwok said that consideration should be given to pulling the bonds and putting money into reserves for planting more trees in the neighborhood. O'Brien Group should be held responsible and accountable; and there should be some commitment from them to plant more trees in the area. MOTION: SECOND: Com. Kwok moved to continue Application 06-U-97(M) to the February 5,2001 Planning Commission meeting Com. Corr In response to Com. Stevens' question about the possibility of imminent danger, Mr. Law said that the safety of his two children who play in the bonus room was of significant importance. Com. Doyle suggested approving removal of the tree; however, addressing the issue of the responsibility of cost at a later date. Com. Kwok withdrew his motion; accepted by Com. Corr. MOTION: SECOND: Com. Kwok moved to approve Application 06-U-97(M), with tile condition that counsel reports back to the Planning Commission in four weeks with an action plan for the O'Brien Group to come back and provide mitigations on how to improve or beautify the area in terms of providing more trees. Com. Doyle Chair Harris said that she was not supportive of the motion, as she felt the issue was relative to tile bond, and not with planting more trees, since they met the city's condition on replacement trees for the development in a positive way. Following a discussion regarding the O'Brien Group bond and the extensive background of the issue, Com. Kwok amended his motion. AMENDED MOTION: Com. Kwok moved to approve Application 06-U-97(M) for removal of the eucalyptus tree; plant three coast live oak trees within 90 days of removal, and counsel will have 90 days to address the issue. In addition to staff recommendation, if the bond money can be used for that purpose, it be used; otherwise the applicant will be responsible. SECOND: Com. Doyle NOES: Com. Corr VOTE: Passed 4-1-0 Planning Commission Minutes 6 January 8, 2001 Com. Corr said that he was in favor of the action taken; however, the application had not been presented to the Planning Commission since the O'Brien Group still maintained control, and as a result the tree was the loser when the development was built. Application No.(s): Applicant: Location: 04-SP-00, 14-EA-00 City of Cupertino City,vide Consideration of modification o the Cupertino Municipal Code regarding construction noise. Postponed from Planning Commission meeting of December 11, 2000 Tentative City Council date: February 5, 2001 Staff presentation: Mr. Colin Jung, Senior Planner, said that Code Enforcement staff were contacted as well as other cities for input on their code enforcement. He reviewed proposed changes to the noise ordinance as outlined in the staff report, and reviewed Pages 5-'1 I and 5-15. Mr. Jung discussed the construction activity regulations and work hours as set forth in the ordinance. Relative to construction on holidays, Chair Harris suggested the following langtmge modification: "Holiday deliveries and pickups are only permitted pursuant to Section 10.48.29." Mr. Piasecki suggested the following wording: "on weekends (Saturday and Sunday)and holkktys as l~ermitled by Section 10.48.29." Chair Harris suggested that NCO (noise control officer) be written out when first mentioned in the context. There was also a discussion relative to construction hours for public works projects. Com. Stevens expressed concern relative to the change in weekday construction hours, from 7 a.m. to 8 a.m. Relative to home maintenance activities, he pointed out that most of the noise £rom home maintenance is not from the home owner, but a contracted person hired by the homeowner. He said he felt there should be a distinction between the homeowner and a professional contractor relative to the hours restriction. Mr. Jung said that to date, yard maintenance in Cupertino has not been an issue. Com. Stevens commented that the language in 10.48.051 said that daytime use o£ motorized equipment for home and yard maintenance activity is exempt; but did not state by whom. He said he felt it was an improvement and was a step in the right direction to see if it would work. The $1,000 fine would serve as a.disincentive. Com. Stevens snggested that the language be modified to: "Yard maintenance activities conducted by the property owner trod~or resident is exempted." Chair Harris opened the meeting for public input; there was no one present who wished to speak. Discussion ensued regarding the exception process wherein it was stated that there should not be separate rules for city hall and the community. Relative to construction hours, Com. Corr recommended that the starting time remain at 7 a.m. during the week, and change the weekend hours. Com. Doyle and Chair Harris said they felt 8 a.m. was appropriate. Com. Stevens said he felt there should be one start time, and said that he felt 7 a.m. during the week was appropriate. He said the NCO should take on a more aggressive role, and felt that the assessment of a fine would help alleviate the initial reason fbr the need to Planning Commission Minutes 7 January 8, 2001 review the issue. He said because of the amount of construction in Cupertino, it would not be appropriate to put the public and the city at a disadvantage hour-wise. Chair Harris recalled previous problems encountered with early morning noise violations when the code enforcement officers were not yet on duty. Mr. Piasecki suggested the option that the start time be 7 a.m. with the request that code enforcement be set up in such a way to be able to enforce a 7 a.m. start time. Discussion continued relative to the impacts of the starting time and the deliveries on the residential neighborhoods. MOTION: SECOND: VOTE: Com. Doyle moved approval of Application 14-EA-00 Com. Stevens Passed 5-0-0 MOTION: SECOND: NOES: VOTE: Com. Doyle moved approval of Application 4-SP-00 as amended, including deletion of Section (f); modification of 10.48.062 by deleting "mornings" and adding language relative to Sundays pursuant to 10.048.29; and definition of NCO in content. Com. Kwok Com. Corr Passed 4-1-0 Com. Corr said that although he concurred with the other members, he preferred the 7 a.m. start time. OLD BUSINESS 6. Confirmation of Goals for 2001/2002. The summary of the 2001/2002 goals/projects from the previous study session were reviewed. Discussion about goals as outlined in the staff report. Infrastructure (traffic): Chair Harris questioned if they included looking at new intersections to keep up with the city's growth and changes. Mr. Piasecki said that it was a comprehensive process, and they were committed under the Congestion Management Program with a definition of how to address intersections. Zoning Heart of the City Plan: Ms. Wordell explained that it did not become a zoning district; it is a specific plan, not zoned. The regulations in the Heart of the City Specific Plan is not a zone. The old zone is still existing and needs to be replaced with the new zone. Mr. Piasecki said that it should be done as a housekeeping item. 16. Permitted animals: Include rules relative to animals in the code enforcement brochure. General Plan review (Creek Protection): Following a brief discussion, there was consensus to modify the language: "How do we protect the natural state of creeks as we move toward full buildout." Mr. Piasecki said that the city may want to take an advocacy role in the General Plan, ultimately to suggest that some of the concrete channels be Planning Commission Minutes 8 January 8, 2001 14. restored back. Com. Stevens said that the city was involved in dialogue with the water district relative to the Bollinger Bridge project, which the city will fund a portion off Meeting housing goals without displacing moderate housing: Ms. Wordell said that it was included in the General Plan topics, and suggested that the specific language be put back in. Mr. Piasecki said that the state mandates when the housing element is due. He said the city was obligated to include the ABAG numbers as a goal, and to identify adequate sites to meet the numbers, and programs to meet the income distribution requirements in the numbers. The statements will be included in the Plan, and the city will make a good faith effort. Chair Harris suggested language change: "Distribution of housing types to approach ABAG goals." Quarry monitoring: Com. Doyle suggested that the following wording be added: "tbr compliance to health and safety requirements." Parks: Included in General Plan to address the issue of pocket parks. The 2001/2002 Planning Commission goals/projects will be forwarded to the City Council on January 19th. MOTION: SECOND: VOTE: Com. Stevens moved to confirm the Planning Commission goals fbr 2001/2002, and that they be forwarded to t he City Council Com. Corr Passed 5-0-0 NEW BUSINESS: None REPORT OF THE PLANNING COMMISSION Environmental Review Committee: No report. Housing Committee: No report Mayor's Breakfast: Com. Corr will attend the January 9th Mayor's breakfast. REPORT OF TIlE DIRECTOR OF COMM~ITY DEVELOPMENT: Mr. Piasecki reported that the Civic Park Development will be brought back to the City Council for review on January 19th. DISCUSSION OF NEWSPAPER CLIPPINGS: Mr. Piasecki commented on the newspaper clipping relative to the widening of Sand Hill Road. OTHER: Com. Kwok expressed his appreciation to Com. Doyle and Chair Harris l'or their support and mentorship on the Planning Commission and their dedication to the City of Cupertino. Com. Stevens acknowledged the vast experience of Com. Doyle and Chair Harris and their dedication to the city. Com. Corr concurred, and thanked Com. Doyle and Chair Harris for their expertise and history with the city. Mr. Piasecki thanked both Cmn. Doyle and Chair Harris tbr their hard work and dedication to the city. ADJOURNMENT: The meeting adjourned at 9:00 p.m. to the regular Planning Commission meeting at 6:45 p.m. on January 22, 2001.