PC 09-26-06
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
6:45 P.M.
CITY OF CUPERTINO PLANNING COMMISSION
AMENDED MINUTES
September 26, 2006
CUPERTINO COMMUNITY HALL
TUESDAY
The regular Planning Commission meeting of September 26, 2006 was called to order at 6:45 p.m.
in the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA., by Chairperson Marty
Miller.
SALUTE TO THE FLAG
ROLL CALL
Commissioners present: Chairperson:
Vice Chairperson:
Commissioner:
Commissioner:
Commissioner:
Marty Miller
Lisa Giefer
Cary Chien
Taghi Saadati
Gilbert Wong
Staff present:
City Planner: Ciddy Wordell
Senior Planner: Colin Jung
Associate Planner: Gary Chao
Senior Planner: Aki Honda
Assistant City Attorney: Eileen Murray
APPROVAL OF MINUTES:
August 22, 2006 Planning Commission minutes:
Corrections as noted:
. Page 7: Com. Saadati, first line: Insert "it" after "if'
Motion: Motion by Com. Chien, second by Com. Saadati to approve the minutes of the
August 22, 2006 meeting as amended. (Vote: 3-0-2; Vice Chair Giefer and Com.
Wong abstained)
WRITTEN COMMUNICATIONS: Staff noted various written communications received
relative to agenda items.
POSTPONEMENTSIREMOV AL FROM CALENDAR:
2.
TR-2006-14
City of Cupertino
Blackberry Farm
Tree Removal of a specimen oak tree at Blackberry Farm.
Request postponement to the October 10, 2006 Planning
Commission meeting.
Cupertino Planning Commission
6. ASA-2006-19
M-2006-05
(EA-2006-17)
Mike Rohde (Vallco
Fashion Park)
10123 N. Wolfe Road
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September 26, 2006
Architectural and Site Approval and a Modification to a Use
Permit (U-2005-19) for the parking structure north of Macy's to
exceed the permitted 32-foot height limit and to allow parking on
the fourth level. Request removal from calendar; Tentative
City Council date: unscheduled.
Motion: Motion by Com. Wong, second by Vice Chair Giefer, to postpone Application
TR-2006-14 to the October 10,2006 Planning Commission meeting. (Vote: 5-0-0)
Motion: Motion by Com. Wong, second by Com. Chien, to remove Item 6 from the removal
calendar for discussion. (Vote: 5-0-0)
ORAL COMMUNICATIONS:
Robert Levy, Cupertino resident:
. Discussed the Regnart Creek trail which is no longer in the General Plan for the first time in
about 20 years. He said the neighbors objected to having people walk by their back yards. He
recalled that a developer building houses on Rodriguez had to leave part of his land
undeveloped and put a trail through from Rodriguez to the Water District property on the
expectation there would be a Regnart Creek trail and access would be provided. He questioned
what would happen to the property if there is no longer going to be a Regnart Creek trail.
. He asked for clarification on the Planning Commission's role in the future of Cupertino, since
the city was almost completely built out. He said he was concerned about the city's future.
Ciddy Wordell:
. Confirmed that the Regnart Trail was removed from the General Plan and there was a segment
as part of a subdivision and planned development in anticipation of there being more of a
continuity there. There was some access, but not a trail on the DePalma Subdivision that was
approved a couple of months ago; there is a slight extension of it to it east. Things could
change, it is still possible in the future, there might be individual development where you can
get some access, it might not be a Regnart Trail officially, but there still might be a possibility to
get some access along the creek.
. She clarified that there have not been any changes relative to the Community Development
(CD) department, and she want people to know that there hasn't been any change or emphasis in
the city or in the department. The CD department has been that for decades, and the PD is a
division of that, as is the Building Department.
CONSENT CALENDAR: None
6. ASA-2006-19
M-2006-05
(EA-2006-17)
Mike Rohde (Vallco
Fashion Park)
10123 N. Wolfe Road
Architectural and Site Approval and a Modification to a Use
Permit (U-2005-19) for the parking structure north of Macy's to
exceed the permitted 32-foot height limit and to allow parking on
the fourth level. Request removal from calendar; Tentative
City Council date: unscheduled.
Ciddy Wordell, City Planner, presented the staff report:
. Clarified that the discussion would include the process issues in dealing with the application.
. Explained that the applicant has applied for an amendment to the use permit and for
architectural and site approval to exceed the 32 foot height limit and limit of 3 levels allowed
Cupertino Planning Commission
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September 26, 2006
for the parking structure north of Macys. The ERC recommended a mitigated negative
declaration and require that there be additional visual, noise and lighting analysis to analyze any
impacts of that kind to the neighboring properties. They are also requiring a noise report.
. She said she was providing background for the reason for the recommendation that there be no
substantive discussion of this application tonight; the first being that the City Council had
previously directed that they did not want any additional height. The recommendation is to
have the City Council decide if they want this to come back to the Planning Commission for
their recommendation or if they in fact want to make the decision. If they choose to make the
decision without sending it back to the Planning Commission, they would need to schedule that
for a subsequent public hearing; but under this scenario it would be sent to the City Council for
their discussion at their next meeting. No substantive discussion will be held tonight because
the information is not available that the ERC requested in terms of the impact; therefore the
recommendation is to forward this to the City Council for a decision on how they want it heard.
Eileen Murray, Assistant City Attorney:
. Clarified that because it was on the postponement calendar, it wasn't in the Planning
Commission power to refer an item to the City Council. The appropriate approach would be to
forward a minute order to the City Council requesting direction on whether it should go to the
Planning Commission or City Council.
There were no comments from the Planning Commissioners.
Chair Miller opened the meeting for public comment; there was no one present who wished to
speak.
Motion: Motion by Com. Wong, second by Com. Chien, to reschedule Application
ASA-2006-19, M-2006-05 (EA-2006-17) to the October 24, 2006 Planning
Commission meeting. (Vote: 5-0-0)
Motion: Motion by Com. Wong, second by Com. Chien, to forward a minute order to the
City Council for clarification regarding the City Council's intention of not
approving future height structure, and request further direction from the City
Council on whether to handle at the Planning Commission or City Council level.
(Vote: 5-0-0)
PUBLIC HEARING
1. RM-2006-08
Philip Covarubias
(Bates residence)
20077 John Drive
Appeal of a Minor Residential Permit for a 15-foot rear property
line setback for a 392 square foot single-story addition.
Planning Commission decision final unless appealed.
Gary Chao, Associate Planner, presented the staff report:
. Reviewed the application for a minor residential permit for a 15-foot rear property line setback
for a 402 square foot single story addition to an existing two story house, as outlined in the staff
report.
. He reported that the decision of the Director of Community Development to approve the
application was being challenged by a neighbor. He reviewed the six reasons the neighbor was
appealing the approval, as outlined in the staff report.
. In response to the appellant's concerns, the applicant agreed to amend the drawings to pull the
addition further back from the rear property line, resulting in the revised rear setback of 15 feet.
Cupertino Planning Commission
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September 26, 2006
It also reduced the perceivable roof and wall mass as viewed from the appellant's house.
. In addition to the setback change, the applicant made some architectural changes, changing the
roof design from a gable roofto a hip roofto minimize mass.
. He explained that the options for the Planning Commission are to deny the appeal and uphold
the decision of the Director of Community Development as proposed; or uphold the appeal
and/or modify the Director's decision.
Gary Chao answered commissioners' questions regarding the application.
Darlene Thorne, Appellant:
. Said that the proposed remodel project had a major visual impact on her property; a possible
safety impact; and an impact on her home value.
. Said the proposed addition is too close to her fence, creating a possible fire hazard since there
will be oxygen in that room; and/or flood damage to the appellant's home because of the
overhang. She said she felt the size of the proposed addition, even with the newly configured
mass, will have a negative visual impact of a massive wall which will leave a view of only the
tops of telephone poles across the whole back of her fence. It will also create a heat spike in the
afternoon as the sun sets, destroying all the plants grown in medium heat.
. She said the unattractive wall will devalue her home and it will be the only home in the tract
that is so close to the neighbor.
. The normal setback from the back fence is now 20 feet and the addition is requesting 15 feet,
further creating a visual image of a huge, unsightly wall. The entire addition would be better
built on the northeast side of the Bates property where there is 20 feet currently between the
homes on that side. There is no impediment that would prevent this addition proceeding at that
side as a gesture of goodwill and harmony between neighbors who have been very close friends
for 43 years.
. She requested that the Planning Commission direct the applicant to move the addition to the
northeast side of Mrs. Bates' property.
Chairman Miller opened the public hearing.
Philip Covarrubias, Project Designer:
. Said he felt the appellant's objections to the remodel project are unreasonable in the sense of
reference to the zoning ordinance, and don't have a relation to the zoning ordinance itself; and
are more evidence of personal desires and opinions as a matter of taste for the proposal.
. Relative to the ordinance, the application has followed all the proper procedures and has
received approval twice from the city staff. Both proposals submitted are compliant with the
long standing ordinance regulations. In terms of the specific elements, the setbacks at 20 feet on
the rear are still unsatisfactory to the appellant even if we were to comply with the existing
setback itself without a request for any encroachment. They basically would have allowed a
building that would still produced roughly the same visual impairment from her perspective, but
would have not required any neighbor notification.
. The two options previously presented included a 10 foot encroachment into that setback which
is still less than half of that proposed wall, and the second option after revising the drawings
based on her first appeal, took that back down to 5 feet. As noted in the staff report, the
difference between the 5 foot stretch and wall is insignificant compared to what would have
been a 16 foot length of wall if using the 20 foot setback in the first place.
. Relative to the scale of the proposal, the largest one was 402 square feet, under 20% of the
existing square footage; as far as that point raised, the square footages for the existing building
were clearly marked under the project data section; the square footage of the garage was
separated to show what the actual living area square footage and garage square footages are.
Cupertino Planning Commission
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September 26, 2006
. The consistency with the neighborhood is still applicable to these proposals as the appellant
mentioned. The next door neighbor did roughly the same proposal as our originally proposed
design, including the small jog on the exterior wall. That has set a precedent which would be
another reason to consider going with Option 1; but in the interest of compromise we stepped
back the wall 5 feet and changed it to a hip roof in order to mitigate the view impact on the
appellant's rear yard.
. The scale of the proposal is also consistent with the existing home as they are also just matching
the same plate height and same roof pitch as the existing home. It is not out of scale with the
home as shown on the overhead view of the staff report.
. Said it was their opinion relative to the applicant's concerns, that the concerns did not have
merit with the exception of the view issue; as listed in the staff report and previously presented.
The ordinance changes have been standing since prior to the 1999 revision; the visual images
were provided by the city in accordance with their minor residential permit application
requirements; and the setback distances have been consistent throughout the previous ordinance
changes.
. There is not a fire hazard to the neighboring home, and is an exaggeration of the effect of what
the addition will have on the neighboring plants.
. He said he felt they should concentrate mainly on the view issue and with that in mind,
attempted to scale back the massing as far as that line that is adjacent to her side yard. As noted
by the staff, the difference in the view between the 5 feet proposals of the 20 foot setback and
our second option is not that significant and there is no privacy issue because that is essentially
one solid wall with the exception of the bathroom window which could be an obscure window.
. The wall and the impact on the neighboring property is easily mitigated with landscaping which
has been offered by Mr. Bates.
. He said their position on the issue of a neighbor's personal opinion vs. the sovereignty of the
individual owner is at stake; and they feel that they compromised to a significant degree on the
design of the proposal and feel it is an issue of whether or not to favor property rights of one
individual owner vs. an excessive level of influence from a neighbor based on solely personal
desire or opinion of the design itself.
. We have taken into consideration the appellant's alternative design which would flip the option
to the other side of the lot; in our assessment it creates an excessively long access path to the
rear yard from the garage side which is the main access side for the property; you would have to
walk the entire depth of the property if you were unloading something out of the garage. There
is additional cost with that proposal because an extensive paved area that is been there a long
time; it is just as dear to Mrs. Bates as Mrs. Thorne's patio is to her and this request would
require that the building as proposed also not only get flipped but that the existing patio also be
taken up and relocated and set down as new paving. The magnitude of that request in our
opinion is a little excessive for what could be resolve through design and what we had already
intended to revise. It is also our opinion that it would create a lopsided massing on the right half
of the lot.
. On the interior it creates an undesirable connection of the public and private space as appellant
stated this is a master suite for Mr. Bates' mother; she does have an oxygen tank that she carries
with her and this is meant to be a private sanctuary for her; so to place it next to the family room
which is a more public area in our opinion, negates the purpose of that room. That would also
bring about more additional costs in terms of relocating windows and doors in order to meet
light and ventilation requirements. There is an existing fireplace in the family room which
would tougher for us to meet the light, ventilation requirements if we are going to be placing the
addition on the side where the larger sliding door is. Lastly, it also, for the interior, increases
the distance from the new bedroom to the kitchen and the main areas where Mrs. Bates spends
most of her time. The current proposals keep that at a close proximity of about 5 feet, whereas
flipping it the northeast side would increase it to about 30 feet and a step from a portion of the
Cupertino Planning Commission
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September 26, 2006
house that is on the slab foundation to that of the raised floor foundation; whereas the one
proposed would keep everything at the raised floor level so that she could get to the kitchen, the
bathroom and to her main seating areas without having to go down any steps and at a shorter
distance.
. Summarized that the proposal is consistent with the ordinance and the staff interpretation of the
ordinance; it is consistent with the neighborhood and the neighborhood's existing precedents.
The compromise that was significant and in good faith as far as taking her considerations into
account was rejected. It is our assessment that the bottom line is she doesn't want anything on
the side of the house, so even if it was to conform to setbacks, there would still be a complaint.
The effect on the neighbor is minor and can be easily mitigated to make a smooth transition by
way of landscaping and in terms of the precedent of honoring an unreasonable in our opinion
request and the seemingly unwillingness to compromise over an individual's sovereignty and
property rights, not to be a doomsday prophet, but in the larger scope, it would be a virtual
Pandora's box where any neighbor could cause any project to be delayed for this amount of
time, seemingly based on a matter of taste or a personal disagreement with the ordinance.
Com. Wong:
. Asked if a certified civil engineer had been hired to do the survey of the property lines.
Mr. Covarubias:
. Said they did not hire a surveyor but was willing to confirm the property lines. Said it was his
understanding that the fence although replaced recently has been in the same location for about
45 years.
Chair Miller:
. Asked if they had considered making the setback of the addition the same as the setback for the
existing structure.
Mr. Covarubias:
. Said it would be their design goal in terms of being able to make the addition look like it was
always part of the existing home, which is the reason they wanted to use the gable roof and go
with the rectangular option originally proposed.
. In this case, in terms of the floor plan, there is a limited amount of space in the dining room and
the window in the kitchen sneaks up on that wall. In the interest in getting a reasonable amount
of width for the design's program, it was decided to put it out to the setback as allowed by the
ordinance.
. Responded to other comments by Chair Miller about the proposed design.
Vice Chair Giefer:
. Asked if skylights in the kitchen area were considered.
. Suggested other cost effective measures.
Mr. Covarubias:
. Said they had not considered skylights; basically this was referencing the project already
approved on the neighboring property; it was the most cost effective way to preserve the natural
light and ventilation as well as get the needed program on there. He said that because of Mrs.
Bates' fixed income, it was the most cost effective way, and they felt it was not in line with her
budget to flip the entire design and patio as well.
. Said there was a crawl space in the closet closest to the bathroom and there was one designed
for the new addition.
Cupertino Planning Commission
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September 26, 2006
. Above the adjacent grade, the existing finished floor elevation of the raised floor portion is
about 12 inches above grade.
Chair Miller opened the public hearing.
Mrs. Bates, family representative:
. Explained that the downstairs bedroom addition would allow her mother- in-law to remain in
her home with her physical limitations.
. To flip this, which seems to be the only reasonable issue her neighbor has raised, would be cost
prohibitive for her.
Jennifer Griffin, Rancho Rinconada resident:
. Said it was not likely that this type of building less than 20 feet from the back property line was
even part of the county ordinance, and is a new type of building scheme for some residents of
Cupertino. John Drive is an older area of Cupertino and has been under this ordinance for some
time.
. There was a similar building scheme with only 20 feet from the back property line about two
years ago in Rancho Rinconada where lot sizes are often less than 5,000 square feet. There was
a home 5 feet from the back property line with a trellis and PG&E equipment, and the ultimate
amount was only 3 feet from the back property line, which presented a problem for the
neighbors.
. She said she did not understand why the item was being considered further; a neighbor has
expressed her objection to it. Mrs. Thome has the right to object to this; this is an unusual
building standard and it sets up dangerous precedents for the city. There needs to be standard
back yards.
Mrs. Thorne:
. Mrs. Bates cannot go into her back yard; what she had was a small area with potted plants and
orchids but she can no longer go out there.
. She asked why it was not appropriate; the architect moved it back 10 feet and said it was superb;
but if she asked it to be moved back another 10 feet, it is considered minor and insignificant.
She said that if it cannot be moved to the other side, to please move it 20 feet.
. She requested that a condition be added that would guarantee significant drainage be caught,
converted and channeled to the street so that it does not go onto her property.
Mr. Chao:
. Said there was a state law prohibiting any drainage from the project property to drain onto
adjacent neighbor's site. He said it was normally covered at the Building Department stage, but
could be added as a condition.
. The side yard has to be graded so that it doesn't drain toward the neighbor's side and there are
gutters. If need be, there could be French drains and culverts being placed; all that will be
checked by Public Works at the time of the building permit check process.
Dena Kaufer:
. Clarified that the house they are discussing setting a precedent with having the addition on one
side has no house on the other side. She said she wanted to ensure that the precedent is set that
there is no house on the other side.
Chair Miller closed the public hearing.
Cupertino Planning Commission
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September 26, 2006
Com. Saadati:
. Said that it appears that the addition meets all the requirements of the ordinance; the setbacks,
the remaining back lot being 20 times the lot width; however, considering that the floor height is
12 inches above the adjacent grade, the plate has to be about 3 feet above the fence. By planting
some shrubs and trees on the side, that will screen it and make it nicer.
. The proposed addition is not out of scale; I could see the benefit of it being on that side, because
it is closer to the kitchen. This is not the first time that this type of addition has been made by
reducing the backyard setback.
. Said he supported staffs recommendation with the addition that some trees and shrubs be
planted on the neighbor's side, to provide more screening for the second level. The applicant is
willing to do that, and it may resolve the issue.
Mr. Chao:
. Said that when someone pulls a minor residential permit, they do not necessarily have to get a
grading engineer or soil report. It may be required, but is usually determined by Public Works
and a soils report and grading plan is not generally required at the planning stage.
. Privacy planting and screenings are only required on two story additions and two story homes; it
is not required by the ordinance, although you could suggest it, and if agreed to by the applicant,
you can add it as a condition.
. Said there are no mitigations measures in the ordinance for single story additions.
Com. Chien:
. Said that the Planning Commissioners are appointed by the City Council to give advice and
consent about matters from the ordinance; and the R1 ordinance pertaining to the single family
residential ordinance is one of the ordinances where he does not like to do a lot of interpretation
because once we start meddling into individual properties, we essentially are having
government dictate what private property owners can and cannot do. However, our ordinance
does recognize property rights of both sides during any construction. We recognize the person
has a right to build, the neighbor also has a right to their privacy and that is why in parts of our
ordinance there are privacy mitigation measures. Unfortunately there are not any for single story
additions and that is something we could look at in the future.
. Said he did not support 5 foot setbacks; they are the minimum setbacks and make it difficult to
plant any privacy plantings should the applicant choose to. In terms of the basis of Ms.
Thorne's appeal, staff has done their best to address all 6 items and the applicant has done her
best to address the concerns expressed.
. He said for the reasons stated, he supported staff's recommendation.
Com. Wong:
. One of the things when reviewing the R1 ordinance, is to make sure there is privacy protection
and notification given to the neighbors. The next door neighbor did get notified, and was
unhappy; and she has the right to bring lip her concerns to city staff.
. Said he was concerned that the ordinance is prescriptive and is set; if you want to suggest
something to your neighbor and have it on the other side, I think you did due diligence, asking
the Bates about their concerns.
. Said he was more supportive of the first plan presented to the Director of Community
Development; the original plan that the Bates had. The second plan includes the window
looking out to a wall, whereas she would prefer to look out at something more pleasant. The
designer did a good job following what is within the ordinance.
. He suggested having a hip roof at the end instead of a gable roof; follow up and ensure that the
property line is correct by hiring a civil engineer; and follow up regarding the drainage to make
sure the drains are on the street, even though it is a state law.
Cupertino Planning Commission
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September 26, 2006
. He said they were things that could be accommodated, and because it is very prescriptive, he
supported the Community Development Director's decision.
Vice Chair Giefer:
. Said it was a difficult decision since visiting the site and meeting with the appellant and
applicant, and looking at the site from both sides of the fence; it provided a realistic view of
what the addition would be like.
. Suggested to make it an equitable project for both sets of property owners, that the project
conform to the 20 foot setback from the rear fence line.
. Said she would like to see the addition aligned with the current side setback, western side
setback of the home so it doesn't encroach as close to 5 feet to the fence line. If it encroaches
the 5 feet of the setback and there is a privacy planting, you don't have a viable pathway, and
you currently have a gate on the west side of the applicant's home, resulting in a corridor that is
impassible by privacy planting which would soften the afternoon sun and western heat that
would reflect off the new addition into Mrs. Thorne's yard.
. This is a difficult spot for both the appellant and the applicant because Mrs. Bates has a right to
develop her property and her family is trying to accommodate her. The appellant is not looking
forward to the change and I would like it to conform as much to what we have today. If the
applicant decided to switch it for some reason on the east side, I would have no objection to the
minor modification on the rear fence line because of the layout to the school behind it and the
two adjacent neighbors. I don't think it would be an invasion of privacy.
. Said she did not support the Director's minor modification; and would like the new addition 20
feet from the rear fence line with a hipped roof to minimize the visual impact. It should also
conform to the current foundation line coming from the existing structure.
Chair Miller:
. Said it was a difficult issue trying to decide which neighbor's concerns are more valuable;
which is not the function of the Planning Commission, but the purpose of the ordinance which is
prescriptive. He said for that reason he was inclined to go according to what the ordinance
requires; as Com. Saadati pointed out, the rule of 20 times the width of the property has been
applied many times to many houses in Cupertino; and has been done for many years. He said
he did not see an issue from the standpoint of a major exception to the ordinance.
. It would be good if the applicant could move the structure a little to the east, and there is the
possibility here from a functional standpoint of moving the doorway over; however many feet
that is to the kitchen, and then increase the side setback by one foot. I am not sure if the
applicant is amenable to that or not; it would reduce the overall size of the structure or the
square footage of the structure by about 22 square feet which they could choose to make up by
extending the eastern side of the building.
. He said for those reasons he supported staffs recommendation.
Motion: Motion by Com. Wong, second by Com. Saadati, to deny the appeal and uphold
the original decision of the Director of Community Development with the following
modifications: (l) At the end of the building, change to a hip roof;
(2) Hire a civil engineer to confirm the property lines; (3) Drainage should be
confirmed to make sure it goes out into the street; (4) Landscaping privacy plan be
approved by the Director of Community Development. (Vote: 4-1-0; Vice Chair
Giefer, no.)
Ms. Wordell noted that the decision may be appealed to the City Council within 14 days.
Cupertino Planning Commission
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September 26, 2006
3.
TR-2006-15
Sam Lin (Chinese
Church in Christ)
Tree removal and replanting of eight eucalyptus trees at an
existing church. Planning Commission decision final unless
appealed.
Colin Jung, Senior Planner, presented the staff report:
. Reviewed the application for tree removal and replanting of 8 eucalyptus trees at the Chinese
Church in Christ on Bandley Drive, as outlined in the staff report.
. He reviewed the arborist's report concluding that although the trees are healthy, they have
suffered limb breakage due to topping in the past, which results in new water sprout shoots that
are poorly attached and are highly prone to failure. Further topping would require that the trees
be pruned every 3 to 5 years for life which would be expensive for the applicant. The arborist
recommended that replacement be one for one with smaller 24" box trees.
. Staff is agreeable to tree replacement for the interior trees because Chinese Pistache is a
deciduous tree; for perimeter trees staff recommends an evergreen tree for privacy screening
reasons.
Angela Chen, representing the Chinese Church in Christ:
. Presented a slide presentation illustrating the location of the trees and proof of prior damage
caused by limb breakage.
. She reviewed the potential hazards of the eucalyptus trees, including fire hazards; impacts of
falling limbs, destroying property and sometimes resulting in injury or death; the nuisance of
dropping sap and large amounts of debris in the area.
. Applicant concurs with staff in planting Canary Island Pine trees as replacement trees.
. Said that the church would not meet their parking demand if the trees remained in their present
location.
. Estimated that the cost of up keeping the eucalyptus trees would be $3,000 every 3 to 5 years.
Vice Chair Giefer:
. Asked staff if they considered recommending a native tree as the replacement trees as opposed
to Canary Island Pines.
Mr. Jung:
. Said that staff felt that when they got to a mature size, there wouldn't be enough growing space,
or enough room for the canopy and have the parking spaces there also, since the canopies are 40
feet wide. It seemed excessive for the growing space to fit into.
Com. Wong:
. Asked for clarification on the staff recommendation; "add a finding that eucalyptus are part of
an approved landscape plan for a church"
Mr. Jung:
. Said that the heritage and specimen tree ordinance lists a number of trees that by species and
size are protected; another category of protected trees includes those trees that are a part of an
approved landscaping plan which the eucalyptus are.
. The Assistant City Attorney questioned why the eucalyptus trees were being protected and staff
explained it was part of an approved landscape plan. She suggested that the Planning
Commission recommendation is clear that it is included as a finding in the resolution. It is an
acknowledgement that it is subject to the ordinance.
. Relative to the irrigation, if the trees are to survive, they need irrigation. The newly planted
trees are not well established, they will need regular watering to become established in order to
survive, which is the reason for the recommendation they provide irrigation; they can use the
Cupertino Planning Commission
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September 26, 2006
existing irrigation system. The present eucalyptus trees have been there for a long time and are
well established and likely do not rely on existing irrigation. A new tree relocated to this
relocation will need irrigation in order to survive.
Chair Miller:
. Relative to Com. Wong's question, we haven't been requiring that in other projects to this point.
Why is this a change in policy?
Mr. Jung:
. Said it was not a change in policy; it is also observation in the arborist's report that if trees are to
be replanted, they will need to be irrigated. Also in another recent report that was done, relative
to the former Suburban House, those trees were removed and new trees were going in. The
arborist did recommend that irrigation go in at that location as well.
Com. Chien:
. Asked why they were protecting a certain number of the trees. He recollected that trees as part
of an Rl privacy protection plan would fall under protection; and his understanding of that vs.
the landscape of any tree in the landscape plan is drastically different. He asked for clarification
that a tree can be in a landscape plan but not necessarily be used for privacy protection
purposes.
Mr. Jung:
. The tree ordinance says that trees that are part of an approved landscaping plan usually pertain
to a non-residential development, or a multi-family development. If there is some sort of
discretionary planning approval where there was an approved landscape plan, they are
considered protected trees and require a tree removal permit.
Ms. Wordell:
. Said her interpretation is that all of the trees are protected trees because of the landscaping plan,
and it is a term of the application that some of them actually serve as privacy trees, but they are
privacy protection trees in a sense of the Rl ordinance. They are all in the category of an
approved landscaping plan.
Chair Miller opened the public hearing.
Earl Sutton, Sutton Swim School:
. Said his business was located in the same building as the church; and falling limbs and trees fell
on his employees' and customer's automobiles. He said that limbs fall off the trees frequently
in the absence of any wind or heat factors.
. Foot traffic from his business is high and he is concerned for the safety of his clients.
. He said he applauded the church for bringing their concerns about safety to the Planning
Commission for resolution.
Jennifer Griffin, Rancho Rinconada resident:
. There are many different species of eucalyptus trees planted in the area; many of them are old;
they shed their bark at certain times and drop their limbs in the middle of summer. She said the
trees were likely planted when Cupertino wanted Australian types of trees planted, and there
was a drought.
. The eucalyptus trees were appropriate at the time they were planted, but they may not be
appropriate if there are children in the parking lot; times change. She applauded the church for
Cupertino Planning Commission
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September 26, 2006
not cutting the trees down; it is a known fact that Cupertino has approved landscape plans for
buildings.
. She said she did not promote removing large trees in Cupertino; however, if they are removed,
she suggested that the replacement be as large as possible, as they are large trees with canopies
about 40 feet tall.
Chair Miller closed the public hearing.
Com. Wong:
. Said that the applicant went through the appropriate process regarding their concern about the
eucalyptus trees; they did not cut them down. Agreed with Ms. Griffin that she acknowledged
that there were children in the facility and safety was a major factor for them and the
parishioners of CCIC.
. Said he supported the application based on staffs recommendation. He said he felt it was
important to have privacy protection trees along the perimeter over the single family homes.
. He commended the church for following the process and for working with staff to resolve the
Issue.
Vice Chair Giefer:
. Said she concurred with Com. Wong that she would rather see people follow the policy as
opposed to circumventing it and having to come in after the fact.
. I think that when we talk about the tree policy later, what we need to do is make it easier to
remove trees that are not or should not be protected because they are not a native species; they
are invasive and a variety of other reasons that might make sense. We need to also make sure
that we are also keeping our heritage trees that are older, a part of the city. These are not. The
eucalyptus trees do present a fire hazard. they are non native and use a eonsiderable amount
of water and will need to be irrigated far a longer period of time than the native speeies.
Because they are for privacy screening, I would like to specify the trees 3, 4 and 7 be 36 inch
box size. I am fine with the smaller trees in the parking, the landscape beds between the parking
spaces; we don't want an excessively large tree there but we do want to create shade for the
parking lot in the long term, and as they mature, they will grow and provide shade for the
parking lot. I think along the back fence we do need to have a large tree and I would like to see
that be an evergreen native species along that fence line.
. Other than those changes, I would support staffs recommendation.
Com. Chien:
. Said he understood the city received approximately $3,000 for the tree removal permit.
. Said that the tree ordinance will be studied as there continue to be infractions. Safety is the
number one concern when it relates to the possibility of endangering people.
. He said the applicant has done a good job of finding evidence toward that fact and an adjacent
property owner has testified about trees and limbs falling.
. Supports the removal of the trees, with a preference for using native species as replacement
trees.
Com. Saadati:
. Said he concurred with previous comments.
. Considering eucalyptus are not native trees and pose hazards, he said he was in favor of tree
replacement, possibly with native species.
. Supports staffs recommendation for approval of the tree removal.
Cupertino Planning Commission
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September 26, 2006
Chair Miller:
. Said he supported staffs recommendation and staff could choose the tree replacement species.
. Said that safety is first and trees should be removed.
Motion:
Motion by Com. Wong, second by Com. Chien, to approve Application TR-2006-15,
including the addition of the findings that the eucalyptus tree is part of the approved
landscaping plan for the church subject to Chapter 14.18 of the Municipal Code
pertaining to heritage and specimen tree per the model resolution.
Amended
Motion:
Friendly amendment by Vice Chair Giefer to add that they specify the
privacy planting along the fence lines trees, 3, 4 and 7 as a native Deodora
Cedar and that they be 36 inch box size to aid in the privacy between them and
their neighbors.
Mr. Jung:
. In response to Com. Wong's question about the recommendation, he said that staff
recommended the Flack Leaf Paper Bark primarily because it was on the list of privacy trees in
the R1 zoning ordinance, and also with the intent of having a tree that could grow to a
considerable size so that eventually it could replace in stature the eucalyptus trees that are
presently there. The same applies to the Canary Island Pine, which is another tree that over time
will grow to the height that is comparable to the existing eucalyptus trees. They are both
evergreen trees and from a form standpoint, staff felt that they would be more appropriate
because they have a tendency to have a columnar form rather than a conical form.
. The 24 inch box was reasonable in size; there are landscape islands there; they are not that large
and to plant a 36 inch box tree, the island needs to be 3 feet by 3 feet wide. The 24 inch box
will have a small root ball and will have a chance to adapt itself to that island vs. trying to force
something.
Vice Chair Giefer:
. She said that once the eucalyptus are removed and the stumps ground out, the new trees can't be
planted where the stumps are ground out; planting has to be adjacent to it.
. It will not be directly in the island, but toward the back fence line. If the soil is going to be
replaced, and it is going to be exactly where that tree is, that is a different issue and I would
agree on that.
Com. Wong:
. If you suggest that, when we plant the Chinese Pistache, we will run into the same concerns.
. It would be suitable to have them planted as close as possible in the island, because it is a point
of parking and the trees help shade the patrons, the church goers and the swim school patrons,
and we want to plant a tree that is compatible with the landscaping plan for the parking lot.
. Said he agreed with staff that the Deodora Cedar or Atlas Cedar tends to grow wide vs. the other
ones which grow straight up.
. The other concern is having an easier maintenance free tree and the paper bark tree is part of the
privacy and landscaping trees that have been preset by the ordinance.
Com. Chien:
. Said they can mix and match trees; however, the findings today say that per the arborist's
suggestion, that the total combined replacement trees equal to about $9,000. He said he
supported Vice Chair Giefer's recommendation for Deodora Cedar; however, if that is a large
tree or is cost prohibitive, the applicant could find a smaller tree for the other areas, because
they are trying to place a value there.
Cupertino Planning Commission
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September 26, 2006
Ms. Wordell:
. Asked if they could leave some options, that you prefer natives within certain constraints.
Chair Miller:
. Said he was not at ease designing the landscape architecture, and would have staff do it. He
said he did not support an increase, staff s thought that a 24 inch box tree will give a better
chance of growing vs. 36 inch.
. He said he supported staffs recommendation, and could add further guidance, but not specific
trees, just specify non-native vs. native.
Vice Chair Giefer:
· Said she supported the language, concurred with Com. Chien's observation about the value of
the replacement trees.
Amended
Motion:
Com. Wong accepted the amendment for Nos. 3, 4 and 7, that it shall
be 24 inch box, native evergreen trees based on the approval of the Director of
Community Development. Second accepted by Com. Chien. (Vote: 5-0-0)
Chair Miller declared a recess.
Com. Saadati left the meeting and did not return.
4. MCA-2006-03
City of Cupertino
Municipal Code Amendment to amend Chapter 19.68 of the
Cupertino Municipal Code related to permitted and conditional
uses in Park and Recreation (PR) Zones. This amendment would
create a new conditional use in this zoning district, which would
allow the Blue Pheasant to operate until midnight, subject to a
conditional use permit. Tentative City Council date: Oct. 17, 2006.
Gary Chao, Associate Planner, presented the staff report:
. Reviewed the proposal for Municipal Code amendment of Chapter 19.68 of the Cupertino
Municipal Code related to permitted and conditional uses in the Parks and Recreational (PR)
zones. The amendment would create a new conditional use in the zoning district which would
allow the Blue Pheasant restaurant to operate until midnight subject to a future condition of use
permit.
. He reviewed the history of the operating hours of the Blue Pheasant restaurant, which until the
Spring of 2004, the closing was 2 a.m. Eighteen months prior to the March 2004 lease
expiration, staff negotiated a new lease through 2009 based on the 11 p.m. restaurant/bar closure
time. The 11 p.m. closure was important to the surrounding property owners, but was a
limitation on the business viability. Since acquiring the business in May 2005, the new owner
has been closing the premises at 11 p.m.
. Mr. Tsachres, the new owner, is requesting that the closing time be extended to midnight, three
nights per week.
. Staff supports the proposed zoning code amendment since it allows the same rights to an
existing commercial use, the Blue Pheasant, that other commercial uses in Cupertino have,
which is the right to apply for a use permit.
. He clarified that the condition of the 11 p.m. closure was that no more patrons would be
permitted in the facilities after 11 p.m., but the patrons already in the facility were not required
to leave the premises.
Cupertino Planning Commission
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September 26, 2006
Staff answered Commissioners' questions regarding regulations for hours of operation in other
cities, history of code enforcement concerns, and clarification of conditional use permits for 2 a.m.
closings.
Vice Chair Giefer:
. The justification for staffs recommendation is that we want to make this amendment because it
allows the same rights to an existing commercial use; however, other commercial uses within
the city can petition us to stay open till 2 a.m. but we have determined to include the stipulation
that the applicant can only apply for a conditional use permit through midnight. Questioned
why it says midnight rather than 2 a.m. which is when the State of California would require him
to close.
Mr. Chao:
. Explained that it was the requested hours from the applicant and/or restaurant owner.
Eileen Murray, Assistant City Attorney:
. Said that if the owner stayed open to 2 a.m. it would have to be a commercial zone, but is a
Parks and Rec zone. Businesses are permitted to stay open until 2 a.m. if they are in a
commercial zone.
. In this case, we would not particularly favor changing the area to a commercial zone or even
that portion of the park area because it abuts a residential area. There is a compromise having
this type of business next to residences, in a Parks and Rec zone.
Chair Miller:
. Said that patrons cannot enter after 11 p.m., but the patrons inside can potentially remain inside
as long as they want.
Ms. Wordell:
. That is true in the current ordinance; if this comes back for a conditional use permit, that can be
addressed as it was for another restaurant in Cupertino that was especially sensitive and they
had special restrictions placed on them. (Chilis)
. With respect to Chili's they had to close at 10 p.m. and people had to be out, and they had till 11
p.m. for the employees to leave.
. The closing time was enforced because of the residential area directly behind the restaurant.
Ms. Murray:
. Clarified that Chilis had a parking lot in the back which abutted residential homes at the time.
She said there had been many complaints about car noise during the late hours.
. Stated that Mr. Tsachres had been addressing the former problems with the noise in the parking
lots at the Blue Pheasant during the late hours, and code enforcement was also more prevalent in
that area, trying to reduce the problems.
Chair Miller:
. With respect to the justification, it seems like we are not comparing apples to apples because of
the different zoning. The other places that we talk about in Cupertino are in a commercial zone
and this is a Parks and Rec zone.
. Without this application, you are saying the current situation will continue where patrons who
are there can continue to stay there; there is no way to adjust those hours without him applying
for this. In another words, if we satisfy this request and we also at the same time, say 12 a.m.
means 12 a.m., the patrons have to be out.
Cupertino Planning Commission
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September 26, 2006
Ms. Wordell:
. You would say that at the conditional use permit stage.
Com. Wong:
. Asked the city attorney if they had looked at the lease between the city and Blue Pheasant.
There are no hours spelled out in the lease; so if the lessor wants to do it, they can just go
beyond 11 p.m.
Ms. Murray:
. Confirmed there was an II p.m. closure in the lease. The lease and the closure were negotiated
in a lawsuit and at that time the City Council in approving the lease, Mr. Lowenthal clarified at
the Council meeting, that closing meant closing the doors at II p.m. and no new patrons were
allowed in. There was no discussion at that time of an actual time when the building was to be
emptied or all patrons and employees out of the building. It was not a part of the negotiation,
nor a part of the public meeting with the City Council.
Mike Tsachres, owner of Blue Pheasant Restaurant:
. Said the issue of the 11 p.m. closing has been going on for the last year and he would like to
hear from the residents who had concerns, so that he could address their concerns.
. He explained the reasons it was important to have the one additional hour of operation in the
evemng.
. Said that when he purchased the restaurant he lost business because of the earlier closing time.
However, the 11 p.m. closure creates a continuation of losing a business, specifically whoever
arrives between 11 p.m. and midnight and cannot enter the nightclub, will not return. Day afer
day, there is a loss of customers.
. When the restaurant opened, there was a problem with the people parking across the street from
the restaurant. We have security and additional signs on the street indicating that it is not a
parking area for restaurant patrons. We approach patrons entering the restaurant who have
parked on the street and try to persuade them to go to the post office to park. Weare constantly
monitoring the customer to minimize any troubles with the neighbors to avoid any friction. It
has reduced the problems and complaints. The Sheriffs Department also assists in the parking
lot on the weekends.
. He said he felt the additional hour of operation would not cause additional problems because all
patrons and employees would be gone from the building and parking lot.
. He said that if business does not improve, he will be forced to put the restaurant on the market
as it is not producing to its potential.
. He explained that he had invested approximately $30,000 to improve the facilities.
Chair Miller opened the public hearing.
Terry Hertel, Byrne Avenue:
. Said that there has been improvement since the 11 p.m. rule.
. Thirteen months ago the community voted to have the closing time be 11 p.m. and he said he
felt it should remain 11 p.m. closure.
. He said that prior to the 11 p.m. closure and Mr. Tsachres' ownership, there was prostitution on
the property when the facility was open until 2 a.m. The earlier closing time eliminated that.
. He said there are still large quantities of empty bottles on Friday morning and Saturday morning
and many customers drink before they enter the premises. Most of the cars parking on Byrne,
Orange, and Granada has stopped.
Cupertino Planning Commission
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September 26, 2006
. He said that staying open until midnight would allow people more time to drink and the noise in
the parking lot will likely resume. He said the community wants the lot empty by midnight.
Jennifer Griffin, Rancho Rinconada resident:
. Said that a former Homestead High School teacher, Mary Lou Lyons provided information
about the Hoo Hoo House which was an eating establishment or roadhouse in the area for
almost 90 years. It was located near the Blue Pheasant and Cupertino Symphonic Band played
there Friday and Saturday nights and they were likely a rowdy group also. Although the Blue
Pheasant is now located in a recreational area, and if considered a historical section of the city,
there is historical precedence for having a roadhouse there.
Richard Knock, representing resident John Bunz:
. Opposed to the application.
. Said Mr. Bunz' main concern is parking. If the parking situation could be resolved and not
changed by some shifts in the hours, it would be within the bounds of things he would be at ease
with.
. The permit would apply for a six month trial and would then monitor the noise in that time if the
six months would also monitor the parking, which would be a good addition to the items
brought up.
Marjan Kashvad, resident:
. Opposed to the application.
. Discussed the parking problems on the weekends; the parking lot is full and cars are parked on
the streets, and the Sheriff has to be called on several occasions.
. Said that there continues to be noise from the site which has a negative impact on the
neighborhood.
. She said that if the closing hour is extended to midnight, it will bring in a different type of guest;
people from other bars who have been drinking prior to coming to the Blue Pheasant.
. The restaurant business is suffering because there is no focus or nurturing of the restaurant;
what is happening is, in order to compensate for the lost business of the restaurant, the nightclub
comes in, and that pressure is kept pushing back on the residents.
. This land was bought, the residents paid for it through taxes; and trusted the city to manage it
for the city's well being and welfare. Every time you push the times and the cars, the residents
suffer the brunt of it. The $30,000 in improvements was the city's money, not the owner's
money.
. She reported that last year the city lowered the rent for the business to $2900 per month for the
entire year. The rent for this year should be $7,000. She suggested that the city work with the
business owner on a number so that the owner can focus on the restaurant business to make it a
success.
Ms. Kashvad:
. Said she was not opposed to the restaurant, and supported it although she did not patronize it
because of her frustration about the management.
. She said she felt the owner puts the emphasis on the nightclub because he said the restaurant
was not profitable, putting all the pressure and focus on the nightclub business. She said she felt
it could improve if the city worked with the owner to improve the restaurant operation.
Theresa Horng, Cupertino resident and realtor:
. Opposes the application.
. Said that the restaurant owner is unable to enforce the patrons leaving at 11 p.m. with the II
p.m. closing time; and the parking lot is still full at 11 :30 to midnight.
Cupertino Planning Commission
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September 26, 2006
. The customers create noise in the parking lot and leave litter in the streets.
. She said one hour will not change the success of the restaurant, and the owner should try to
improve the business of the restaurant and consult a business consultant if necessary.
Marianne Klinkowski, Phar Lap Drive:
. Opposed to the application.
. Has resided directly across from the Blue Pheasant restaurant for 26 years; in the 80s the
restaurant closing hours were 2 a.m. and there were many problems. With the II p.m. closing,
things have improved; however, patrons remain in the nightclub for hours after closing.
. Parking on the street is dreadful; the residents pay $40 annually for permit parking on their own
street because of the Blue Pheasant.
. She said the applicant purchased the business with the 11 p.m. closing, but with a history of a 2
a.m. closing. She questioned whether he was edging increment by increment toward another 2
a.m. closing.
. She said there was trash, litter and noise outside the premises and on the parking lot and
surrounding area. She has had to call the Sheriffs Department to ask for help with problems.
. Recommended the enforcement of an 11 p.m. closing; lights out, everybody out. Although it is
a nice restaurant, they don't need a bar in a residential neighborhood.
Sunil Malkani, resident:
. Opposed to the application.
. Concurred with previous speakers on the issues.
. Things have improved in the last two years, but there are still incidents of the beer bottles, noise
and people parking on streets.
. Said that code enforcement does not show up when called at 11 p.m. or midnight.
. He said he did not understand how the business could be suffering since the parking lots are full
almost every weekend between 8:30 p.m. and 11:30 p.m.
. He said a lot of time is spent revisiting the issue of the 11 p.m. closing time.
. Reiterated that the 11 p.m. closing is not really 11 p.m.; it goes onto midnight or later.
Tessa Ennals, Florence Drive:
. Opposed to application.
. Said that in a questionnaire to the Oakdale Ranch HOA about social events and concerns
involving the city, of 25 responses to question about extending the hours of the Blue Pheasant,
9 were strongly opposed to the extension; 4 somewhat opposed; 5 in favor and 7 no opinion.
The bylaws of the association do not allow any official position be taken on the issue.
John Ennals, Florence Drive:
. Opposed to the application.
. Expressed concern that the process laid out in the letter sent to determine if the Blue Pheasant
have longer opening hours is not working well.
. Pointed out that he attended the Parks and Rec Commission meeting regarding the issue and
said that the documents and information for the present Planning Commission meeting did not
have continuity with what was said at the Parks and Rec meeting. He noted that the documents
stated incorrectly that the resolution was passed, when it was rejected 2: 1 by the Parks and Rec
Committee.
. He said there was also some discussion and a recommendation made as mentioned tonight
where they would rather have a trial period of 6 months before any change be made to zoning.
That passed 2: I. He expressed concern that none of this particular information was in the
Planning Commission packet of information. There is also no summary of the data that was
Cupertino Planning Commission
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September 26, 2006
. presented, nor the surveys that were presented tonight. Instead there are emails attached
showing support from nearby residents who are not at the meeting. That was not the maj ority
position of those who spoke at the Parks and Rec meeting.
. He said he was concerned with the discontinuous process and that information was being lost
that was given at each successive meeting.
. He questioned how the process would get the get the correct information from the Parks and
Rec staff to the various Commissions to have some continuity; who actually decided not to tell
you the actual voting record, who decided not to include the public input.
. He said he was told by Mr. Tsachres that he was led to believe by someone in the city that the
extension of one hour shouldn't be a problem; in fact he is upset it is taking so long to get this
on the agenda. Who was this person; how can someone in a city department convey that
message after a unanimous 5:0 vote by the City Council not to change the II p.m. closing time.
Who in the city came up with the neW process we are going through to accommodate this
request when a year ago we told him it was impossible. I would like to know when the Parks
and Rec department are going to concentrate on a cohesive approach to the management of the
resources under their control and stop worrying how to run a profitable nightclub.
. Many years ago the Parks and Rec department told the residents the problems of late opening of
the Blue Pheasant would all be taken care of when the lease terminated and the facility could
then be used for a purpose more in keeping with the objectives of the Parks and Rec charter.
. He requested that the ordinance not be changed, but that efforts be devoted to better define the
existing ordinance so that the tenant and future tenants understand the meaning of an 11 p.m.
closure. He said it appeared that once the doors are closed, people could potentially stay until
daybreak.
. He reported on data he collected in July and August when he visited the parking lot at various
times to assess the use of the parking lot, monitor the arrival and departure of the cars, ascertain
whether or not cars were parked on the street, and assess the impact on the neighborhood
relative to noise and littering.
. He said the current situation is in a fragile balance; the residents acknowledge that it is slightly
better than before, they were living with the current levels of disturbance and would rather not
tip the situation over the edge again.
Mr. Chao:
. Said staff talked to the Parks and Rec Director Therese Smith about the specific issue and it is
felt that the Commission may have been somewhat confused in terms of the process, in terms of
how they should make the motion to carry out their message to the Commission and City
Council.
. The conclusion was that they did make a motion at the end to recommend approval provided
specifically that the two items were addressed, that the noise and the parking implications be
evaluated and potentially at the use permit stage a six month trial period be looked at.
. They wouldn't have made that suggestion if their intent was not to recommend approval of the
ordinance amendment; in a sense they did make a motion to deny; but that was the confusion;
they also made a motion to include those two conditions at the end, and I think that the
conclusion was that the final motion superseded the previous, with the conditions that they
recommend that the use permit be looked at.
Com. Wong:
. Recalled that there were two new commissioners and one senior commissioner who was absent,
and another senior commissioner from another commission had to recuse himself because he
was within the 500 feet.
Cupertino Planning Commission
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September 26, 2006
. He said his interpretation was they were trying to say they did not support the project and
wanted to make amendments to it regarding the noise and the parking, but because they were so
new, they didn't know the proper process.
Chair Miller:
· Expressed concern that information wasn't being communicated between the various committee
and commission meetings and that details from the meetings were not being passed on. He said
it was important to have the detailed discussions and/or actions taken on the various topics in
order that all the committee and commission members were kept well informed on the issues.
Albrecht Schoy, Phar Lap Drive:
. Opposed to the application.
. Submitted a copy of a petition opposing the matter and email correspondence for the record.
. Summarized the questions from speaking with numerous residents relative to the Blue Pheasant
operation.
. He said many residents believe the nightclub operation has proven to be a nuisance as defined in
the Municipal Code and would like some comments on deliberations.
. He said many residents feel that the restaurant owner is neglecting the restaurant business in
favor of the nightclub business.
. Have the claims of the restaurant owner that his business has decreased by 40% ever been
substantiated, and by whom?
. He said that the owner previously stated he would keep the business open regardless if the
closing time was changed; however, the residents are questioning why the city and Parks and
Rec pushing for the conditional use permit.
. He stated that the Elephant Bar can run a viable business with closing at 10:30 p.m. and
questioned why the Blue Pheasant could not with an 11 p.m. closing time.
. He asked if there were other recommended solutions to consider.
Jung Chen, Oakdale Place:
. Said that the restaurant owner signed the lease knowing there was an 11 p.m. closing time.
. He said as a resident, knowing the city was so flexible to adopt code changes, he could
potentially apply for a code change to build a ten story building in a residential area, which he
opined was not the message the city should be giving.
Eileen Murray, Assistant City Attorney:
. Clarified that Mr. Tsachres was not the applicant and he has not submitted an application. She
stated that it is a city application for a code change to make it possible for Mr. Tsachres to make
an application for a code change.
Chair Miller closed the public hearing.
Com. Wong:
. Suggested that there be follow up regarding the dumpsters and delivery trucks on the premises
at 5:30 a.m. and following up with the Code Enforcement department if necessary.
. He expressed concern about how to enforce the closing time, getting patrons to leave the
premises after 11 :00 p.m. and getting the parking lot cleared out with minimal noise.
Ms. Wordell:
. Clarified that the closing time meant people do not have to leave and clear the parking lot by a
certain time. Also, if there are specific problems, they are reported as complaints or
Cupertino Planning Commission
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September 26, 2006
emergencies and there would be a response. If it is a disturbance in the parking lot, it would be
reported to the Sheriffs Department at the late hour.
. If the neighbors have a code enforcement complaint in the evening hours, they can contact code
enforcement the next business day. If it was something that needs immediate attention, they
should call the Sheriff s Department.
Ms. Murray:
. Clarified the role ofthe Sheriffs Department and code enforcement in responding to complaints
about the Blue Pheasant. She said that there have not been many violations since Mr. Tsachres
took over ownership of the facility.
. She noted that although the residents in the area have concerns, they do not report all concerns
to the Sheriff or code enforcement.
Com. Wong:
. Stated the importance of residents documenting any complaints and concerns by calling the
Sheriffs Department in the evening and calling the City of Cupertino. Without the
documentation, it is difficult for the city to convey the message to the owner.
Ms. Murray:
. Reiterated the II p.m. closing means that no customers will be permitted to enter after 11 p.m.
. She reviewed the closure hours for various restaurants in Cupertino.
Com. Wong:
. Said tonight's application is not about the hours, but about the conditional use permit to allow
the applicant at the Blue Pheasant to provide a vehicle or tool in a public recreation zone so that
they can remain open later.
. Said Mr. Tsachres explained his concerns of opening a business. The biggest concern is the city
inherited an establishment that is in a park. The neighbors and emails received strongly support
the historical institution the Blue Pheasant; they serve good food, and there is no problem with
having a lounge there. It would be better suited to be located in a commercial zone.
. Said he was not comfortable
. I don't feel comfortable supporting the request for setting a precedent; having the public hearing
provided good feedback, positive and negative constructive criticism to help improve the
business.
. He suggested that if the owner wants only one hour extension, the city might compensate him
by renegotiating the rents to avoid the city having to find another person to run this particular
business, as the city supports the restaurant.
. Said at this time, during the public hearing and during the testimony and staff report, he did not
support the conditional use permit.
Vice Chair Giefer:
. Said that when Mr. Tsachres previously requested an extension of hours, she supported
extending the Thursday, Friday and Saturday hours. At that time her reasoning was that the city
needs to decide what kind of business was suited for that particular location. The Blue Pheasant
has been the same type of business for many years, and the ownership of the land has changed,
going from private to the city as a park.
. The Blue Pheasant business has remained the same for many years, and the city needs to either
give the business what they need to compete in the open market; in this case it is longer hours
on three specific nights; or say this is not the type of business they want there. We want to have
a breakfast, lunch, tea time, close the doors or we need to allow the tenant to be successful.
Cupertino Planning Commission
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September 26, 2006
· She said she was pleased to see that things improved somewhat since the last time the
application was before the Commission with regards to parking and noise; and said she hoped
the trend continues to work in the residents' favor.
.. She said she supported staffs recommendation because they need to help make the business
successful, or as a city need to change their mind about what kind of business should be located
there.
Com. Chien:
· Asked the Assistant City Attorney what the legal difference was between a nightclub closing
time and a restaurant closing time.
Ms. Murray:
· Explained that in this particular case, the lease was negotiated in a lawsuit and the lease states
"the nightly closing time of 11 p.m." She said it was also defined at a City Council meeting
orally.
· She said that she did not have a written legal definition of restaurant and nightclub closing
times.
· Said that alcohol permits are issued and controlled by the ABC.
Com. Chien:
· After all the input, we as commissioners need to look at this from a business owner perspective
because we are the owners of this building, and when you look at it from that perspective, you
can say it would be good to have the restaurant hours extended so that it can survive; however,
you would never make a business decision jeopardizing your other businesses. Your other
businesses are all of you here today, and those residents of Cupertino. I would never make a
decision that is good for one business but jeopardizes the other, and the problems are clear to
me. People have told us that noise and parking is a problem and I believe that the later it gets,
the worse the problems get. I am convinced that the combination of the late hours and the
problems that exist are caused by the late hours and I don't feel comfortable to extend the hours
which I believe would exacerbate the problems.
. Staff has a responsibility when any applicant comes in for a residential application to present all
the avenues, choices, what can be done and what can't be done. He said he felt the business was
excellent, and because the city is the property owner, they need to work with the owner to see
how it can work. He said however, that he did not feel extending the closing time to 12
midnight would be a solution.
. Said he would not support the staff recommendation for the stated reasons.
Chair Miller:
· The issue here is that the city is running a business which is in conflict with some of the other
objectives of the city, and that is to provide recreational facilities and to make sure that the
neighborhoods are protected and that noise and those kinds of issues are handled.
· Said the last time the application was presented, he voted against extending the hours, for the
reason that the bar did not belong in a Parks and Rec zone. He said he was not changing his
opinion at this point.
· Mr. Tsachres has been doing the best he could to manage his patrons and try to deal with the
parking, and it doesn't seem to be working. There are some other solutions, but it seems like
there are solutions that the city needs to decide if they are ones they want to take, such as
increasing the size of the parking lot or working with Mr. Tsachres to provide valet parking or
doing better policing. Those solutions haven't been brought up or discussed.
· Said based on the presentation tonight, he had no reason to change his previous vote. He said he
would not support staff recommendation to extend the closing hour.
Cupertino Planning Commission
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September 26, 2006
Motion: Motion by Com. Chien, second by Com. Wong, to deny Application
MCA-2006-03. (Vote: 3-1-1; Com. Wong, Chair Miller, and Com. Chien Yes;
Vice Chair Giefer No; Com. Saadati Absent)
Motion: Motion by Com. Wong, second by Com. Chien, to present a Minute Order to City
Council to clarify the lease between the City of Cupertino and the Blue Pheasant
Restaurant regarding 7b, the Use of the Property, stating that the use of the
property shall be consistent with the rules and regulations of the City's PR zoning
district which includes the nightly closing time of 11 p.m." City Council to clarify
if it means that the premises shut down at 11 p.m. and everybody has to exit the
building, or is there another interpretation.
Com. Chien:
. Said he wanted to limit that purview to what goes on inside the building, not the parking lot.
Com. Wong:
. Said he wanted interpretation of what the lease states and was open to the suggestion of adding
something to it.
Vote: 4-0-0; Com. Saadati absent.
Chair Miller declared a recess.
5. MCA-2006-02
City of Cupertino
Citywide location
Municipal Code Amendment of Chapter 14.18 (Heritage and
Specimen Trees) Tentative City Council date: Unscheduled.
Aki Honda, Senior Planner, presented the staff report:
. Reviewed the background of the Municipal Code Amendment of Chapter 14.18 (Heritage and
Specimen Trees) as outlined in the staff report.
. On August 15, 2006 the City Council conducted a preliminary study session on the city's
Heritage and Specimen Trees Ordinance and provided comments to the Planning Commission
to address additional tree protection measures for possible incorporation into the ordinance.
. City Council provided comments to the Planning Commission on topics including tree
protection, approval authority, penalties of unlawful tree removal, noticing, and solar panels
which are summarized in the staff report.
. She reviewed the public comments received including a request to allow tree removal where
trees block solar energy panels, and to request that PG&E reduce pruning of trees and use
special insulated wires to allow trees to be closer to the wires; and to support tree protection in
the city during construction. It was expressed that the tree removal fees were excessive. It was
also requested to consider adding redwood trees, sycamores and black cottonwoods to the
protected tree list.
. The recommendations for additional protected trees were reviewed and are included in the staff
report, Page 5-2 and 5-3.
. She reviewed the penalties imposed by other cities for trees removed without a tree removal
permit approval; and the revisions to the draft model ordinance.
. Discussion items for the Planning Commission to consider include adding or removing trees
from the protected tree list; determining a definition for what is considered unsafe or a dead
tree; decide the approval authority for a tree removal permit; and retroactive tree removal
permits, whether they be done at staff level or at the Planning Commission level; and decide
Cupertino Planning Commission
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September 26, 2006
what type of penalties to be imposed for unlawful tree removals; and what. type of tree
replacement requirements to impose if added as a penalty requirement; consider placing
noticing on trees during application or appeals processes; and to consider allowing tree removal
of protected trees where trees impact a property due to overcrowding and over-planning.
Com. Chien:
. Asked the arborist his opinion on using the width of the canopy, as proposed in the ordinance, to
determine things such as value, rather than using the width of the trunk.
Barry Coates, City arborist:
. The trunk diameter at 4-1/2 feet above grade is the standard used by arborists all over the world,
and since it is a standard used everywhere and the trade understands it, and it is the first item on
which a tree's value is calculated, that should always be included. However, that doesn't mean
that you couldn't add the canopy dimension as part of your evaluation; the trunk diameter is
merely an easily accessible definition of tree mass. It is not simple to measure the canopy mass,
but it is simple to get to the trunk.
. The trunk diameter measurement is designed to evaluate the size of the tree. Adding the canopy
mass to it as part of the evaluation is a very valid idea, because the canopy represents the tree's
value to the city and the neighborhood more than the trunk diameter does.
. Said the biggest deterrent for cities to use to prevent people from cutting trees is regulations and
fines. If somebody cuts down a tree and the newspaper publicizes what is done about it, it is an
effective deterrent for illegal tree cutting.
. Regarding the criteria used for adding trees to the list, he said that the arborist evaluates the size,
its health, its structural condition, whether it is damaging pavement or a structure and all of
those go into an equation yielding an opinion. For example a Coast Live Oak that is a beautiful
specimen but is structurally a disaster, they may recommend its removal even though it is a
healthy specimen. That is happening in Saratoga now and a lot of controversy about it, but if
the tree is hazardous, whether it is healthy, is irrelevant. There is a definition of the different
native oak species in the document; previously just native oaks were protected.
. Said that he felt educating the public on the process was important. He suggested a brochure, or
a door hanger about cutting and removing trees that could be distributed when someone
purchases a home or submits an application to reconstruct a home in Cupertino.
Com. Wong:
. Discussed the fee schedule and said the high cost may be a deterrent to applying for a permit to
cut the tree. He questioned if having a lower fee would encourage them to follow the process.
Barry Coates:
. Said that in Saratoga, many times people will cut the tree down and pay the fine. The fines are
not large enough to be relative to the value of the home or their opinion of the value of the tree
being gone are not sufficient to prevent them from removing trees. He said he was not sure if
having a lower fee would encourage the people to apply for a permit to remove the tree.
. Provided a history of his background.
Vice Chair Giefer:
. Said she liked native trees because they thrive in the area, use less water, and produce less
pollen. She said she tries to rectify trees that have come before us both here and planning as
well as the DRC where they do landscape plan reviews; and is attempting to balance between
native species and/or problematic species in Cupertino. She asked for the arborist's opinion on
different species.
Cupertino Planning Commission
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September 26, 2006
Barry Coates responded to Vice Chair Giefer's questions regarding a variety of trees:
. In response to Vice Chair Giefer's question about Washitonia Fan Palm trees, he said that both
Mexican and California fan palms come from very specific micro sites, they are always in a
desert and in an area and in a micro site that is wet. They are not a drought tolerant plant; they
always only appear in those locations; they would never appear in clay soil; or in an area that is
dry. You can say that about many plants, but if asking if they are appropriate here, he said you
would never see a palm growing naturally in this location.
. Deodora Cedar is native to the Himalayas. However, Deodora Cedar is very drought tolerant, is
extremely long life, and very useful here.
. Most conifers will produce pollen which are the primary sources of people's allergens. People
see yellow acacia flowers and assume they are the cause of their allergens. A government
research project in Australia demonstrated that the acacias were not usually the cause of most
people's allergens; pine trees, cedars, cypress all are dominant.
. Ash trees are problems; they are Evergreen Ash from Mexico and it is a huge tree, very brittle
and very difficult tree to prune. It is a nightmare for an arborist. They are fast and very
destructive of pavement. Some Ash trees are very useful but that one is a real problem.
. California Pepper is from Peru; in Australia it is called Australian Pepper; in South Africa it is
called the South African Pepper. It is not from California. Whether or not it is invasive,
depends on the climate. Near a water course, they do tend to reseed and they can become a
nuisance. Some places in Southern California, weather prohibitive; but they aren't a problem in
that respect.
. Madrones are a California native, but only in very specific areas. It is all through the Santa
Cruz mountains, but the largest Madrone in the world is in Oregon, not in California. They are
dying in the Santa Cruz mountains from a disease. It is not a tree you would plant and expect to
grow in your garden.
. Relative to affixing something to the tree to designate that it is a protected tree, he said in doing
tree surveys, a one-half inch nail is used because it goes only into the bark, not into the vascular
tissue. The tree grows around that and actually pushes it off eventually. What is done in most
botanical gardens is to use a longer nail with a spring on it, with the label on the outside of the
spring; the head of the nail holds the label on and then as the tree grows in diameter, it
compresses the spring and the label lasts for a much longer time, from 5 to 20 years depending
on the species of the tree.
. He explained the reasons for adding the Coast Redwood and Incense Cedar trees to the list,
because they are large native California trees, relative low maintenance and long life. The
Incense Cedar is also a native tree from the Sierras, and is a large, useful tree.
Chair Miller:
. Noted there was a recommendation from the city naturalist to include the Western Sycamore,
the California Bay Laurel, the Black Cottonwood, the White Alder and the Box Elder Acer. He
asked the arborist for his opinion on adding those trees.
Barry Coates:
. He said he did not agree with the latter three, and noted they would be found only naturally
growing in streambed areas.
. He said that it is not very often that you encounter that type of situation when you have to make
a decision about preservation of trees, but they are all short lived; if you are going to preserve
trees, hat is normally done is to chose trees that are long lived so that the designation you have
given, helps contribute to a longer life city forest. The California Bay is a separate problem
because where you have California Bay going through the canopies of Coast Live Oaks or other
oaks, the Bay will eventually ruin the oak trees; it outgrows them and as it grows above their
canopy and begins killing the oak. Further, California Bay is the dominant supply of spores that
Cupertino Planning Commission
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September 26, 2006
cause sudden oak death; so there are cases where Bay should be removed for the benefit of the
surrounding Oaks.
. The last recommendation is the Western Sycamore, which is one of the most valuable deciduous
native trees, and wherever there is a stream area or wet area, it will likely be the most important
tree you have. It should be preserved; however, it is so fast growing it is not a tree normally
preserved at a small diameter; it would almost be equivalent to a redwood in the growth rate and
you might wish to preserve that at a larger size, because small ones are very young.
Chair Miller:
. Stated that the arborist recommended more stringent mInImUm tree size requirements of
between 6 and 8 inches; yet on the Coast Redwood and the Incense Cedar the proposal was for
12 to 15 inches. He asked for an explanation for reducing the size of the trees.
. In terms of criteria for putting a tree into this protected category; is it native or indigenous to the
area.
Barry Coates:
. Explained that it was a matter of how fast that species grows. One tree at 6 inches diameter
could be 50 years old; where a Coast Redwood of 6 inches diameter might be a year or two; a
12 inch Coast Redwood might be 6 to 10 years old. The attempt is to try to protect trees of
approximately the same age as each other. Once they reach some stage of maturity, it could be
protecting them.
. If it is important to your skyline, if as you look down the street you see a few of these which rise
above the dominant trees, they deserve to be protected because that is what gives you the
skyline, and if there are native trees that are reasonably long lived, they probably should be
protected because they are native trees. He said he was quoting the logic behind those decisions
by most cities.
Chair Miller opened the public hearing.
Carol Bunn, resident:
. Said there was a Black Walnut tree on her property that was planted inadvertently and its
canopy is above her house. She asked if would be considered protected because of the canopy,
or because it is a good tree. It is causing some problems for her neighbor.
. She asked if the cost of applying for a permit goes into a fund that people in need could draw
from to get their permits.
Ms. Wordell:
. Said the Black Walnut tree is not protected, the only way it would be protected is if in the
course of a subdivision or use permit, that particular tree was protected.
. She said it was wise to call the Planning Department to have them check to see if a specific tree
is protected even though it is not on the list of protected trees.
. Regarding the fees, the fees go into the general fund and they are not a resource.
Donald Anderson:
. No longer present at the meeting.
Syd Jacobson, Property Manager of St. Jude Church:
. Said he was opposed to the process for tree removal.
. Questioned why there were so many different classifications of trees.
. Said there was a 90 year old Deodora Cedar tree on the property that died. They were informed
they had to pay a $3,000 fee, which was reduced. He said he opposed the fee charged. He said
Cupertino Planning Commission
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September 26, 2006
they also had a heritage tree on their property; a Coulter Pine that leans over at 18 degrees and
drops 5 pounds of pine cones. The arborist informed them that they would soon have to cut it
down. The arborist also suggested they rope off the parking lot in places where it is becoming
a danger.
. He said that the church has planted in excess of 100 trees on the property.
. There should be some specific guidelines when the tree is dangerous and removed, other than a
person's opinion.
. Said he was not previously aware that the city had a staff arborist.
Ms. Wordell:
. Clarified that the city arborist is called upon when someone applies to remove a tree or if
somebody is applying for a development and a tree assessment is needed. The city arborist is
not available for people to come out and look at their trees or to ask questions; the arborist's
services are related to a development application.
Robert Levy, Wilkinson Avenue:
. Reported that recently on a Friday afternoon about 4:45 p.m. the city tree in front of his home
dropped a large branch leaving part of it hanging and the remainder covering the parking strip
on the sidewalk. He said he was unable to contact any staff in the city and when he called the
Sheriffs non-emergency number, he was told that he was responsible for clearing the sidewalk
and the parking strip. On Monday he was able to reach a street tree maintenance group.
Because the Sheriff's Department informed him that he was responsible for the tree, he cut the
branch and put it in the street for the city to pick up on Monday.
. He said he had 8 trees on his property and went out and purchased a new blade for his chain
saw. He said that he did not know which of the trees on his property will be on the protected list
with the upcoming changes, and he did not want trees that he planted to grow and threaten the
safety of his family and home.
Louise Levy, Wilkinson Avenue:
. Said she did not see anything in the proposed ordinance that states which trees required a
permi t.
. Said that the $3,000 fee for an application for a tree removal permit was exorbitant, and
resembled a fine for having cut down a tree rather than an application fee.
Gail Bower, resident:
. Said she understood it would apply to the city as well as residents; hence any city trees would
be a part of this program.
. She requested that where feasible and safe, that dead trees be kept for habitat purposes.
. She noted that in the proposed 2006-07 budget, the tree maintenance for the city has been
deferred for about 4 years, and recommended including maintenance by the city so that they are
not only being protected, but maintained so they don't have to be removed.
. Said she supported adding more trees to the protected tree list as it would add variety. She said
she was in favor of keeping all the currently proposed trees on the list also.
. The model ordinance No. 10 states that the Community Development Director would be able to
deem a tree dead and allow removal, which appears to be a broad approval given to one person.
She suggested that an arborist's opinion be required in addition to the Director.
. Said she requested by email a heritage tree list with a map of their locations.
Ms. Honda stated that the list was available form the Planning Department.
Cupertino Planning Commission
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September 26, 2006
Julia Tien, Cupertino Road:
· Referring to Mr. Coates' comment about looking at the viewscape of the city in terms of which
trees to keep, one item is to look at the density of a property's plantings. She pointed out that
Coast Live Oaks are very large trees and not too many can be planted on a property in the city.
· In addition to looking at the species and the size, consideration should be given to how many are
on the property in deciding which to remove.
James Welsh, Commercial Tree Care, San Jose:
· Said the high cost of a permit is a deterrent for honest people to come in and apply for a permit
for tree removal.
· Said that San Jose, Sunnyvale and Mountain View did not have fees for tree removal and other
cities had low fees.
· He said there are dangerous trees that may fall and cause deaths of people.
· He said there needs to be consistency in the size of the trees and notification to neighbors needs
to be clarified and streamlined. Eucalyptus trees are a major problem; some cities will assist
with the permits just to get them removed.
· Relative to using the size of the tree to determine if it should be removed, he said the size of the
tree is determined more on the amount of water they need.
· Questioned the reason for a staff arborist. He said he had four certified arborists on his staff and
he felt that any certified arborist should be able to write an arborist report.
Jennifer Griffin, Rancho Rinconada resident:
· Said one of the reasons Rancho Rinconada annexed to the city was for the protection of their
street trees, which are valuable to the neighborhood.
· Said she wanted to ensure that street trees are protected by the city; they are under a special
category and it may need to be explained to residents, exactly what a street tree is.
· Cupertino has always loved its trees and as a prominent city in the Bay Area, Cupertino should
continue to do everything possible to protect its urban and suburban forests. Trees provide
valuable canopy cover and make Cupertino a comfortable city for walking. Mature tree cover
allows city residents to feel they are in the country during their busy lives.
· She commended the city for building fences around trees to protect them during construction,
and said the city has done a good job of replanting their street trees and was assured that it will
continue.
· She said that posting notices on the trees that are going to be removed was important.
· She asked if there was a designation that any tree over a certain size is protected?
Jan Stoeckenius, Cupertino Road:
· Said that he and his wife sent an email with comments.
· Said they supported the concept of protecting the trees;
· He said they initially were concerned with the move down to six inches on Coast Live Oak,
since they had a large number of Coast Live Oak trees on their property, and they grow to six
inches quickly. (Chair Miller clarified that Coast Live Oak was 8 inches)
· Coast Live Oak trees grow quickly and he was concerned that there would be a large number
under the ordinance when they are not difficult to replace.
Chair Miller closed the public hearing.
Chair Miller and Com. Wong summarized the issues:
· Cost - the issue of goal congruence; which is not to discourage people from filing an
application, but discourage cutting the trees down and coming in after the fact. Perhaps the fee
Cupertino Planning Commission
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September 26, 2006
· should be lowered for the application, and increase the fee if they cut the tree down without a
permit.
· How to define when a tree is dangerous and needs to be removed.
· How to define what size of tree; heard several different approaches.
· List of trees to be added. (They should be indigenous and in some way they helped define the
skyline, but the others didn't make sense for a number of reasons)
· What is criteria for adding trees to the Heritage list (why 4 inches vs. 6 inches?)
· Cities of Mountain View, Sunnyvale, and San Jose have no costs for permits for tree application
(What is their cost recovery)
· What is the rationale for the different fees? What is the breakdown of fees.
· How was the replacement plan criteria determined.
· What is the cutoff point for fines; when does it become excessive?
· Any other fees involved, such as fees for arborist examining the tree?
Com. Chien:
· Said he felt it was unreasonable that the church had to pay a $3,000 application fee to remove
the trees.
· He commended the fine work done and said more is to be done, with having it in writing so that
the residents have a better understanding.
Vice Chair Giefer:
. Asked for clarification of "Heritage" tree vs. "Protected" tree
Ms. Murray:
· Clarified that the palm trees on Palm Avenue were heritage trees, although palm trees are not a
protected species.
· The heritage trees are specific trees that have some historical value to the city and does not
relate to its particular species.
· She said that a specific oak tree could be a heritage tree if it is designated.
Vice Chair Giefer:
· Said she would like to see what is not included, because the landscape trees were discussed and
she was not certain she agreed with the list. The tree list needs to be expanded, with the
California Pepper tree added, as well as other trees. The audience had questions about street
trees also. It needs to be stated what is covered and what is not.
. Said one of her goals for the tree policy is to have an incentive for good behavior; and penalize
people for not being out of compliance. She said that a tree removal permit fee of $10 and a
retroactive tree removal permit $9,000 may be appropriate. Other cities are imposing fines and
court cost recovery and she said she agreed with Mr. Coates that the way to get people to stand
up and pay attention is if people get caught and the city imposes fines on them. She said that
providing education and adjusting the fees is what it will take for people to stop hiring itinerant
tree cutters because they don't want to pay the fee and they can pay $200 to cut the tree down.
. She said there was more work to be accomplished. She expressed concern about the canopy
equation because of crowding.
Mr. Coates:
· Said that the Big Leaf Maple should be included on the list since it is a useful tree, long lived
and is indigenous to the immediate area.
Com. Wong:
· Said he wanted to know the criteria used for adding trees to the heritage and protected list; and
Cupertino Planning Commission
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September 26, 2006
was concerned that if too many are added to the list, it may become cumbersome to enforce. He
said they should be careful when adding anything to the list.
Motion: Motion by Com. Wong, second by Vice Chair Giefer, to continue Application
MCA-2006-02 to the October 24, 2006 Planning Commission meeting.
(Vote: 4-0-0; Com. Saadati absent)
OLD BUSINESS:
None
NEW BUSINESS:
None
REPORT OF THE PLANNING COMMISSION:
Environmental Review Committee:
. Vice Chair Giefer reported that Vallco Shopping Center requested approval for the 4th floor
garage exceeding 32 feet; the ERC felt it was a mitigated impact and it was agendized for the
Planning Commission.
Housini! Commission:
. Meeting was cancelled due to lack of business.
Mavor's Monthlv Meetini! With Commissioners:
. No report.
Economic Development Committee:
. Com. Chien reported that the North Vallco study area was discussed.
. Interviews are being conducted with businesses leaving Cupertino to talk about conditions they
experienced while doing business in Cupertino.
. Discussed upcoming projects.
. Interviews have been taking place for the Redevelopment Manager.
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT
. No additional report.
Submitted by:
October 10, 2006 Planning
ADJOURNMENT:
~
Elizabe
. Ellis, Recording Secretary
Approved as amended: October 10, 2006