PC 01-23-07
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
CITY OF CUPERTINO PLANNING COMMISSION
AMENDED MINUTES
6:45 P.M.
TUESDAY
JANUARY 23, 2007
CUPERTINO COMMUNITY HALL
The Planning Commission meeting of January 23, 2007, was called to order at 6:45 p.m. in the
Cupertino Community Hall, Torre Avenue, Cupertino, California, by Chairperson Marty Miller.
SALUTE TO THE FLAG
ROLL CALL
Commissioners present: Chairperson:
Vice Chairperson:
Commissioner:
Commissioner:
Commissioner Absent: Commissioner:
Staff present: City Planner:
Senior Planner:
Associate Planner:
Assistant City Attorney:
Marty Miller
Lisa Giefer
Cary Chien
Gilbert Wong
Taghi Saadati
Ciddy Wordell
Aki Honda Snelling
Gary Chao
Eileen Murray
Election of Chairperson:
Motion: Motion by Com. Chien, second by Com. Wong, to nominate Com. Lisa Giefer to
serve as Chairperson. (Vote: 3-0-1, Com. Giefer abstain; Com. Saadati absent.)
Chairperson Giefer chaired the remainder of the meeting.
Election of Vice Chairperson:
Motion: Motion by Com. Wong, second by Com. Miller, to nominate Com. Cary Chien
as Vice Chair. (Vote: 3-0-1, Com. Chien abstain; Com. Saadati absent)
Desil!n Review Committee Chair and Member:
As mandated by Code, the Vice Chairperson of the Planning Commission is designated to
serve as the Chairperson of the DRC. Vice Chair Cary Chien will serve as the Chairperson
of the DRC for 2007.
Motion: Motion by Chair Giefer, second by Com. Miller, to nominate Com. Gilbert Wong
to serve on the DRC Committee. (Vote: 3-0-1; Com. Wong abstain; Com. Saadati
absent)
Economic Development Committee Representative:
Motion: Motion by Com. Wong, second by Com. Chien, to nominate Com. Marty Miller
to serve on the Economic Development Committee. (Vote: 3-0-1; Com. Miller
abstain; Com. Saadati absent)
Cupertino Planning Commission
2
January 23, 2007
Housine: Commission Representative:
Motion: Motion by Com. Miller, second by Com. Wong, to nominate newly appointed
Com. David CaRRetta Kaneda to serve as Housing Commission representative.
(Vote: 3-0-1; Com. Saadati absent)
Environmental Review Committee Representative and Alternate:
Motion: Motion by Com. Wong, second by Com. Miller, to nominate Chairperson Lisa
Giefer to serve as Environmental Planning Commission representative.
(Vote: 3-0-1, Chair Giefer abstain)
Attendance at Mavor's Breakfast (meeting on second Wednesday of each month, at 8 a.m.)
Lisa Giefer - February 14, 2007
Cary Chien - March 14,2007
Gilbert Wong - April 11, 2007
Marty Miller - May 9, 2007
David CaRRetta Kaneda - June 13, 2007
Repeat Order
Chair Giefer:
. Expressed appreciation to Com. Taghi Saadati whose term expires January 31 S\ for his five
years of service as a Planning Commissioner as well as many other contributions he has made
to the community.
Coms. Wong, Miller and Chien:
. Commended Com. Saadati for his contributions and excellent technical advice to the Planning
Commission and service to the City of Cupertino.
APPROVAL OF MINUTES:
Minutes of the January 9, 2007 Planning Commission meeting:
Motion: Motion by Com. Chien, second by Com. Wong, to approve the January 9, 2007
minutes as presented. (Vote: 4-0-0; Com. Saadati absent).
WRITTEN COMMUNICATIONS: Chair Giefer noted that there were several items received
pertaining to agenda items.
POSTPONEMENTSIREMOV AL FROM CALENDAR:
3. U-2006-01, ASSA-2006-03,
TM-2006-03, TR-2006-04,
Z-2006-01 (EA-2006-03)
Kevin Wu (pacific Resources
Development, Inc.) 10300-
10400 N. Tantau Ave.
Use Permit and Architectural and Site Approval to
demolish two office buildings and construct 125
single-family attached residential units, .8-acre park,
common open space and other site improvements.
Tentative Map to subdivide a 9. 13-acre parcel into
125 residential parcels Tree Removal and replanting
for 125-unit, single-family attached residential project.
Rezoning ofa 9.13-acre parcel from Planned Industrial
Park (PMP) to Planned Residential (PR) Request
postponement to the February 27, 2007 Planning
Commission meeting. Tentative City Council Date:
March 6, 2007.
Cupertino Planning Commission
3
January 23, 2007
Motion: Motion by Com. Wong, second by Com. Chien, to postpone Item 3 to the
February 27, 2007 Planning Commission meeting. (Vote: 4-0-0; Com. Saadati
absent)
ORAL COMMUNICATIONS: None
CONSENT CALENDAR: None
PUBLIC HEARING
1.
EXC-2006-14, TM-2006-12,
V-2007-01; Jitka Cymbal
(Westfall Engineers)
21871 Dolores Ave.
Exception to allow a 5-foot side yard setback.
Tentative Map to subdivide a .46-acre parcel into two
parcels of9,685 sq. ft. and 9,686 sq. ft., respectively.
Variance to allow a 50-foot lot width, instead of the
required 60-foot width, for two proposed parcels.
Planning Commission decision final unless appealed.
Postponed from the January 9, 2007 Planning
Commission meeting.
Gary Chao, Associate Planner, presented the staff report:
. Reviewed the application for tentative map, variance and exception to allow 5-foot yard
setbacks on two parcels located on 21871 Dolores Avenue in a Rl-7.5 zoning district, as
outlined in the staff report.
. He reviewed the two major discussion points which include conformance with the R1
Ordinance for substandard lot widths and 5-foot side yard setbacks, and tree removal and
retention.
. Relative to the lot width, staff supports the variance request and feels that the variance findings
for the lot width can be made. Staff also supports the side yard exception request. Relative to
building interface issues, the applicant would be required to apply through the design review
process to ensure that the position of the house, articulation and recess are maximized to
minimize any potential interface issues with adjacent neighbors.
. Staff recommends that the two Deodor Cedar trees be preserved and one 36 inch box Redwood
be planted to replace the removed redwood tree. Staff is also requiring that the applicant work
to with staff in preserving as many trees as possible.
. Staff recommends that the Planning Commission approve the tentative map, variance and
exception applications in accordance with the model resolutions.
. He answered Commissioners' questions relative to the history of flag lots.
. Explained the rationale behind requesting the applicant to replace the removed redwood tree
with another tree. He said it was standard practice to replace fairly large trees that are not
specimen trees, to keep up the urban forest. Through the subdivision process there are
examples of where the city has required them to protect and record trees that are not on that list
of protected trees, but they may have other attributes that are important.
Ciddy Wordell:
. Said they did not normally encumber a subdivision with requirements for a residential
development, it should be related to the subdivision, and could be done through the design
reVIew.
Jitka Cymbal, Westfall Engineers:
. Said they considered both side by side lots and the flag lot.
. Besides the issues which are strictly planning issues relating to length of driveway for a flag
Cupertino Planning Commission
4
January 23, 2007
lot, we were looking at potentially creating a greater impervious surface area and there are
some drainage issues because the lot slopes away from the street. Putting the house all the way
in the back with the long driveway, not only would create greater impervious surfaces because
the driveway is very long, and has to have a turnaround, but we are draining it to the back
unless we fill the lot. That was another factor that went into the design and actual request for
the side by side.
Com. Miller:
. Said that whether it is side by side or flag lot, the drainage issue still has to be addressed.
Jitka Cymbal:
. Said with side by side lots, the homes are closer to the street; they can be raised enough to have
the front of the homes and most of the roofs draining onto the street which is not impacting the
people in the back. It also provides a large area in the backyard for onsite retention. It creates
possibilities which the flag lot does provide; it is not impossible, but is more difficult.
Chairperson Giefer opened the public hearing.
Cindy Hsu, Dolores Avenue:
. Supports the side by side split for safety reasons; said the lot in the back is very dangerous.
. Said that the fire department prefers side by side lots, not flag lots.
. Supports the application.
Jennifer Griffin, Rancho Rinconada resident:
. Said the lot should be flag lot and a 60 foot side lot; there are a number of issues. When there
are two SO-foot wide lots you are creating substandard lots in a residential community.
Unfortunately when you do this, the resulting lots begin to look like a planned development
area with high density housing. This is not a planned development area, it is a suburban
residential area.
. Five foot side yard setbacks are not appropriate in this area; the homes should be made smaller
if you do have two SO-foot wide lots.
. How many of these potential lot splits can occur in Monta Vista; are we setting a dangerous
precedent of having the creation of substandard lots. Also, if doing SO/SO side by side, require
submittal of plans for the potential homes to see what they look like. Los Gatos requires this
when the house is going down; you have one year to build and you have to submit plans.
Shu-Jen Liau, Cupertino resident:
. Opposes the application.
. Resides on a flag lot in the front house.
. Concurred with Jennifer Griffin that safety was not the main concern; the neighborhood is safe.
The concern is the lack of privacy with a S foot setback as the homes are too close together.
. Prefers flag lot configuration, not side by side.
Johnny Wang, Cupertino resident:
. Opposes the application.
. Resides on a flag lot in the back lot.
. Emphasized the neighbors' concern about privacy.
. Said he would like to see consistency of the flag lots in the neighborhood.
. Asked the Planning Commission to continue to enforce R1 ordinance.
Cupertino Planning Commission
5
January 23,2007
Tracy Hsu, Dolores Avenue (Owner of proposed homes)
. Said the reasons they chose the side by side division was twofold: drainage because the rear
lot entry is a lot lower than the front and fire safety because the fire trucks would have
difficulty to reach the rear lot.
. Said she previously resided at 21869 Dolores Avenue which is the adjacent neighbor and is
aware of the problems with the flag lots.
. Asked the Planning Commission to approve the side by side configuration.
. The house size would be about 3600 square feet plus the two car garage.
. Supports the application.
Rafael Gomez, Dolores Avenue:
. Resides across the street opposite the 21871 address.
. Suggested a difference look for the neighborhood as the builder has built five large identical
big houses, one in front of the other.
. Supports application for side by side configuration for aesthetic reasons.
Rhoda Fry, Cupertino resident:
. Opposes application.
. Said that Cupertino's annexation of Monta Vista has blighted Monta Vista.
. It sounds like splitting the lots down the middle is not a good solution, nor are flag lots.
Anybody think of not doing it??
. Prior to it being a rental unit, it was occupied for a long time by the owner.
Sue Jane Han, co-owner of parcel:
. Said that in the past she resided in the back lot of a flag lot and it was very difficult turning the
cars around because of limited space of the garage; and on occasion if there were other cars in
the area, her father hit the fence.
Chair Giefer closed the public hearing.
Gary Chao:
. Relative to the fire department's position on flag lots, they don't necessarily have to access the
site to fight fires in the back area; they can drag their lines out. They would prefer to have easy
access to the properties.
Gary Chao:
. Said the fire department reviewed the proposal, and supports the project.
Com. Chien:
. In the General Plan, Policy 2-23 under one of the strategies for this policy, it says "create flag
lots in proposed subdivisions when they are the only reasonable alternative". He suggested
that it state "discourage flag lots". He said that Cupertino is a city that encourages
neighborhood compatibility and integration. He asked staff to elaborate on how the city or
staff interprets the policy.
Ciddy Wordell:
. Said the intent was to make it stronger, to see fewer flag lots. It is created only in unusual
circumstances, when there is not a reasonable alternative.
Cupertino Planning Commission
6
January 23, 2007
Gary Chao:
. If doing a flag lot configuration, the lot is 100 feet wide, usually the panhandle portion would
be 20 feet, so the remainder would be 80 feet in terms of the width of the smaller lot in front.
Com. Miller:
. My concern is that these are very large lots, 193 feet long by 50 feet wide; if we do it this way,
and on those lots you can build a house in excess of 4,000 square feet on each of them, and we
are proposing to build these fairly significant sized houses which will be long and narrow and
in fact impact the neighbors. They will have an impact on the neighbors from a potential
privacy standpoint.
. If we go with the flag lot configuration, the lots lose some width; the flag is not considered in
the calculation; the eventual houses will be smaller and the separation between the houses and
the neighbors will be larger.
. I understand the issue about drainage, we didn't clarify what the grade is from front to back;
but I also believe there are solutions to this unless there is a very severe grade, and even if
there was, there are still solutions.
. (staff response: 365 elevations at the streets as opposed to 363 at the rear property line, so
about 2 or 3 feet variance)
. I assume the grade difference is the same for the neighboring houses as well.
. My feeling is because of the large size of the house that the applicant can put on each of the
subdivided lots, I would rather see the flag lot configuration and I don't think that the drainage
issue is that significant to address.
Com. Wong:
. Supports the tentative map; but not the variance. I agree that the lot is big enough to be
subdivided, and the reasoning at the time we went through the R 1 to allow the exception for
the five feet was mainly for an existing parcel that was substandard and had under 60 feet.
Here we have an opportunity to subdivide a lot, but we are subdividing the lot into a
substandard lot and that concerns me.
. I see the exception to be used in special cases where in Rancho Rinconada where we have
small lot and we only have a few in Monta Vista, but on this particular lot, you do have a way
to have a standard lot by doing a flag lot.
. Relative to safety concerns and concerns about small children, there are already five or six flag
lots on that block, and many other flag lots in the neighborhood.
. What makes Monta Vista special is the single family Rl lots, and if we can keep the
neighborhood in tact, to have a standard lot, I prefer to go that way. On some of the lots you
cannot, because they were already long and narrow, but on this particular I feel this is
important for the compatibility to be consistent, not to have substandard. I am concerned about
that 50% that it will be a burden on the property owner to have pavers included.
. I agree with the neighbors regarding the density; I think that privacy has been a strong concern
with the neighborhood and I also think that Monta Vista is known for single family homes and
to respect the 15 feet on both sides, maybe 5 or 10 or the equivalent of 15 feet together.
. He said he would also like further discussion on Policy 2-23 and clarification on where staff is
coming from.
. Said he supported a flag lot configuration.
Com. Chien:
. Thanked the speakers for their valuable input; in such an application there are always two sides
to that debate, and the city had to look at what is in the public interest.
. Said the policy on flag lots, while the intent may be clear, is poorly written because the first
words regarding flag lots written in the General Plan are "create flag lots when they are
Cupertino Planning Commission
7
January 23, 2007
reasonably compatible" They are in this case, and compatibility is an issue that has been
discussed when looking at single family homes and has been an issue of contention; and many
of the Planning Commissioners have worked to try to take compatibility out because it is very
subjective.
. Where the public interest is concerned, the city is always interested in neighborhood
compatibility. The Commissioners are asked to weigh that public interest vs. private interest,
and he felt in this case the private interests of the right of an owner to build on their property
outweighs that of neighborhood compatibility.
. Said he supported the application as the SO/SO split.
Chair Giefer:
. Said the lots meet the criteria for subdivision which she did not have an issue with; but
questioned how to subdivide it.
. I think that we have solved drainage issues in this neighborhood in other ways with dry wells
and other swales and pavers to help with runoff and absorption.
. The dominant configuration for the area of Dolores Avenue is the flag lot configuration. She
said she supported a subdivision for a flag configuration because it also has the least
requirements in terms of variances.
Jitka Cymbal:
. Said the owner would prefer not to have flag lots.
Chair Giefer:
. Clarified for the applicant that there was verbal consensus that the preference was for flag lot
configuration; that the Commission could deny the tentative map, take a vote and have the
decision appealed to the City Councilor continue the item to a later date.
Jitka Cymbal:
. Said there were two variance requests; one for the lot width and one for the setback which
creates the privacy issue. Asked if there would be a chance of getting the lot width without
getting the setback.
Chair Giefer:
. Said that based upon what was heard, it was not likely that it is going to pass.
Ciddy Wordell:
. Said it is physically possible, but would be up to you whether you want it that way.
Chair Giefer:
. We could say you could have a SO foot width; we could give you a substandard lot size and
then enforce our standard side setbacks, if there were members of the Planning Commission
who agreed to that.
Jitka Cymball:
. Said that is what the owners would prefer.
Com. Wong:
. Said he would prefer a continuance, since he needed to see the plan and could not make a final
decision this evening.
Cupertino Planning Commission
8
January 23, 2007
Chair Giefer:
. Said that the applicant would prefer to come back with SO/SO side by side substandard with
smaller house.
Com. Wong:
. Said he was concerned about substandard.
Motion: Motion by Com. Miller, second by Com. Wong, to deny Application
TM-2006-12, V-2007-01, and EXC-2006-14 (Vote: 3-1-0; Com. Chien No; Com.
Saadati absent)
Ciddy Wordell:
. Noted that the decision could be appealed to the City Council within 10 calendar days.
2.
MCA-2006-02
City of Cupertino
Citywide Location
Municipal Code Amendment of Chapter 14.18 (Heritage
and Specimen Trees) Continued from the December 12,
2006 Planning Commission meeting. Tentative City
Council Date: February 20,2007
Aki Honda Snelling, Senior Planner, presented the staff report:
. Reviewed the background of the item which was a continuation of the Municipal Code
Amendment of Chapter 14.18 (Heritage and Specimen Trees) and reviewed the discussion held
by the Planning Commission as outlined in the staff report.
. At the December 12, 2006 meeting the Planning Commission recommended a draft ordinance
be provided incorporating staff's recommendations for simplifying the ordinance by allowing
the Director of Community Development to make determinations on tree removals when not
associated with a development application and by providing prescriptive measures for
replacing trees in conjunction with tree removals. Staff also recommended that retroactive tree
removal permits be handled by the Community Development Director to simplify the process.
. She reviewed the model ordinance which incorporated staff's recommendations relative to
approval authority, noticing, penalties, tree replacements, protected tree size, specimen tree
list, rear yard tree removals, tree management plan, and general clean up/clarification items, as
outlined in the staff report.
. Staff recommends that the Planning Commission recommend that the City Council approve the
staff recommended draft model ordinance and recommend establishment of the specific
retroactive tree removal fee.
Com. Chien:
. Asked for an explanation of the logic behind exempting backyard trees.
Aki Snelling:
. Said it was a recommendation by the Planning Commission at the last meeting to take into
consideration that the trees in the rear yard may not have the visible significance that a tree in
the front yard may have, so that some ability may be given to allow the removal of protected
trees in the rear yard that may not be very significant to the community. Also some rear yard
trees may infringe upon some of the adjacent neighbors, the canopy of the trees might, the root
systems they may become over-burdensome that it may not allow for some property owners to
plant gardens in the rear yard; it may create too much shading.
Com. Chien:
. One of the ways a tree becomes protected in addition to being a protected species is if they
Cupertino Planning Commission
9
January 23,2007
serve a privacy purpose. Many times as experienced last year, people often don't know if a
particular tree is there for a privacy reason. He asked staff to explain how one might go about
finding out if a particular tree is protected if it is not one of the protected species.
Aki Snelling:
. We do require that any protected trees be recorded on the property. With the draft ordinance
presented, it does require recordation of all protected trees. Currently, if it is a required
privacy protection, such as Rl application, it is still required to be protected, so it is recorded
on the deed of the property. In addition they can also come to the city for verification.
. Said staff was prepared to take on the additional work of managing a new tree ordinance,
which would involve more staff time.
. The in-lieu replacement trees are based upon purchase, cost and installation; a number of
nurseries in the area were called for verification.
Eileen Murray, Assistant City Attorney:
. It is going into a tree replacement fund for other trees in the city. Relative to the legality of it,
it is not a tax and not an assessment; the in-lieu fee is optional. It provides someone another
choice if they do not want to put the tree on their property; they can make the payment for a
tree somewhere else in the city. It is an option for the property owner. Many cities have an in-
lieu fee.
Com. Wong:
. Explained that with a recorded deed of trust, when you buy a home you have to sign that you
did see the deed of trust, and when the homebuyer misplaces his, they can go to the County
offices to search the records.
. As Com. Chien said, there is a current policy that is not working and the reason we are
listening tonight is the City Council and Planning Commission has a concern and we are trying
to streamline it.
. Said he was not confident that the particular plan would work, and asked staff to explain what
kind of mechanism or things they were comfortable with so that this particular ordinance will
work better than the other one. He said his main concern is enforcement and education. How
would it work better than the previous ordinance in terms of enforcement.
Ciddy Wordell:
. Said that one major direction of the ordinance is that it is easier and less onerous to property
owners to seek a permit before cutting down the tree, and more onerous for them to get a
permit after cutting a tree. It provides incentives for people to apply before they cut the tree,
which is a significant contribution.
Com. Wong:
. He cited as an example, if on a Sunday afternoon when the city offices are not open, .and
someone is cutting down a tree; a neighbor calls the Santa Clara County Sheriff to come. How
can it be stopped to avoid having a retroactive penalty?
. Expressed concern that the new officers coming to the city will not be up to speed on the code.
Ciddy Wordell:
. Said it was more procedural, the Assistant City Attorney oversees code enforcement.
Eileen Murray:
. Said that the Sheriff's Department does enforce the code on the weekends.
. Concurred that all officers may not be up to speed on the code, but they are thoroughly
Cupertino Planning Commission
10
January 23,2007
educated on the code and check the bail schedule to see what is on there, and when the
neighbors call in Cupertino, they know the code. Enforcement would not be any more difficult
of the code than it has been in the past.
Com. Wong:
. Staff is suggesting that instead of coming to the Planning Commission for tree removal, that it
will be handled, except for heritage trees, at the staff level. Asked staff how much money the
applicant could save.
Aki Snelling:
. Said the cost savings was substantial; if a protected tree is requested to be removed, and it
requires Planning Commission approval, the application fee is $2,536. With the ordinance as
proposed by staff, the fee would be reduced to $150 for the tree removal application for the
first removal; a second and third tree would be $75 extra for each tree removed with that
application. It may require an arborist fee if the city arborist is used to make a determination
on the tree. Currently there is a $1,000 deposit; whatever the arborist charges is taken and the
balance is returned to the applicant, running about $400-$500 for a simple analysis.
Com. Wong:
. Said he would like to see the fee process streamlined, so that the city does not have to refund
the difference in the deposit.
Ciddy Wordell:
. Said that if a flat fee was charged to cover the arborist fee, it would likely have to be higher to
cover, so that you are catching the higher cost; if the arborist is charging us $800 and we are
collecting $500, unless they would accept a flat fee, which so far they don't operate that way.
. Said she was not aware of any problems encountered with the current process.
Com. Miller:
. Relative to replacement trees the policy states that for 24 inch up to 36 inch trees, the
recommended replacement is eight 24 inch box trees or three 36 inch box trees, which could be
very impractical. It is meant for single family homes that may be on 6,000 square foot lots,
and the amount of space to put 8 trees does not seem reasonable.
. Said the in-lieu fee and multiple tree issue were not consistent with the tree management policy
which says that for new applications, if there is a requirement to put some trees in early, that as
those trees grow, you can thin them out without coming back to the City to do that, as long as
you have defined what your tree management program is.
. That program works good for new applications; however, many people who currently have too
many trees on their property may need to thin them out. At the last hearing he asked if they
could define some kind of retroactive tree management program to address this discrepancy
that we are giving new applications. It is a reasonable approach, and the old applications are
being saddled with in-lieu fees or multiple replacement trees that may not make that much
sense and be costly.
Ciddy Wordell:
. A response to the thinning point made is that, there is still some discretion that can be used in
requiring replacement trees; if somebody needs to thin in a development, we would still have
the ability to determine that they don't need to replace the trees because they were over-planted
and it would not be appropriate to require it and I think it could be treated the same way. That
would be a subjective judgment at staff level.
. Page 2-22 and 2-23 refer to Table A replacement, and states "may be used as a basis for
Cupertino Planning Commission
11
January 23,2007
replacement" therefore it is not automatically used as a basis for replacement.
. Eight 24 inch box trees does sound like a large number of trees; but if you had a large piece of
property and had the option of planting eight 24-inch box trees and you could, that would be
alright; but if you didn't have enough room you could go to the other extreme and plant two
48-inch box trees.
Com. Chien:
. Said that Com. Miller's point was that when people come in before or after the fact to have the
tree(s) removed, if the replacement tree is extremely large and costly, they will not do it
because the replacement tree will be burdensome cost-wise. The net effect may be that they
are going to cut the tree down in the middle ofthe night as happens now.
. There is a problem with the large trees. The replacement table in the new ordinance is good
for the small trees because it is doable and affordable for the average homeowner. I think the
problem Com. Miller is getting at is that when we get to the bigger trees, perhaps we shouldn't
use the appraisal method for that, because as we have seen in the past, trees appraise at
extremely high values; and if it is already agreed that the tree should be removed perhaps there
is a different logic about the replacement.
. My original question is I want to go back to the fees because so much of our discussion
surrounds that. Currently if someone comes in before the fact, and applies for a tree removal,
there is a Director's fee of approximately $819 if they are unsafe or diseased; anything else
comes to the Planning Commission; and now what we are proposing is staff has the ability to
make a call whether a tree can be removed, and there is no longer an $819 fee; there is $150
for the first tree and $75 for additional trees. Are the standards for removing still whether they
are dead or unsafe.
Aki Snelling:
. Staff recommendation still does say that the Director can require replacement trees if trees are
removed due to hazard or if they are dead; no fee is recommended to process that.
Com. Chien:
. How does somebody avoid coming to the Planning Commission if they have a tree that they
want to remove?
Aki Snelling:
. Unless it specifically requires going to the Planning Commission and the cases are if it is a
heritage tree removal request it would go to the Planning Commission, if it is a tree removal
application that is associated with a development application for example a subdivision
application or a use permit application, those tree removal applications would all come back to
the Planning Commission for review and determination. All of the others where someone on a
single family property wants to remove a tree, would come to the city and apply for a tree
removal permit, pay the $150 and it would be determined at staff level by the Director of
Community Development.
Ciddy Wordell:
. Relative to staff training, she said that staff would only approve tree removal if it was clear to
staff that it is unsafe or dead to the untrained eye. It would still require an arborist report for
other kinds of things that are not clear.
Chair Giefer:
. If it is believed to be a protected tree, something on our tree list, and the process is a deposit for
an arborist report would be on file, the arborist would go out and ascertain which species it is,
Cupertino Planning Commission
12
January 23,2007
report back, and then the tree removal cost would be $150 for the first tree and $75 for others.
Aki Snelling:
. Staff would then have to make sure that one of those findings is met to allow for removal of
that.
Chair Giefer:
. It does streamline the process from the present one; it provides a financial incentive in that fees
are reduced significantly. It is also appropriate that the retroactive tree permit for people who
are not in compliance is high. She suggested increasing it to a round number.
Chair Giefer opened the public hearing.
Nadine Grant, Cupertino resident:
. Stated an incident on her cui de sac where a tree was felled and it took a about 1-1/2 weeks to
have the tree removed because of the discussion between the city and the residents as to whose
tree it was; driveways were blocked. No one would take ownership of the tree as it was in the
middle of the cui de sac. Until it is designated who owns the tree, publicly owned or privately
owned for removal of the tree, who has the responsibility for removal?
. She questioned the time frame of addressing issues. She said she removed a tree in her back
yard because it was diseased and she felt speed was of the essence. She asked who would be
involved in the decision making process and how it would impact homeowners when the trees
are diseased.
. Who is the current city arborist?
Chair Giefer:
. The understanding is that as part of the tree policy, we would expedite dangerous trees and
removal of them. Relative to the specific issue of the tree falling over in the cu1 de sac and
being in the street, it appears jurisdiction and ownership were in question. Are we doing
anything in the new policy that would help expedite that removal?
Aki Snelling:
. By the clarification in the ordinance that it was a diseased, hazardous tree, or dead, it can be
removed prior to approval of the permit. A retroactive permit within five days of the tree
removal would be required; there is no fee for the retroactive permit.
Jennifer Griffin, Rancho Rinconada resident:
. When Rancho Rinconada annexed to Cupertino, it was done with the full realization that the
neighborhood of 1500 homes had mature street trees..
. She discussed the recent incident in the Willow Glen area of San Jose regarding the removal of
Sycamore trees.
. Said Cupertino's Code Enforcement has been prompt to respond to illegal tree removal on the
weekends; she commended staff and code enforcement.
. Said she was pleased that the new ordinance has specific requirements that trees are protected
on building sites.
. Said that if trees are going to be removed, there should be noticing and putting up signs on the
trees that the tree will be removed.
Deborah Jamison, Cupertino resident:
. Said she felt the proposed ordinance was inadequate for protection of the existing trees from
removal or dead by abuse.
Cupertino Planning Commission
13
January 23, 2007
. Disappointed that the comments made about the value of the native trees was not reflected in
the proposed ordinance.
. Illustrated the Trees of Los Altos book, which is an excellent educational tool for the city
containing 159 different species.
. Said she did not agree that adding to the list of protected trees would be confusing; it is merely
extending the list.
. Questioned why the Deodor Cedar and Blue Atlas Cedar were valued more in Cupertino more
than its native trees or all of the other beautiful trees that it would be a crime to remove.
(Western Red Bud, Sycamore, Douglas Firs, Redwood trees, Bay Laurel).
. Discussed a recent example of tree abuse on public property where a Cedar tree was felled in a
windstorm because all leaf litter and mulch had been blown away, dried out with roots
exposed; and a heavy wind knocked it down.
. Said the ordinance would not protect the city trees adequately.
Gail Bower, Cupertino resident:
. Said she supported Ms. Jamison's remarks about why they haven't added the native tree
species recommended by the city arborist and city naturalist at the September 2006 meeting.
Why not follow advice of the experts?
. Asked that the trees they recommended be added to the protected list, including the Coast
Redwood, Incense Cedar, Western Sycamore, California Bay Laurel, Black Cottonwood,
White Alter, and Box Elder.
. I agree that saying adding more trees to the list is burdensome and difficult to understand. If
by our own ordinance the purpose of it is to recognize the substantial economic, environmental
and aesthetic importance of our tree population, we should be adding more trees to the list to
encompass the population, not just a few very special trees.
. I am not clear on why we are separating the rear yards of people's homes from the ordinance.
We need to look at the entire property.
. I only wish that the city would be looking at the trees to be removed at Blackberry Farm, 187
trees, as closely as we are looking at our residential trees. I think it is such a hypocritical thing
and I wish the Planning Commission would do something about that.
Rhoda Fry, Cupertino resident:
. Said she felt there should be no fee for tree removal application; she did not feel there would
be any confusion with adding more trees to the list. She said she agreed with Gail Bower
about protecting native trees.
. Suggested that there be hot line numbers for cutting trees, cutting pipes, etc. for residents to
call.
. Specimen trees should be tagged so the status of the tree should be marked on the tree, not
hidden on a deed because properties change hands.
. Don't understand the reason for a distinction between front and back yard trees. Trees reduce
pollution, increase oxygen, address global warming, and even the value of trees made it to the
front page of the Wall Street Journal.
. The city needs to set an example on valuing trees; too many trees have been arbitrarily
removed for city projects without replacement. The ordinance may result in doing the opposite
of what we want; we want trees in our community so you are between a rock and a hard place;
because who is going to want to buy a house with trees or plant trees on their property with the
ordinance?
. She suggested that the city plant trees and be serious about planting trees. The city should set
an example so the people in the city will value trees.
Cupertino Planning Commission
14
January 23,2007
Chair Giefer:
. Concurred with comments made about having a telephone number posted on the website, for
reporting potential tree violations.
Eileen Murray:
. Said she would check to see if there is a hotline number for tree removal as it is a good idea.
Chair Giefer closed the public hearing.
Com. Chien:
. This is the fourth time we have hear the ordinance; I believe and I think I speak for my
colleagues when I say, government has a responsibility to explain our rules to people and to
enforce the rules; if we are crafting rules we cannot explain and cannot enforce, I am not sure
why we are here. This is an attempt to do that, because in the past, specifically last year, there
have been too many instances where people have come in and said I didn't know about a
particular tree that has already been removed. I think we have made significant progress.
. The current ordinance is burdensome and it is expensive to apply for a tree removal permit;
therefore no one will do it. After they calculate it, it is cheaper for them to cut it down in the
middle of the night. Now we are making it cheaper for people to come in beforehand to follow
the law and our hope is it will encourage people when they do that self interest calculation to
come in and apply for it legally. It is now only $150. What was protected before was unclear;
we had a long list and the wording was confusing; we called it heritage and specimen; we still
have the heritage trees.
. A specimen tree is now called a protected tree. The penalties were unclear also, hence they
decided it might be worthwhile to take the chance. Now our penalties are clear, the fees are
clear and the trees we are going to ask folks to replace them with are clear. We have made
significant progress in my opinion in those areas.
. For me the argument for convincing people to keep their trees has always been about self-
interest. As a city, we are concerned about the public interest, that trees provide us canopy;
they are good for us. I have never really been convinced by that argument; I think I speak for
a lot of folks, while we enjoy trees, if ten trees a mile from us are cut, we would never know.
Environmentally it is damaging, but we would never know and probably wouldn't care. The
argument for me has always been about self-interest and I have learned on my time on the
Planning Commission that trees are extremely valuable to your property. It may present a
nuisance when leaves are dropping and pine cones are dropping, but if you look at the value of
the tree, it adds to the property, and if you cut it down, not only are you losing value, you are
also being assessed a penalty by the city. It is not in your self-interest to cut the trees down.
. I hope by going through this process we have elaborated on this more and helped the residents
understand why they should keep their trees. If it is not about public interest, it certainly
should be about self-interest. We have got more work to do.
Com. Chien:
. Said he felt it would be confusing to add more trees to the list.
. The laws need to be enforced; contractors need to be penalized for not applying for permits
when hired to do a job. The proposed ordinance does not specify how to do that; in reality it is
suggested there not be any administrative process to deal with that.
. While I see the difference physically between a front and back yard, I don't see the logical
difference and therefore I would not support exempting the back yard for trees.
. In lieu fees - Our city attorney talked about it being an option for our residents; what I heard
staff say was in the event the tree cannot be replaced on that location, we would apply an in-
lieu fee; I am not clear at this point when the in-lieu fee would kick in.
Cupertino Planning Commission
15
January 23, 2007
Aki Snelling:
. The in-lieu fee would kick in if the replacement trees could not be accommodated on the
property .
Com. Chien:
. Said he would support an in-lieu fee.
. Supports expanding the specimen tree list; however, any tree added should have a criteria that
makes sense.
. Said that Redwood trees seem to be a valued species around California up to Oregon. He said
a tree would have to logically make sense to get on the list; look at it on a tree-to-tree basis
rather than species by species.
. Supports tree management policy.
Com. Wong:
. Said the current ordinance is not working and the goal is to educate the public and enforce
what is on the books.
. Agrees with staff's recommendation relating to the retroactive penalty.
. He suggested that city staff include a trained planner specifically to manage the enforcement of
the ordinance.
. One of the speakers said and I agree with her that these decisions have to be made in a timely
manner, and our city is growing and with the many applications that come in, due process is
important. It would be ideal to be able to process things in 5 to 6 days, but staff should have
30 days to have the flexibility to rectify matters.
. What staff if recommending is generous, $150 for the first tree, $75 for the second, you don't
have to pay $800+. I understand the logic ofrequiring a $1,000 deposit, but I want to make
sure that if the arborist comes short a $1,000 in a timely fashion that the neighborhood or
homeowner gets their funds back in time. Com. Miller brought up a couple of good concerns,
regarding table A on the replacement tree guidelines, also Com. Chien brought it up; on the
smaller tree trunk size, tree replacement guidelines make sense, but as you get over to the
bigger ones, over 18 inches, it becomes burdensome. I think that the message is, don't cut the
tree, and if you cut the tree, the policy should be to replace the tree to the closest size and just
by having them replace it, as we get the tree bigger, it is going to cost more; the tree may not
survive when it is bigger, but if that is our intent that they cut down a large tree, I believe that a
one-to-one replacement at the current size vs. going to an arborist and asking what the value is,
and then if they can't fit those trees on a standard R1 lot which maybe average between 6,000
to 8,000 square feet, we are not here to punish the residents, we are here to solve a problem
and I want to see this policy being practical. By having them replace the likeness for likeness is
already an expensive process, it is already an expensive process, and they will not and
hopefully they will not cut down the tree illegally.
. Regarding the exemption of the backyard, it is a matter of private property rights. I think a lot
of the trees that are in the rear are for privacy protection plan, if it is not a heritage tree and you
have a tree or elderly folks or young children that want more space, and you want to remodel
your back yard, I don't feel comfortable with government interfering in the back yard.
. Supports the tree management policy. Questioned the criteria for coming up with a heritage
tree list. Relative to expanding the tree list, developing a criteria is necessary.
Ciddy Wordell:
. Barry Coate made the recommendations on the original list as a service to Cupertino and not as
a consulting arborist at the time. She said she was not aware of his reasons for his choices but
could get the information from him.
Cupertino Planning Commission
16
January 23,2007
. The arborist is now recommending the Redwood because it has become domesticated; it was
not on the original list. It appears that the arborist changed his position on the Redwood tree
because it is a native to California, although not so much to the valley as it is to higher
elevations and to the coast.
. Through the whole ordinance, there has been a consistent effort to try to balance out different
kinds of interest, more protection, less protection, more punitive measures for people who
remove trees and more incentives for people who don't remove trees illegally. I think the same
thing is true, the number of trees is a balance of trying to have an ordinance that is simple for
people to implement and it just is less simple; the more trees you add.
. Another reason may be that not many people said that it was important to add trees; there was
not previously much community support, but some was heard tonight.
Com. Wong:
. Suggested as they move forward on the policy, that funds needed to added for code
enforcement to enforce the policy. He concurred the suggestion from a speaker about the need
for a hotline, not necessarily just for the trees, but for any violation of any city ordinance. He
said it should be well advertised and not just sent after hours to Public Works. There should be
an after hours staff person beyond Public Works staff.
. Said he was not comfortable with the in-lieu fees. In substitution of the in-lieu fees, the policy
should be replacing those trees that were illegally removed.
Com. Miller:
. Agreed that they were getting closer, with still a ways to go.
. Said he was concerned that they were addressing the fees for removing trees with the hope of
getting people to comply more; but that the fees were very high. If the fee for removing the
tree is reduced from $2,500 to $150, then charge someone $5,000 or $18,000 to replace the
tree, it is questionable whether they will achieve what they are trying to achieve. Said he was
still concerned that the cost of replacement has to fall within a reasonable range, or people are
just going to ignore it and the city would not get the result they are seeking.
. Relative to the in-lieu fees, I see that the reason for an in-lieu fee; assuming this is the
homeowner who has followed the permit process, and we have determined that we can't fit the
tree on their property; which indicates that there was over-planting done. We are putting a
section in the ordinance stating if you have a new application and you want to over-plant or we
ask that you over-plant so that we get some growth quickly. As the trees grow, it is reasonable
to thin them out, there should be something that applies to existing neighborhoods where that
tree management program wasn't in place before. It seems to me that if you can't fit the trees
on the property, that there was over-planting to begin with and we shouldn't be charging extra
fees for doing that.
. Said he concurred with Com. Wong relative to the backyard tree issue in that there are a
number of trees put in back yards for privacy screening; it is critical that they be protected.
. For various reasons when people plant trees they don't know how large a tree may grow and
how much room it will take, and the ordinance as proposed by staff has a test that must be
taken before a tree is removed, including that it will not detract significantly from the
neighborhood and other criteria. It is a reasonable approach to backyard trees.
. Said he appreciated Debra Jamison's comment about removal of tree litter when it is critical to
the growth of trees and there may be some way we can do it through the ordinance. If there is
some way to address that issue, he said he was sensitive to the fact that you can kill a tree by
doing these things as easily as cutting them down.
. I like the idea of advertising some kind of tree phone line so that if we are going to expand the
number of trees, that it is easy for the residents to figure out what to do next.
. In terms of expanding them, we heard one argument tonight that we should be focusing on
Cupertino Planning Commission
17
January 23, 2007
native trees; however, my recollection is that the arborist had a completely different approach
and had to do with canopy, size and growth of the trees and what it did and that is a separate
approach or strategy from native trees. I am not clear about the best approach, and having that
clarified by staff or the arborist would be appropriate before we go ahead and make a decision
on how we should expand or not expand the list.
. Said he agreed with Com. Wong regarding replacing a tree to the closest size; it goes back to a
reasonableness approach to replacing a tree that has come down for natural causes, as opposed
to someone cutting it down; in making the cost fit into a reasonable zone that people will want
to comply with the ordinance.
. I am also sensitive to some of the comments that there has been in the past some lack of
consistency between the way city trees are being treated and the way trees on private property
are being treated. The ordinance should apply to both city and private trees so that there is
consistency and there is no distinction between the two.
. The tree management policy is good but only addresses new applications; I would like to see
some aspect of the tree management policy apply to existing conditions and residents who have
over-planted in the past, so that they are not over-burdened with the fact that they have over-
planted and now have to continue to over-plant because a tree has come down that should have
been thinned down in the first place.
Chair Giefer:
. Said that problems still existed with the tree policy, in my mind I separate it between when
developers come in and just cut trees down, and are insensitive to our existing policy because it
is cheaper to get rid of the tree and then ask for forgiveness later, vs. the homeowner who has a
tree that was planted 50 years ago in their back yard and now they don't have a back yard any
longer. It seems that there is a key difference in the need here in the issue that is before us.
. Said she was not opposed to asking the developer of a parcel to replace a tree with a very large
tree similar to the Taylor Woodrow situation; but would not be comfortable asking a
homeowner on a 8,000 square foot lot whose Oak tree dies of sudden oak disease to replace it
with a 72 inch root ball size Oak because they are going to have the same problem. She said
she had a radical suggestion that mayor may not get traction tonight.
. Supports the concept of an in-lieu fee, with separate ones for homeowners and developers.
. I would also suggest that if we did have the fees go toward our in-lieu fund, that a time
limitation be determined on the use of those funds, because I would not want Public Works to
assume that they do not need to invest in street trees, that they do not need to invest in park
trees and that they will let the in-lieu fees pay for those. I think we need to be very specific on
any fees collected for in-lieu fees if it is from a homeowner or if it is from a developer and how
that money is spent.
Assistant City Attorney Eileen Murray:
. Said it could be made a separate fund with its own criteria.
Chair Giefer:
. Suggested that at the end of 12 months if the city has not used that fund to replace trees within
the city, the funds be donated to urban forests or a not-for-profit organization.
Assistant City Attorney Eileen Murray:
. You can specify that after one year, we can donate it to a non-profit organization.
Chair Giefer:
. Part of this is sustainability; we want to replace tree canopy, but we can't figure out how to do
it within our city without gravely inconveniencing our homeowners. I agree this is an issue,
Cupertino Planning Commission
18
January 23, 2007
and I am not sure how we solve that piece of it without finding another way to do that. I don't
want to have $200,000 sitting in a fund for trees to plant and the city never use the money,
when the real issue is we need to plant trees to create oxygen.
Eileen Murray:
. Said there may be an organization in the Bay Area that plants trees.
Chair Giefer:
. Said the first priority should be the City of Cupertino, for the benefit of its citizens, but not
have the funds sit idle for a long period of time.
. Keep in mind where the tree is; is it on a residential property or on a parcel being redeveloped;
which is the applicability of in-lieu fees.
. Said they were making progress in the right direction; supports the fee structure, recommended
increasing the retroactive fee to $3,000 and less than a $500 differential.
. Said she did not support a separate rear yard removal because a tree is a tree, and why would it
be acceptable in the back yard but not in the front yard.
. I also think again, going to an established neighborhood model where you have trees that have
been there for 30 or 40 years, it is providing privacy, and you can still get that tree removed,
you can still ask for that permit, but that tree is providing privacy between you and your
neighbors and once that tree is gone, it is gone. Even with an older neighborhood before the
city had privacy protection, it is still serving a purpose. Due diligence needs to be done on
those trees as well as the one in front.
. Pointed out an inconsistency in the oak tree size referenced in the policy as 10 inches and here
referenced as 18 inches; there is a 2/2 split on that one.
. Relative to the staff training issue, a minute order could be sent to City Council stating that we
need a staff training plan or a head count addition to manage the policy, because it is very
nebulous now. I don't know who on the staff would be trained and there have been problems
before.
. Supports tree management policy. I can see Com. Miller's point about a retroactive tree
management policy, but I think we would have to come up with a separate fee schedule
because there is a lot more analysis on that and I am not sure that our new lower and approved
fee schedule wouldn't simplify that matter for somebody who has several mature trees that are
over-planted. I think that by lowering the fees, it actually serves the purpose of a retroactive
tree management policy.
. I have been an advocate of native trees from the beginning and don't understand why we are
not going with native trees; they require less water, and thrive in our environment more.
Adding to the list will not be confusing to the community. I support expanding the list and
suggest we use native trees as one of the key criteria for the expansion of that policy, which is
a position I have been advocating since the beginning. I appreciate everybody coming out to
voice that opinion.
. Listed her key recommendations for additions to the list: Valley Sycamore, Madrone, Bay
Laurel, Red Bud, Coastal Redwood (however, they are fast growing when irrigated with
potentially long term over-crowding).
. Tree replacement size: I understand what is being said, and again I see a different application; I
see the developer; when I think back to the tree hearings we have had, the DRC things that
have gone on, normally when it is a problem, it is a developer who has gone in and gotten rid
of the tree. They should plant the same size tree they removed. I feel differently about a
homeowner who has a redwood tree that is pulling up the foundation of their house.
. Summarized the list of cleanup items to bring to staff's attention:
o Page 5, under "oak trees" to indicate "all species"
o Under "Heritage Tree" add that the public can nominate a heritage tree if it is on public or
Cupertino Planning Commission
19
January 23, 2007
o
quasi-public lands. If it is on private property, it is the property owner's right to make that
nomination.
Page 9, Section C: Add "for thinning and removing trees in accordance with recorded tree
management". Include the verbiage that if it has been recorded as a heritage tree, then that
policy doesn't apply to it.
Page 11, tree management: I think we should close the process. If you have a tree
management plan and you remove the trees, you should notify the city know that you have
removed the tree.
Page 12, Under Director to Inspect .160 - change "his own expense" to "their own
expense"
Relative to noticing, post a notice on the tree that the tree will be removed.
o
o
o
Com. Miller:
. Relative to creating a distinction between homeowner and developer, developers are already
taken care of through the development process; there is no reason for adding more guidelines
in the ordinance because it is taken care of.
. Relative to in-lieu fees for people who cannot fit a tree on their property, if you can't fit a tree
on your property, to me it implies that there was over-planting to begin with, and if that is the
case, then we need to be able to treat that situation identical to allowing new applications,
where you can come up with a management plan that allows you to thin without penalty and
without putting money into an in-lieu fee.
. Along with the management plan, I don't agree with treating an Oak tree separately because
while that might be a nice objective to keep Oak trees, if people know they cannot thin them
out, they are probably going to be discouraged from planting them in the first place. I think
that you defeat the purpose and will see fewer Oak trees, rather than saving more Oak trees by
not allowing people to take them out.
Com. Wong:
. Expressed concern with the amount of time spent on addressing the ordinance from September
to January and suggested moving forward and making a decision at the meeting and
forwarding it to City Council.
Com. Chien:
. I don't see the distinction between residential and developers; they should all be under the
same roof.
. If we set up a fund, we need to make sure that funds go back into our city to benefit the
residents.
. In terms of where we are going tonight, we have spent a lot of time on this and to pass it on
incomplete to City Council is not doing our job. I support further discussion to reach a
resolution.
Chair Giefer:
. Relative to the tree list, there are three commissioners who agree to consider expanding it if we
could define the tree list. I would like to address that.
Com. Wong:
. Relative to the retroactive fee, I would feel more comfortable at $2,800 vs. $3,000.
Chair Giefer:
. Two commissioners agree that $3,000 is appropriate.
Cupertino Planning Commission
20
January 23, 2007
Com. Miller:
. No preference.
Com. Wong:
. You already know how I feel.
Chair Giefer:
. Relative to adding trees to the list, a proposal was made months ago that the criteria be that the
tree is a native tree. Specifically some of the trees we heard from the community about and the
arborist agreed with were the Sycamore, the Redwood, the Madrone, Bay Laurel and Red Bud.
What is our position on adding those?
Com. Miller:
. Does that imply that we take the Deodor Cedar and the other Cedar off the list because they are
not native.
Chair Giefer:
. I don't think that is what is being suggested; it is expanding the list.
Com. Miller:
. Said he understood it made sense to protect California trees; however, the arborist had a
different point of view and he would like to hear his arguments for his choice again before
making a decision.
Aki Snelling:
. Clarified why the city arborist included his recommended trees was because of the value that
they add to the skyline, and also he indicated that the two trees he recommended were native
trees. He recommended the Coastal Redwood and the Incense Cedar.
. The reason for the Redwoods, is that it is very prevalent in the area and so we felt it was
difficult to keep a record of all the redwood trees in the area that would be protected, it would
affect many properties in the area as well so that was one of the reasons we had made the
recommendations to keep it as is.
Com. Miller:
. The arborist was looking more at its impact on the skyline as opposed to protecting native trees
and I am not sure which is more valuable or not valuable at this point. Speakers had
recommendations for additions to the list also.
. Staff's suggestion was not to do the Redwood because it is going to impact a lot of people.
Why is that necessarily bad?
Aki Snelling:
. It is not necessarily bad, but would impact quite a number of properties; they are prevalent and
are easy to grow in the area and are fast growing.
Com. Wong:
. Asked staff to explain the reason for not adding to the tree list.
Aki Snelling:
. The basic reason is to create an ordinance that is more easily understood by the public, adding
more trees would create confusion. There are more trees than the public needs to be aware of
that may affect their property; simplifying the ordinance is the reason to keep the tree listso just
Cupertino Planning Commission
21
January 23, 2007
to simplify the ordinance is our reasoning to keep the tree list as it is.
Chair Giefer:
. I feel strongly that we should add trees, some of our natives, and I think that should be the
criteria when we do add trees is that they should be native to the area.
Com. Wong:
. Said he agreed with staff's recommendation.
Com. Chien:
. Said it appears that there is not only a debate about which species should be included, but there
is a lack of understanding of what qualifies a particular species to be considered. More input is
needed from experts such as the city arborist.
Chair Giefer:
. Said the goal is to have a policy that serves the public better than the present policy. There is
agreement on the removal fee schedule and the retroactive fee, that it should be between $2800
and $3000, which are good accomplishments. Adding trees, several speakers testified that
other trees should be added; what is that criteria and how should we define those seems to be
the sticking point. It makes sense to me that we would add natives and not trees from
Himalaya. I do agree that the redwoods are very rapid growers and could present a problem
for our population.
Ciddy Wordell:
. Said it appeared they were close to knowing what trees they wanted to add, and that they may
be able to reach that conclusion. We do have the arborist recommendation for Incense Cedar
and Coast Redwood; if you wanted to add Bay Laurel because it is native, it seems to me you
could vote on that. If we could check with the arborist, to see if there is a reason that was not a
good suggestion, then we could provide that input to the City Council.
Chair Giefer:
. I think the key objectives in terms of figuring out the fee schedule has been accomplished. I
see a movement on adding trees, but not complete agreement on which trees to add. Two
people say get rid of the rear yard removal and two say have a different standard if it is in the
rear yard. I would not be comfortable sending a recommendation in with a split vote on that.
. There is consensus on the tree management policy.
Com. Wong:
. With the exception that I think you said on the existing conditions, I think that should be
applied on the residents who already have the trees there; the tree management policy was only
for new applicants. What about the existing trees already there, that if somebody wanted to
thin out their heritage tree grove or a tree grove, there has to be some mechanism to bring it to
the Planning Department to thin that out.
Chair Giefer:
. Why wouldn't you just come in and ask for a tree removal and pay the $150 for the first one
and $75 thereafter?
Com. Miller:
. Because staff will ask for replacement trees or in-lieu fees which is not consistent with how we
are treating new applications.
Cupertino Planning Commission
22
January 23, 2007
Chair Giefer:
. If your goal is to replace the tree canopy overall and continue to have an urban forest, I think
that is appropriate. If that is not your goal, then you are right.
Com. Miller:
. Said that Chair Giefer may be misinterpreting his comment, because part of the reason for the
tree management process is so that it is easy to say plant more than you really need today so
that we get a canopy as quickly as possible, and we understand that and then we will allow you
to thin it out as they grow. The example used in the past by staff are the trees along Wolfe
Road which were over-planted and then when we wanted to thin it out, many neighbors were
very upset that we were taking trees out that shouldn't have been taken out, when the plan all
along was to over-plant and then thin out. .
Chair Giefer:
. Asked how it would be applied to residential.
Com. Miller:
. Said an example is that the tree cannot fit on the property; which indicates over-planting in the
first place. Why penalize them for over-planting when not penalizing new applications; it is
not consistent and equitable.
Chair Giefer:
. I think the philosophy behind the policy as we see it today is that we want a tree to be planted
somewhere; so if you don't have room on your property.
Com. Miller:
. If there is a policy that says it is okay to over-plant and if you overdo that, we will allow you to
thin out as the trees grow out. Why can't we apply that retroactively to situations where people
over-planted either because they were asked to by staff in the application or because they did it
unknowingly; and now they are in the position where the trees on theIr property are large
enough that they cannot fit the extra tree in.
Chair Giefer:
. I am not saying we require them; I just think that we cannot anticipate every circumstance of
what someone did 40 years ago; and I think the policy moves you forward and does allow you
to remove that tree today. We have lowered our fees to make it more convenient; if you cannot
replace them on your property, we are not going to require that, we are going to allow you to
pay an in-lieu fee. Perhaps you should suggest a different in-lieu fee schedule.
Com. Miller:
. Said they would likely agree to disagree on that particular point. He also said that he did not
think the in-lieu fee is appropriate.
Chair Giefer:
. That is where I was going with differentiating between homeowner and developers.
Com. Miller:
. I disagree with that approach as well because I think the developer situation is very well taken
care of the way we treat the development process. I don't see a reason for any adding further
restrictions and rules to that process.
Cupertino Planning Commission
23
January 23,2007
Chair Giefer:
. Said that the application could be continued so that more information could be gathered before
a final vote.
Ciddy Wordell:
. Said there was no harm in waiting until the new Commissioner was present. There might be
some issues that would benefit from more discussion and better solutions.
. Said it would be appropriate to identify the key issues that require more information to resolve.
. Said staff would need a minimum of 45 days before bringing the ordinance back for final
discussion.
Chair Giefer:
. Asked that the return date be within a month to serve the public in an expeditious manner.
. The key point is in-lieu fees, and to ensure that we are replacing the canopy. If we were to add
trees, what criteria could be used for protected trees and what should those trees be. Bring
back language on how we would define adding to the list, and if it is just those two trees that
the arborist is recommending then if that is staff's recommendation for adding them.
. Staff training I am not sure that we will know that, as long as City Council is comfortable on
how staff will be trained, that is not part of this package.
. Tree management policy - we agree on the moving forward; tree policy the fees, it sounds like
we are all comfortable with the fee structure other than the in-lieu fees.
. What about replacement size - Com. Wong expressed some interest to replace with practical
replacement size (likeness for likeness).
. Rear yard tree removal - we are split.
. Have the arborist write down his thinking for us to read in the report; specifically take one tree
at a time and explain to us what his thoughts are on that tree.
. If it comes back as part of the in-lieu fee process that we have a specific tree fund for the city,
if we partner with a non-profit to replace tree canopy within our city, if the City Attorney could
get more information on that.
Motion: Motion by Com. Chien, second by Com. Miller, to continue Application
MCA-2006-02 to 30 days from January 23, 2007. (Vote: 3-1-0; Com. Wong No;
Com. Saadati absent).
Com. Wong:
. Said they had been working on the tree policy from September to January and he felt it was
that government should move forward and not be held back Adding a new commissioner will
provide a new mix and there would be enough feedback from the previous meetings.
Chair Giefer declared a short recess.
4. MCA-2006-01 (EA-2006-12)
City of Cupertino
Citywide Location
Municipal Code Amendment to Chapter 19.28 Single
Family Residential (R1) Zones regarding buildings
proposed on properties with an average slope equal to
or greater than 15 percent. Planning Commission decision
final unless appealed. Tentative City Council Date:
February 20, 2007
Gary Chao, Associate Planner, presented the staff report:
. Provided a summary of the background of the application to review Chapter 19.28 Single-
Cupertino Planning Commission
24
January 23, 2007
Family Residential (Rl) Zones regarding developments proposed on properties with an
average slope of 15% or greater, as outlined in the staff report.
. In January 2005, the City Council approved amendments to the R1 Ordinance, and decided to
increase the development standards for the R1 hillside properties. Since then, the City has
received numerous concerns from residents stating that not enough public discussions were
held relative to the specific topic of the hillside standards. The City Council has directed that
discussions be opened up for public input to assess whether any modifications are needed.
. He discussed the difference between Rl and RHS standards, slope applicability and
geographical applicability. He clarified that the new hillside standards do not change the
density requirements or allowable density of the R1 zoning districts; it only affects the floor
area ratio (FAR), size of the homes and some additional development standards that apply to
the proposed homes.
. Illustrated examples of home sites located on 15% to 20% slope, 30%+ and 40%+.
. Relative to slope applicability the Planning Commission has three options to recommend to the
City Council: to retain the average 15% slope threshold; adjust the threshold anywhere
between an average slope range of 15% to 30%; or revert back to the original 30% threshold
standard. Staff is comfortable with the 15% rule as the General Plan identifies that minimum
slope problems increases to significant slope problems at 15%. In addition at 15% or greater,
slope becomes a very significant factor in development.
. Relative to geographical applicability, the Planning Commission has three options: to retain
the geographical applicability of the current R1 hillside development standards; or limit the
geographical applicability of the hillside development standards to only properties west of the
hillside transition line (10% slope line); or revert to R1 hillside standards prior to the 2005 R1
Ordinance Amendment where only developments on slopes of 30% or greater will be subjected
to the hillside standards regardless of geographical location.
. Staff recommends that the Planning Commission receive public testimony and provide
direction on ordinance changes if necessary, and/or provide the staff's recommendations to the
City Council.
Chair Giefer opened the public hearing.
John James, Lindy Lane:
. Illustrated a photo of Kennedy High School area showing the hills and trees and said if the
ordinance is reversed, the trees will be taken out and big houses will be built.
. Somehow the Cupertino Hills off of Lindy Lane, Terrabella and Terrace were zoned residential
Rl instead of hillside RHS; some landowners built huge houses in this area. In my opinion the
City Council saw what happened and imposed the 15% restriction to protect and preserve the
remaining Cupertino hillside.
. Requested that the Planning Commission keep the 15% restriction in place and continue to
protect and preserve the Cupertino hillside. What is different or has changed since last year to
bring this issue up again? I think I heard the answer, but nothing has changed as far as I know.
You are trying to protect the city and I hope you just keep doing it.
. The north Lindy Lane landowners are trying to rezone the hillside to flat land building
requirements; don't let them do it.
Julia James, Lindy Lane:
. Reiterated what you did before, to keep it zoned at 15%. I don't know if it is greed or not, but
all these people could sell their land and people could build a house that is big enough, 4200
square foot home is very extravagant; how much money do you need to make; I don't
understand it. If they want to build homes, maybe they should go out where they can buy some
flat land and build all the homes they want. Please keep it zoned at the 15% level.
Cupertino Planning Commission
25
January 23, 2007
Tim Maslya, Scenic Boulevard:
. Opposes application.
. Said he was in the process of submitting plans for a house addition of 1,000 square feet to his
1600 square foot home. His lot is 13,000 square feet, zoned R1-10. Due to this ordinance,
there may be some issues.
. I support the intent to protect, but due to this ordinance, I find myself in a situation where I
would be building maybe in conflict with this ordinance on flat land and not changing the
hillside, or endangering the look of the hillside at all.
. When I purchased the lot it was noted as RI-10, I looked up the ordinances and I figured this is
what I will be able to do to my property in the future. Now I may be in jeopardy of not being
able to do that.
. He noted that because the setbacks are also different, and his lot is not very big, it would create
a big impact if he had to go with more restrictive setbacks.
. I am hoping there will be some compromise here; I just wanted to let you know my case
because there may be others in a similar situation.
Com. Chien:
. You mentioned one consequence if we were to keep this rule in place and that is setback; you
might lose 5 feet. What are the other consequences?
Mr. Maslya:
. In terms of the FAR and other issues that are more restrictive in the RHS ordinance, I would
not be impacted. It would be primarily the setback which with the limited area I do have,
would be a major impact.
Marie Lin, Cupertino resident:
. Opposes application.
. Building a healthy home, engineering correctly should increase the safety of the lot. The
soundly built house should act as additional retaining for the lot; it only increases safety,
especially for the lots around 15% or a little bigger than 15% slope; I think it is difficult to put
in the RHS ordinance and I am opposing it. It is healthy for the land when there is more
retaining and the soundly built house will serve the purpose as retaining.
Jim Black, Regnart Canyon Drive:
. I reside in the RHS designation and am opposed to the 15% slope. I just asked the question
because I just got the announcement two weeks ago about this meeting. What is the objective
of the 15% over 30%; is it safety, is it visual? If it is safety, the houses where I live at least are
all engineered, we have to have the foundations engineered" we have to have retaining walls,
we have to have all the slopes and I am sure if you considered 15%, I exceed that by a wide
margin. The RHS district doesn't apply specifically to me if! understand this correctly. But I
don't see the benefit in changing the existing 30% that is working, to 15% unless it is a visual
purpose. If it is visual, perhaps there are other means of achieving that objective rather than
restricting citizens in the city who already live in some conditions where the 15% would be
strictly a hardship as I explained to you for people who live in the R1 zones.
. My appeal to ydu would be to reverse the 15%, go with the 30%, the steepest slope I am aware
of other than the 15% in the Bay Area, but was in Contra Costa and it was 24% and the way
theirs worked, is if you could reach the flat spot if you had to go to more than 24% even with
the driveway or an approach, if you would get to the flat spot where you could develop a
house, then you could do it. You could not build on 24% or greater slope, but if! understand
this correctly, an average of 15% is pretty severe at least for anything in the hills.
Cupertino Planning Commission
26
January 23, 2007
. I am asking you to repeal it.
Ron Berti, Cupertino resident:
. The summary of the problem was stated earlier this evening; there are lots with hillside
characteristics that are zoned Rl. The adoption of this ordinance was entirely routine and
legal, it has been in place for many years, and now that it has gotten some attention, there are
some people who don't like it.
. I believe it doesn't apply to very many properties, and I think we cannot count on the self
restraint of the owners of these properties, they will develop it out as much as you say they can.
It is entirely reasonable to limit this type of development from the obvious fact that it is a hill
and I believe what we are talking about is a 7-1/2% diminution of the footprint of the home
that is to go in and some other more stringent ordinances, but the bulk of it is the footprint, the
floor plan is restricted by 7-1/2%. I don't think that is onerous.
. There are 36 signatures from neighborhood residents, these are people with a direct view of
some of these very R 1 properties.
. Asked that the ordinance remain as is.
. Opposes the amendment.
Shau Zhu, Lindy Lane:
. Asked that the Planning Commission consider removing the 15% slope ordinance overlay on
top of the R 1 ordinance.
. The ordinance took effect without knowledge of affected property owners, and many of us
properties subject to R1 and hillside ordinance and many of the property owners without
knowing what it means to them. The public was not getting a chance to provide their input
before the change. The law should have clarity and fairness.
. In 2005, more than 2 dozen households signed a petition to remove the 15% ordinance; in
response the Planning Commission recommended removal and the City Council discussed the
issue and favored it. To date there are still no clear answers about what the impact was to the
residents.
. A new ordinance affects the property value profoundly. It gives tremendous confusion and
financial burdens on the hard working homeowners. Property owners paid for their property
and taxes accordingly so they should have every right for their property value and as citizens
living in the R1 zone, we should not be punished because we have some hill.
. If safety is the issue, let's deal with the safety. But if it is not, we should have equal rights to
preserve our property values. As people get old and the house gets old, when we are ready to
rebuild or remodel our house like the other person, we may find out they have to build a
smaller house. When the new owner comes to buy a house they don't know what they are
buying or what their option is. What do we do; we do the slope density analysis. How
expensive and how time consuming and the slope density survey is. I am sure a lot of us
already know that. The builder of the house, so the new law creates too much uncertainty.
. I strongly urge you to vote one more time to remove such an inappropriate ordinance to protect
the property rights.
Charlie Taysi, Lindy Lane:
. I urge you to keep the 15% rule and the reason is if you change the slope density, it means that
they have to put bigger homes, if you put big homes in the hills in the north side of the Lindy
Lane, you create a lot of concrete retaining walls to keep the hillside from coming down.
. The intention of the meeting is to keep the hillside of Cupertino beautiful; but if you start
changing this thing and start building and putting a lot of concrete, it is not going to look nice;
it will look ugly.
Cupertino Planning Commission
27
January 23, 2007
Sherry Fang, Lindy Lane:
. Tonight we are holding this public hearing for an ordinance that was passed almost two years
ago. Procedurally it is like convicting a man first, and then have his trial later, which doesn't
seem very democratic.
. Please do the right thing by removing this ordinance; otherwise what message are we sending
to the public and what impact will this have on Cupertino's credibility.
. In addition to removing this ordinance, I urge you to clean up and streamline the existing
building codes so that we are not at the whim of our city Community Development Director
whenever a rule needs interpretation. With Cupertino's diverse population, we should be. extra
sensitive to the appearance of favoritism, and whenever a rule is interpreted and applied
inconsistently, it appears staff is playing favoritism. As Mr. Santoro will demonstrate later,
this ordinance is not well thought out and will further muddle the existing building code.
. We just finished building a house and witnessed two other new houses next to ours. We have
noted interpretation discrepancies with regard to setbacks, balconies, drainage requirements,
grading and tree protection. Weare subject to a nebulous rule called compatibility with the
neighborhood which gives way too much control the Community Development Director,
dictating the type of house we can build. We have also witnessed a huge difference in
turnaround time in the manner in which subdivision applications from Mr. Moxley, Mr.
Knopp, and Dr. Sun were handled. We found the R1 building code vague and often required
interpretation and approval by staff, namely the Community Development Director. However,
the interpretations are inconsistently applied; hence it appears that staff plays favoritism.
. In conclusion, I think the city has made a mistake in allowing this poorly thought out ordinance
to stay on the books, do you give more respect to public figures who admit to their mistakes vs.
trying to hide them. It takes courage to do the right thing.
. I urge you to remove this ordinance immediately.
Com. Chien:
. Much of the argument I heard, is there was not a public process to have this heard. Would you
agree that tonight you are getting your day in court.
Ms. Fang:
. Agreed that the procedure seems backward.
Com. Chien:
. Asked Ms. Fang to address the issue of public interest for hillside protection.
Ms. Fang:
. Said one of the photos shown was her house taken from a top down view. If they were in the
valley floors, they could plant trees. She said that although she liked Oak trees, they have not
planted as many as they would like for tree protection, because when it is time to thin them out,
there is too much red tape to go through with the removal process.
. She said there are many other properties that don't have the same impact on appearances
because of their location.
Jennifer Griffin, Rancho Rinconada resident:
. When the previous RHS ordinance hearings were held, there were very few people in the
audience, but it was a public hearing. There were not a lot of property owners here at the time
of the RHS hearings. It was a public process, it went through its due time and like all the other
changes to R1, it was enacted. Said she resented the fact that some people imply that it was
done secretively.
Cupertino Planning Commission
28
January 23, 2007
. Said the felt the 15% rule is good; if you are building a house on a piece of property that has a
great slope, it is a logical point to assume that the steeper the slope, the more ramifications and
standards there should be on the house.
. She said she supported the 15% rule and said there needs to be logical rules left out for
building on hillsides.
Lynn Faust, resident of Rancho Deep Cliff development:
. We are surrounded on three sides by wonderful hillsides; after 1978 we watched many projects
going on the ridgelines and in the hillsides surrounding us. I support the actions of the
Planning Commission and City Council over the years to put safeguards in place.
. I support the 2005 Rl hillside standards of the 15% slope. I believe the City Council made
their decision based on substantial information, and I hope you agree and will support retaining
that.
Mark Santoro, resident:
. In favor of amendment.
. Said that the property owners want things to remain as they were when they purchased their
property; the zoning was R1, the city has tried twice to change the zoning and it has not
happened. This particular rule was not addressed by the Planning Commission and it came up
and not one member of the public spoke about the 15% rule. What does this 15% rule mean,
where does it come from and what is the effect on property owners?
. Referred to a section that staff discussed and stated that the average slope is equal to or greater
than 15% then two sets of regulations apply, whichever is more restrictive. Problems we see
with the 15% overlay; it was passed without any input from the public. When we heard about
it, we tried to get it removed and it has been delayed. We came in front of the Planning
Commission once who voted to remove it; we went in front of the City Council and we were
told they couldn't vote; we wasted lots of time doing this; we think it is a misguided rule;
several of us are in favor of protecting the hillsides, we just believe it is the wrong way to do it.
. It is unclear and unfair and could lead to unequal treatment and abuse which we think we have
seen several times already.
. It violates property owners' rights.
. In 1993 the city tried to rezone us; they approached us and tried it again 10 years later. Near
the end of 2004, the Planning Commission was hearing the R1 issue; this particular issue did
not come up, but Com. Giefer did comment on the lack public input on R1 changes. At the
time I did not have input because I didn't have disagreements because this particular item was
not discussed by the Planning Commission.
. In early 2005 the R1 ordinance was accepted by the City Council. In January some people
received postcards stating that they were going to rezone part of it, about 27 properties. The
next day 11 of us went to a meeting; staff informed us that they wanted to rezone us; when we
questioned him about it he said, it is much better than what you have now, now you are dual
zoned with two sets of requirements. We weren't aware of this and when we asked if anyone
was told about it, we were told there was nothing we could do about it; in fact, we had another
week to appeal it when we were told there was nothing we could do. The R1 ordinance
became effective with no public input. We spent a lot of time discussing issues with people
trying to get it heard; we finally submitted a petition signed by 27 property owners to stop the
rezoning and to remove the 15% overlay. The Planning Commission voted on this and voted
both not to remove this and to remove the 15% overlay. So we are here for a second time; the
first time you have already voted in favor of removing this; then it was sent to the City
Council; the City Council voted 5-0 against rezoning properties in question. The Council
strongly looked like they supported getting rid of the 15% overlay and when they were about to
vote on it, they were told by Steve Piasecki that it was not on the agenda, therefore they could
Cupertino Planning Commission
29
January 23,2007
not vote on it. We put a petition in; we waited many months to get in front of the City Council;
we went through the Planning Commission, followed all the rules and suddenly we are told
that the City Council cannot vote. It was right before an election so the City Council stuck
with that and decided not to vote. They instructed it to try to be settled by January 2006. Staff
went to do a study; it is complicated issue; we don't know if you want to ask the Planning staff
exactly all the houses that are impacted or exactly how they are impacted. We have an
individual here that wanted to do something; you can see how he was impacted.
. Once again we are back at the Planning Commission. There has been no study done; we don't
know the impact. Since the impact is not known, it should be removed.
. Second, it is confusing; it overlies two sets of rules. Why do we need two sets of rules. We
are zoned R I, we should be bound by the R 1 rules; somebody gets to decide which rules are
more restrictive.
. Who decides what the slope is; who decides what needs to be done; I would like to say that is
what zoning is about; we are zoned R1, and we were zoned R1 and we want to be held by
those R1 requirements. I think this thing is just an overlay to say well if we cannot rezone you,
we are going to make you look like a hillside without rezoning you. It is effectively rezoning;
it is even worse than rezoning because we are now bound by two sets of requirements.
. It is unfair; it has been voted on; we are done that and we are worse off than if we were
hillside, which I think was the plan, was to get us to agree to be rezoned but we fought it.
. I think it is a misguided law; 15% slopes are small. Safe attractive homes can be built.
Realtors testify that it drops property values; architects and builders and civil engineers
testified in front of this group and the city that homes can be safely built on slopes up to 30%.
. Stated that the fifth amendment to the U.S. Constitution stated that no person shall be deprived
of life, liberty or property without due process of law; nor shall private property be taken for
public use without just compensation.
Com. Chien:
. Relative to due process, he asked Mr. Santoro if he was satisfied that were given their time
today.
Mark Santoro:
. Yes and no; I feel it is inappropriate to put the burden on us to remove something that was put
on inappropriately. I feel it should have been removed; and should be removed tonight and
then we should come back and discuss the issue. The people are burdened with a law that went
into place, there has been no relief granted, not even a grace period.
Com. Chien:
. One of your arguments is you said you purchased a property the way it is, therefore it should
be kept the way it is. By that argument, are you suggesting that those who purchased homes
after the law took effect should live with that as well.
Mark Santoro:
. Said if the buyer was aware of it when they purchased the property, the same rule should
apply.
Com. Miller:
. Asked Mr. Santoro to clarify his opinion relative to people who have built houses on properties
that they may not realize are past 15% and that they are now in a position they cannot remodel
or add on.
Cupertino Planning Commission
30
January 23, 2007
Mark Santoro:
· Said he understood that if the house burned down, they would let him put the same footprint
back; however, the new set of rules would apply for a remodel.
· Said staff said they should prefer to be zoned hillside because being under two sets of
restrictions is more restricting than just being zoned hillside. He said he felt it was worse to be
bound by both than it would have been to have been bound hillside, but did not feel they
should be rezoned and that is already been addressed.
· Weare not rezoned if the City Council believed that we should be bound by hillside
ordinances, then we should have been zoned hillside, which we weren't; and it has been
attempted twice and voted down.
Com. Wong:
· Asked Mr. Santoro to provide a copy of his Power Point presentation.
Frank Sun, resident:
· I think we should respect historical facts and should talk about Rl regulations and ordinance.
People purchase their property with certain expectations and they pay tax accordingly. When
you want to change it, it should be done with greater care. Look at the process. None of the
property owners affected were notified and the public did not have a chance to give input; the
Planning Commission did not have a chance to give input and the ordinance was put into place.
· There was a council meeting where they initially voted 5-0 for removal and were informed
they could not vote because it was not on the agenda. Many people feel the property owners'
rights were violated.
· Look at the impact of the ordinance; owners don't know what they have because the value is
greatly decided by the ordinance; if you don't know which ordinance applies to your property,
you don't know what you have.
· If the buyers and sellers don't know what you are buying and selling, and you have to go
through expensive time consuming process to have a survey; and if you are planning to do
something you will have greater difficulty; you need to know the slope density; you need to
know which ordinance applies to you.
· Too much power is given to the Planning Department and too much power can lead to abuse.
Ron Berti, Lindy Place:
· Resides on Lindy Place on the South side of Lindy which is an RHS zone.
· Said the ordinance says it is a hill and should be treated like a hill; if there is a slope density
formula for RHS, it should apply to R1; it has a 7-1/2% impact on the size of the home that the
people can build. He said he did not feel that was inappropriate.
Barbara Black, Regnart Canyon Drive:
· Some of the people may be concerned more about the square footage and the size of the home,
rather than the slope; perhaps the 15% is too small as far as safety is concerned. The slope
seems to be more of a safety issue; what is the objective of the 15%; is it a safety issue or is it
limiting the size of the home?
· Said she was concerned about restriction. Sometimes when a city restricts people too much,
they are not giving them the appropriate liberties they have with their properties.
Chair Giefer:
· Suggested that they focus on questions for staff. There was a question from Jim Black and
reiterated by Barbara Black to some degree as well. It was "What is the purpose of the 15%
slope density for R1 versus the 30% that applies to hillside?" What is the key objective we are
trying to achieve here?
Cupertino Planning Commission
31
January 23,2007
Gary Chao:
· As mentioned previously, the General Plan separates hillside properties from flat land
properties with a 10% average slope. Basically everything upslope of 10% according to the
General Plan are considered in the hillside area. The intent of the 15% when it was introduced
to the Council and the Planning Commission back in 2005 was to utilize that 10% demarcation
line and determine that if you have a slope that is higher, the hillside standards would kick in.
The Council could have stuck to that 10% but they decided to take a softer approach and
adopted a 15% average slope. That is how it came about. In terms of the significance of the
15% slope, if you refer to the General Plan appendix where it talks about slope density, there is
a chart that breaks down different slopes.
Chair Giefer:
· Suggested they focus on whatever information is needed to make a decision on this as
expeditiously as possible to serve the public who have been waiting for their day in court.
Com. Wong:
· Referred to Page 4-6 which is the map of the western foot hills of Monte Vista, and noted that
one staff suggestion was to implement a 15% west of the illustrated red line,. He asked how
many parcels would be affected.
Gary Chao:
· Said there were approximately 70 to 80 parcels upslope of the 10% slope line.
· Said that all residents west of the railroad were notified.
Com. Wong:
· Expressed concern about not having the exact numbers for the public hearing, and was uneasy
with the idea of telling people to spend a lot of money buying a piece of property zoned RI.
· Relative to the Scenic Circle neighborhood, he questioned how many parcels were involved.
Staff indicated the information was not available.
· He reiterated that it was affecting many people with the public hearing.
Com. Wong:
· This is one part of the puzzle and this is a second part of the puzzle. You probably wouldn't
have the answer to my third question which is that I am sure there are going to have some parts
of the city which does not have a 15% slope and I would take my neighborhood which is on
the other side of Highway 280 in North Cupertino, my parcel is flat but I assume that my
neighbors would have a 15% slope too. There might be other places in the city as well too. My
concern is that staff really has no number of how much this 15% overall is affecting. Is that
correct?
Gary Chao:
· Said the current policy is if you are in an Rl zoning district anywhere in the city with a 15%
slope or greater, it would affect you.
Com. Wong:
· If someone such as Tim Maslya applies, staff will make a case by case study to look at a
parcel, declare that the parcel looks like it is more than 15%, and the applicant will have to hire
a civil engineer to get a survey to see what the average is on their property.
Cupertino Planning Commission
32
January 23, 2007
Gary Chao:
· That is correct. He clarified that prior to this change any R1 hillside or R1 sloped lots would
have to go through that exercise anyways because of the 30% rule. How would one determine
if your lot is at 30%; we cannot determine that so usually when we go out to perform site visits
if a person has a Rl proposal it has some slope. Prior to this ordinance a 15% average a
property owner would still have to order a survey done on the property to determine the slope.
That was in the R 1 ordinance prior to this.
Com. Wong:
· Said he was concerned that they did not have the actual numbers of parcels citywide for the
public hearing. He asked how many residents were affected in the Stevens Creek Corridor
area. He said he felt there was not enough information tonight to make a final decision.
Gary Chao:
· I understand what you are asking although it would be difficult for us to come up with a exact
number because we do not have everybody's topographical map of every property in the City
of Cupertino. What we use to generate these lines or these areas were based on citywide
topographical map which is not pre size; it is done as citywide. In order for staff to come back
with an exact number of properties that are affected by this rule would entail staff to know
everybody's average slope.
Com. Wong:
· Asked why the city couldn't hire somebody to determine particular areas in certain sections of
the city that they should look like. What is the real impact? I think that if you figure out what
the real impact is, more people will provide more feedback.
Gary Chao:
· We can use GIS and based on our limited topographical citywide map, estimate the scope of
impact. Again these lines were generated by that application. It will be a crude estimate, it will
give you a target area of location of properties in the city of Cupertino that may be affected
based on those numbers but that is not accurate down to the parcel specifics. There may be
some margin of error with that. There may be some properties identified that may be close to
that line that actually or not that close or maybe they are over the 15%.
Com. Wong:
· Asked for clarification on the history of rezoning Mr. Santoro's neighborhood to RHS.
Ciddy Wordell:
· Said it went through rezoning in 1983. Through the General Plan review there was a
recommendation on the Land Use Map that was brought in that the land be hillside. There was
a lot of disagreement from property owners on that and it was not included in the hillside Land
Use element ofthe General Plan.
Gary Chao:
· Said the public hearing was to receive input from the public so that a recommendation could be
forwarded to City Council. You can make recommendations on specifics in terms of
modifications. You have heard a lot of people with different suggestions. It is in your purview
to make any sort of recommendations you see fit to the City Council.
Cupertino Planning Commission
33
January 23,2007
Com. Wong:
. Relative to Mr. Santoro's property, he asked staff if the cement wall was required in order to
build the house.
Gary Chao:
· Relative to notification of the change, in 2005 when it was amended back as part of the R1
ordinance, there was a citywide notification process. There were many issues discussed that
were amended.
. Said he was not aware of a commitment to study the affect on certain properties.
Com. Chien:
. Asked staff if they felt they should do a study, even ifit were not a scientific study, similar to
what was done with Rl. An ad hoc study was conducted of what is going on with each of the
applications that come in and fall under the ordinance.
Gary Chao:
. Said that staff could look at it based on this evening's suggestion. He said there were many
options, and they could look at what the Planning Commission wants.
Chair Giefer asked what the objective would be of such a study.
Com. Chien:
. Said he was interested in specifics, and there had been a lot of discussion this evening about
property rights, protecting hillsides, which are all valid arguments, and he would like to know
the specifics about what is happening to each application that is coming in if there are any.
. Asked staff if they felt the lawn in front of City Hall was at a 15% slope?
Gary Chao:
. There is a certain portion of it that is close to 15%, that is an accurate statement. It varies at
different places. I would say at the steepest slope it is about 15%, you have to look at it in the
form of almost like the geometry.
. Relative to Mr. Santoro's earlier comment about rebuilding, he clarified that if the home was
demolished by natural occurrence, and if it was covered under the R1 prior to 2005, it would
be grandfathered in.
. There are guidelines in the Rl ordinance that provides safeguards for those things. If it is
caused by a natural occurrence you could still build back to the original foot print.
Com. Miller:
. A house has a useful life and at some point it is time to rebuild it. We see renewal going on all
over the city; in that particular instance if it was built 30 or 40 years ago and it was built to that
standard that was there for R 1; if you wanted to rebuild it you could not.
Gary Chao:
. Said that was correct.
Ciddy Wordell:
. That would be true for any number of changes that there have been in the zoning ordinance
through the years. We see that all the time as people come in with building permits.
Cupertino Planning Commission
34
January 23, 2007
Com. Miller:
· The next question relates to something Mr. Black raised. If you are on a slope that is perhaps
greater than 15 or 30% and there is a build-able pad on that slope, so that there is a significant
flat area do we make any exceptions with regard to that when there is a flat pad in a steeper
slope area?
Gary Chao:
· Currently the way the 15% average slope is written does not account for that. It used to be that
30%, if you do not touch any portion of the property that is 30% then you are okay, you do not
trigger that rule. This may be one of the points of discussion that you would like staff to
evaluate as part of the tweaking that you are directing us to do.
Chair Giefer:
· Said they have spent six months deliberating on the Rl, with meetings held, sessions, and
soliciting as much public input as possible. The R1 issue is more than just the slope density
formula for a R1 overlay.
· She recalled staff person Peter Gilli saying that with an overlay it would affect approximately
17 hillside parcels. There have been a number of subdivisions so the parcels may have
changed ownership and it may be more property owners affected than it was at that time. She
said that new information included the Stevens Creek Corridor, which City Council added
because they wanted to protect the hillsides. The creekbed area was not part of the original
intention for the protection; it was always referred to as a hillside overlay not a creekside
overlay. She said she did not feel they should consider it because it was not part of the original
Council objective for the project. She suggested they not move any further on that item and
said she did not know how to change it so that if you are on creekbed with a 15% average slope
you do not need to meet this. She said she did not know what the language would need to be if
that would be added. She asked staff to come back with a response.
· I am trying to understand the language that would go in the ordinance. In my opinion, we are
not depriving the parcel owners that are in the hillside of their rights to subdivide. They can
still subdivide their parcels in accordance with Rl, what it does affect is the size of the home
they can put on the parcel. Just as we saw when we did the Rainbow subdivision a couple
weeks ago. It was hillside, we had no objections to that, they were subjected to the hillside
formula, the home size that could go on the lot was determined. If we want to protect our
hillside which was really the objective of this then we do need to do something to limit the
building size in the hillside.
· Asked if there were any other Commissioners who feel the creekside should be excluded as
part of the study area.
Com. Wong:
· Mr. Santoro said that if the hillside was to be rezoned it should be zoned RHS.
· Said he was not in favor of it.
Chair Giefer:
· I know he was not advocating it; it was just a new thought.
Com. Wong:
· If we are going to advocate that, we should have a public hearing to have it on the RHS. His
point was that we already had two public hearings to have it zoned RHS and it failed at City
Council. Now they are trying to do a suggestion by staff to do an overlay and it was successful
at City Council; that is why we are having another public hearing.
Cupertino Planning Commission
35
January 23,2007
Chair Giefer:
· The question I am trying to get feedback from the Commission on is at this point do we want
to give staff direction not to include the watershed to simplify matters so we can focus on any
issues that arise for hillside.
Com. Wong:
. If the parcel was zoned RHS they can still legally subdivide but they have to follow the RHS
requirements. Is that correct?
Chair Giefer:
. No; it is zoned Rl so if you subdivide you have to meet the R1 minimum standard which in
this area is the R120. Is that correct?
Gary Chao:
. Yes. It does not affect the density allowance for these properties. So we don't apply the RHS
slope density calculation for subdivision purposes to these properties. It is only design
guidelines and floor area ratio limitations based on slope. You can get the same number of lots
that you could have before this change.
Com. Wong:
. The only restriction would be floor area ratio and how it is being designed and built to be
consistent with the terrain.
Chair Giefer:
. If you are in the hillside and it is zoned RHS or R1, you still have to have a site survey; it does
not matter if it is RHS or Rl.
Com. Wong:
. Currently we have a 15% overlay right now and there is consensus that 15% overlay across the
City of Cupertino is not acceptable. I think that it is a little restrictive as Mr. and Ms. Black
pointed out. I think we need to look into it more.
. I agree with Chair Giefer that we should not include the creekside overlay which is mainly the
Stevens Creek Corridor; it should be exempted.
. It comes down to staff's recommendation that should we retain the geographical applicability
of the current R1 hillside development standards on the western line that was on the staff
report. I just do not have enough information tonight to make a decision because I want to find
out how many parcels we are talking about.
Gary Chao:
. You are touching upon two different issues. One is the slope applicability; so your thoughts on
how to deal with properties that have flat areas at the same time have sloping areas that the
property owner may not necessarily be building in, is more of a slope applicability question.
. We are talking about geographical applicability where these properties should fall into hillside
standards and we understand that you don't want to include Stevens Creek Corridor. We were
actually suggesting that to even simplify it further in that just use that General Plan 10% or
hillside transition line. Every property that falls on that line or up slope of that line would be
subject to this ordinance. That is one option that you have.
. If you just preclude the Stevens Creek Corridor there are properties in between the hillside
foothill line and the creek beds that are in normal residential areas that may be potentially
triggered. You could just say that this rule would apply to properties that are on this line or
west of this line. In our opinion that is really the intent of the initiation of this discussion of the
Cupertino Planning Commission
36
January 23, 2007
ordinance in the first place is to only address the handful of Rl properties that are located in
the RHS area, in the regular densely populated R1 subdivision tracts.
Com. Wong:
· Based on staff's clarification I am going to change my thinking. Yes, this corridor should be
exempt but then you are pitting one particular neighborhood on Monta Vista which is Stevens
Creek Corridor and pitting the folks that are closer to the RHS zoning and I do not see any
equitability here.
. My suggestion is that if the main concern is mainly from the Stevens Creek Corridor area west,
I would like to see staff do a study and to see how many parcels are affected with the 15%
slope greater. I would like to have that information available so I would feel comfortable when
we make the recommendation to City Council.
Chair Giefer:
· Would you split that by area? How many homes affected on the hillside on the 10% line and
how many homes affected in the watershed. I think that is more meaningful.
Com. Wong:
. That is fine.
Com Chien:
. It is logical to assume that intent is to protect the hillsides and therefore properties outside east
of the 10% demarcation line ought to be excluded. I don't like to assume anything, I think we
ought to keep that particular section there. I am not comfortable with overturning anything at
this point without more data. We have to look forward, the past is the past and now there is a
chance for all residents to comment on what they think about this R1 overlay.
. We need to have the study done, it does not have to be scientific but we need to get down to
the specifics. I have lobbied for close to four years to make R1 more flexible for our property
owners and I know that we have to look at the specifics. Are we talking about safety, are we
talking aesthetics, are we talking about environmental factors? Without a study and without
some more data we just cannot go off and I cannot say I support anything one way or another. I
would like to see that happen.
Com. Miller:
. I also agree that we do not know what the ramifications are. If we follow the 10% line, perhaps
all those properties are already developed. I also do not feel comfortable having some
properties being ruled by two sets of rules, both the RHS and the Rl. I think we have talked a
lot about that tonight. It should be one or the other. At some point, the City Council decided
that some of these hillside were to be RHS and some were to be Rl, we do not know what the
reasoning was back then. But they did do that and it presents problems with the people who
have developed under one set of rules and as their houses reach the natural useful life they will
find that they can not redevelop to the same extent that they had in the past. That seems to
have some inherent unfairness to it. I am in agreement that we need more study. However, I
also think that the current rules with the RHS and R1 overlay is really unfair and while the
study is going on which we do not how long it will take it might be more appropriate to just
recommend that we roll it back to where it was until we have the detailed study. Then we can
say that these properties should be rezoned to RHS or they should stay the way they are.
Cupertino Planning Commission
37
January 23, 2007
Chair Giefer:
· I think we have summed up pretty well what the planning commission would like to know. At
the time I was advocating rezoning because having this hillside R1 instead of RHS made no
sense to me.
· The primary objective of the City Council was for us to look at the hillside not the watershed
area so I would be comfortable with the 10% line. I think the next meeting should be to get all
our questions answered and see if at that point we can make a recommendation to Council.
Com. Wong:
· Said he was fine with that, but wants clarity on the study because he wants to see a more
broader study.
Chair Giefer:
· Said she was fine with the study; Com. Chien also wants more information on what the results
are, what applications have come in, and more history on the parcels that are affected. Because
of the complexity and the amount of detail that needs to be discovered by staff, six weeks
seems like a more appropriate time period to do so.
Motion: Motion by Com. Wong, second by Com. Chien, to continue Application
MCA-2006-01, EA-2006-12 to the second Planning Commission meeting
in March 2007, with a condition to have a study done by that date and staff
provide information requested by the Planning Commission. (Vote: 4-0-0; Com.
Saadati absent)
Chair Giefer summarized information for staff to provide:
. How many homes are affected by this, by location.
· How many homes in the hillside that are R 1 overlayed and how many homes on the watershed
would be affected by the categories.
· What type of movement there has been on the parcels; what applications, what restrictions
might affect those parcels that are affected by the 15% overlay with regards to setback, density.
. The hillside, the Stevens Creek Corridor and citywide.
· The same geographic inventory; if there are other parts of the city that share the same 15%
applicability; do we have other hills that are 15% in the city that are not included..
. Of the areas that area affected, how many still have potential development possibilities.
OLD BUSINESS:
Chair Giefer:
· Asked staff to report back on the issue of tree removal at Blackberry Farm. There are some
additional Oak trees being removed in Blackberry Farm after the Planning Commission gave
direction that they should come back to the Planning Commission before they are removed.
One tree is being removed by the entrance to make room for buses and it is not related to the
Corridor restoration.
NEW BUSINESS: None
REPORT OF THE PLANNING COMMISSION
Environmental Review Committee:
Com. Miller reported that the only application was the Pacific Resource application which
Cupertino Planning Commission
38
January 23, 2007
received environmental approval.
Housin2 Commission: Com. Wong reported that the BMR program was reviewed.
Mavors Monthlv Meetin2 With Commissioners:
Com. Miller reported the following:
. Teen Commission will hold a Rock Concert;
. The Library is considering drilling a hole between the library and the Coffee Society and they
found it conflicts with a reading area they want to have for adults.
. Fine Arts Commission will allow pricing of art in Quinlan Center to help local artists. Fine
Arts Commission is also working with Pinn Brothers and Whole Foods for their developments.
. Telecommunications Commission is addressing cell phone tower issues. Reported that the
State is considering taking away all control from the cities with respect to approving cell phone
towers.
. Some members of the Senior Commission are looking for ways to meet the needs of people in
their 50s.
Economic Development Committee: Com. Chien reported that the city has an online feature to
look up specific property information.
REPORT OF DIRECTOR OF COMMUNITY DEVELOPMENT:
. No report.
ADJOURNMENT:
The meeting was adjourned to the February 13, 2007 Planning
Commission meeting at 6:45 p.m.
SUBMITTED BY:
/'
. ,
: i /' ~. (). ~ A ,
,(j!A/~~ ~
Elizabeth alliS, Recording Secretary
Approved as amended: February 13,2007.