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PC 11-14-06 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 CITY OF CUPERTINO PLANNING COMMISSION APPROVED MINUTES November 14,2006 CUPERTINO COMMUNITY HALL 6:45 P.M. TUESDAY The regular Planning Commission meeting of November 14, 2006 was called to order at 6:45 p.m. in the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, California, by Chairperson Marty Miller. SALUTE TO THE FLAG ROLL CALL Commissioners present: Chairperson: Vice Chairperson: Commissioner: Commissioner: Commissioner: Staff present: City Planner: Senior Planner: Assistant City Attorney: APPROVAL OF MINUTES: October 24.2006 Planninl! Commission minutes: Marty Miller Lisa Giefer Cary Chien Taghi Saadati Gilbert Wong Ciddy Wordell Aki Honda Eileen Murray Corrections as noted: . Page 8, Vice Chair Giefer: Bottom of page, first bullet: Replace "longevity" with "extinction" . . Page 9, Vice Chair Giefer: Bottom of page, first bullet: Change "heritage" to "specimen" . Motion: Motion by Com. Saadati, second by Com. Chien, to approve the minutes of the October 24, 2006 meeting as amended. (Vote: 5-0-0) WRITTEN COMMUNICATIONS: Ms. Wordell noted receipt of an email relative to an agenda item. POSTPONEMENTSIREMOV AL FROM CALENDAR: None ORAL COMMUNICATIONS: Rhoda Fry, Cupertino resident: . She expressed concern about global warming and the national debt and how she felt they Cupertino Planning Commission 2 November 14,2006 posed serious threats to future generations, particularly relating to the Stevens Creek Corridor Project. She said while East Palo Alto plants 1,000 trees and Berkeley intends to ban construction within 30 feet of creeks, the city plans to destroy nearly 200 habitat providing trees and compromise the wetlands by building too close to the Stevens Creek. The majority of these trees make way for new development; an 8 foot wide paved bike road and a reconstruction of the 90% non residence money losing business at Blackberry Farm. While the city is careful to protect lawns at Memorial Park by cutting down on events, the misuse and overuse of Blackberry Farm and the delicate riparian habitat now is causing trees to fall so much so that the city has fenced offthe property. . By rebuilding the event compound, it will retain nearly all the existing event impact and add over 89,000 users, resulting in more environmental casualties. It was thought that the business would make more money to fund more library hours but the opposite is true; we are spending over 2 million dollars to built it and about $300,000 a year to subsidize it. The non-residents benefit; and what suffers is the environment, congestion on neighborhood streets and every restriction of resident access to the property that we are paying a 2.4% utility tax to own. This also violates our General Plan; the overall project will cost over $16 million. . She expressed concern about where the money was being spent and said that the city was being irresponsible by not addressing its $50 million debt. . She requested that the Stevens Creek Corridor project be brought back for review, which she said the Planning Commission expressed interest in at the May 23 meeting. She urged the Planning Commission to think globally and act locally and focus on fiscal responsibility. Chair Miller: . Asked staffto comment on bringing the Stevens Creek Corridor project back for review. Ms. Wordell: . Said she was not aware of the options for accomplishing that; the Planning Department is not involved in that except for the environmental reviews. She said staff would bring a report back to the Planning Commission. CONSENT CALENDAR: None PUBLIC HEARING: 1. ASA-2006-08; RM-2006-13 Cliff Cowles (Mojgani Residence) 21180 Grenola Drive 10123 No. Wolfe Road Consider an appeal of a Residential Design Review to construct a new, two-story 4,219 square foot residence. Consider an appeal of a Minor Residential Permit for two-second story rear-yard decks on a new 4,219 square foot residence. . Planning Commission decision final unless appealed. Continued from the October 10, 2006 Planning Commission meeting. Aid Honda, Senior Planner, presented the staff report: . Reviewed the application which was a continuance from the October 10, 2006 meeting when the Planning Commission considered appeals of a residential design review and minor residential permit approval for a new two story residence with two second story rear yard decks. . She reviewed the comments from the Planning Commission directing the property owner to make some revisions, and the property owner's responses, which are outlined in the staff report. Cupertino Planning Commission 3 November 14,2006 . Staff recommends additional language to ensure privacy protection for the adjacent neighbor to the west. Staff also recommends that conditions be added that state prior to issuance of building permits, the property owner reduce the balcony to a maximum 4 foot depth and provide a functional and attractive 5 foot high screen to be perpetually maintained and recorded on the property to prevent privacy impacts onto the adjacent western property. . In accordance with the Planning Commission's recommendation, staff recommends that an additional condition on landscaping be added that landscaping be revised to provide immediate privacy protection and at installation of the master bedroom balcony, if it is approved, and to provide the size and distances of all plantings on the landscape plan. . Noted that any decision of the Planning Commission tonight is final unless appealed to the City Council. Staff answered Commissioners' questions relative to the application. Cliff Cowles, project designer: . Said the color chips and colors were specified with the drawings when they were first submitted; and that the proposed colors fit well in the neighborhood. . If you reduce the balcony to four feet, the door cannot be opened, resulting it is not serving as a real balcony. You are either going to allow the balcony, or you are not going to allow the balcony, and therefore are making the decision that whenever a neighbor says that they have an issue with someone seeing off that balcony, you are making the decision with this house, and it has not been made before in Cupertino. The real issue is to provide very adequate privacy landscaping. . Said they have reduced the height, even though in that neighborhood there are at least a dozen homes with a high entry. They are not arguing for that now; one foot is a good compromIse. Mehrdad. Mojgani, applicant, reviewed the responses to the Planning Commissioners' comments from (he October 10th Planning Commission meeting: . Relative to pullback of the second story balcony in the master suite so that it is non-intrusive to their neighbors on the west side, she said they have already reduced the size of the balcony to almost half the original size; the balcony is aligned with the edge of the house and it is no longer sticking out. . In addition to the professional privacy landscaping that you are going to provide, we will provide screening on the portion of the balcony facing our neighbors so that the west side of the neighborhood is going to be covered and you won't be able to see anything directly into the backyard. . The entry feature height should be lowered to be more in alignment and symmetrical with the front elevation turrets. Homa Mojgani, co-applicant: . Presented photos of homes in the neighborhood and commented on the privacy landscaping and comparison of older parts of the neighborhood to the newer construction. She said she preferred not to put in extra plants if they were not required. She reported that she spoke with other neighbors about the proposal's compatibility with the neighborhood. Eileen Murray, Assistant City Attorney: . Said that it was public information after presented to the Planning Commission. Cupertino Planning Commission 4 November 14, 2006 Jessica Rose, Appellant, Ann Arbor Avenue: . She said they were encouraged at the October lOth meeting since the Commission's comments validated a concern that they and the Garden Gate pocket had for a long time of how to transition the neighborhood between the old and the new. The issue is not if new homes will be built in Garden Gate, but how to guide the development. We must be considerate of existing homes and also allow new residents to design and build a home that is current in style and functionality. She said the comments demonstrated how they can begin to bridge the gap between those two factors. . After the meeting she said they felt the system that they would have never had under country jurisdiction, worked. Their comments targeted landscaping and architectural enhancement features as the two key areas that would need modifying to allow this large house to be harmonious with the existing area. It seemed like a win/win; the suggestions were cosmetic. The size and layout of the 4200 square foot house remains untouched and yet its presence would be softened. None of the Commission's comments reflected the interior size of the house; the dream house remains; the kitchen is untouched, the master suite, the multiple bedrooms bones of the house that are usually at the core of creating one's dream house, are still original to the property owners liking. The recommendations demonstrate that by exercising some care and consideration when planning exterior features and landscaping, existing privacy and the visual impact of a large home among smaller homes can be lessened. . She expressed disappointment at the minimal response of the property owner to the Planning Commission's recommendation, which provided clear direction on the project. At the previous meeting the Planning Commission withdrew the motion to uphold the appeal with the 9 modifications at the request of the property owner, who instead opted for a continuance of just one month to address all of these issues on their own, while working with the Planning Department. She said that they were frustrated and confused because the timelines for submitting comments were not met by the applicant. . She said they were requesting the Planning Commission to uphold the appeal of the project and include the following conditions for approval: ../ Uphold the appeal; ../ Require that the master bedroom balcony be a faux or false balcony; it was suggested last month and it was supported that the balcony was intrusive to their privacy. A faux balcony will allow the exterior to have the look of a balcony, the interior room will enjoy the balcony window light and fresh air and it will not provide a landing area for neighbors to view over the entire backyard and house. It was established and agreed at the last meeting that this was an area of concern. ../ It needs a true landscaping plan that protects privacy; it needs to be accurate and include the size of the plants, spacing, location, and show the cones division from the homes ../ Landscaping the front yard: Add the brick and rock features on the front elevation as recommended by the Commission last month. It will soften the imposing nature of the design. . Relative to the house color, she said that most homes are now abandoning the stucco and tile roof look, popular in the 80s and 90s. Perhaps the property owner might want to consider a more contemporary color scheme for the house and roof. . Lastly, regarding the 5 foot trellis idea that was introduced late last week, we have not seen it yet as it was proposed after the November ih deadline for comments, but it sounds awful and pointless. The need for a 5 foot trellis on a railing validates that this balcony is an unreasonable imposition on our privacy. It also negates the purpose of a balcony which isn't to view into your yard and beyond; again, we have made this point already and you have spoken in agreement with us. We asked you to not change direction at t his point. Cupertino Planning Commission 5 November 14, 2006 Elena Herrera, Granola Drive: . Said she was not opposed to balconies, but would work on the placement to ensure that it is not intrusive, perhaps recessed into an inner courtyard, and not directly over the adjoining properties. . She agreed that the view from a window is just as severe as a view from a balcony, and said she felt that balconies deserve to be in areas where the acreage and hillsides support the use of a balcony. The proposed home is a very tightly drawn home that is five feet on one side, ten feet on the other and the balcony is not appropriate. . She said the 4200 square foot home was not within the scope of the neighborhood, and there was no indication that the color was going to be anything less bright than presented. She said that the color scheme should help with the softening of the mass. . Said she was not recommending the Los Gatos model of dictating what type, size and style of gingerbread to put on the Victorians; nor the Carmel practice of dictating the shape and color of the rooflines. Cupertino is a city that does care about rebuilding the community and it is going through a huge rebuilding era right now and it is incumbent upon the community members and commissioners to think about building smartly, enhancing the value of the neighborhood and the community as a whole, but maintaining the quality of life. Chair Miller opened the public hearing. Sharon Adams, Grenola Drive: . Said her home was affected similar to the residents of Ann Arbor who have no sunshine because of the home next door. When the sun comes up there is no sunshine until another couple of hours because the sun must go around the big house next door; the sun goes down in the summertime at 4 p.m. because of the house on the other side. She said there was a 60+ year old tree in the back yard. Jennifer Griffin, Rancho Rinconada resident: . Said she empathized with the Garden Gate district, because they were attempting to annex into Cupertino from the county at the same time that Monta Vista and Rancho Rinconada were. There were a number of problems the residents of that neighborhood tried to deal with; there were some large homes being constructed in Garden Gate prior to 1999. . She said it was a volatile topic in the neighborhood; and hoped that the home that is constructed would be something that the neighbors and the owners would be proud of. Hopefully the homes built there now are reflective of the current R1 ordinance in Cupertino which everyone has fought to try to have homes that are sensitive to the neighborhood. . Said she was pleased that there are second story setbacks on the homes now, and that the city has done a good job in coming up with larger homes with a stepped outline. . She said it was a good idea to pull back the balcony as much as possible because Garden Gate has larger lots; but even then there are neighbors who are used to a lot of privacy in their back yard because they are all one story. Les Bowers, Grenola Drive: . Said the single story homes are not going to go away in the immediate future in Garden Gate, and some considerations should apply. . He said relative to the privacy planting proposal, the issue in question is the oak tree; the branches of that tree now reach the backyard fences of the new owners and his backyard fence. Does the privacy planting subject the neighbors to trees that will extend considerably over the existing neighboring properties? . He said that if all the trees projected along the back fence grow to maturity, it will be very private, with 80 feet height. He said they did not mind because their bedroom looks Cupertino Planning Commission 6 November 14,2006 immediately up to the new house balcony and they do need privacy. Bahar Mojgani, Grenola Drive: . Daughter of Mr. and Mrs. Mojgani, spoke on behalf of her parents' desire to be receptive to the neighbors' concerns about the design of their proposed home, and said they wanted the home to fit in with the neighborhood. . She said she and her mother attempted to meet with neighbors regarding their concerns but were not well received when they went to talk with some of the neighbors about their concerns. Chair Miller: . Asked staff to address the issues raised regarding the lack of sunlight and sunshine on other homes and privacy planting extending into neighboring yards. Ms. Wordell: . Relative to the tree issue, she said she did not think they had a criterion of not having trees extending over into other peoples' yards. A neighbor may comment on the neighbor's proposal, and if there is a preference for a smaller canopy tree, staff would put it into the mix and see if the property owner is agreeable. She said it was probably still on the table, although he said for privacy reasons he would prefer the larger trees. It is something that could be negotiated. . She said she did not recall any wording in the General Plan or ordinance about sunlight. Chair Miller: . Relative to the sunlight issue; it is not in the General Plan, but we have looked in the past at daylight planes, and I thought that our ordinance was consistent with our setbacks on the second story consistent with the concept of the daylight plane and allowing the neighbors to have sufficient sunlight. .Ms. Wordell: . Said the regulations are geared toward decreasing the size of the second story, increasing the size of the setbacks. In that sense it does get at the idea of allowing a greater space between the second stories of houses. Chair Miller closed the public comment portion. Com. Chien: . Said the ordinance recognizes the right to improve and build on property, and it has gone through several revisions. He said he lobbied for more rights, and it still finds a very fine balance between the right to a neighbor's privacy and the right to improve. . He said the total space was not negotiable, because the property was purchased knowing how much they could get and they should have every right to get that amount of space. The balcony was negotiable, and you reduced that and I appreciate you doing that. I appreciate you going out to the neighbors to try to make that happen. . Said he was disappointed in the landscaping plan; previously it was deficient and appeared to have been done at the last minute and didn't provide any cones of vision. He said what was submitted in the packet was beginning to resemble a privacy plan, however was still not sufficient because it did not show the house and the cones of vision. Although someone was hired to work on it, he questioned if the hired people had read the ordinance and worked in the city before and knew how to do a privacy planting landscape plan properly. . He said he was concerned that it was brought to the Planning Commission; the process for Cupertino Planning Commission 7 November 14, 2006 approval of a house is outlined in the ordinance. The story poles go up and people can see it and have a chance to comment on the proposal. . It is difficult for people to comment when they cannot see the plan; some of the neighbors may still not have seen the landscape plan, which is a concern that has not been addressed. Asked for others comments before moving forward. Com. Saadati: . Said Com. Chien addressed some of the key issues and he concurred with most of them. . Pointed out that the property owners also have the right to develop their property, and if they comply with the ordinance, they should have the right to build it. . He said previously they discussed many issues regarding architecture; however, their role is not to design buildings, but to make sure it complies with the ordinance. Some suggestions were made which the applicant can consider or not consider, and based on the changes made, it appears that an attempt has been made to address those. He expressed concern about the front which is visible from the street, and even though the entry feature met the intent of the ordinance and there are some other projects that are already approved with the same dimensions, the requirements are being changed. . The color scheme has been softened; relative to the backyard, he said he was not so concerned about the back yard architectural feature. He said that privacy needs to be addressed. . The balcony size has been reduced and the Director of Community Development approved the project with the reduced sized balcony. It appears the applicant is willing to put the screening on the balcony; however, the proposed landscaping plan for privacy has not been studied. He suggested that it be the issue discussed and have the Director of Community Development review that and if it complies with the ordinance, then they have the right to have it approved on that basis. . He concurred with Item 1 recommendation including the amendment that the landscape plan is done in such a way that the privacy of the neighbors is addressed. Vice Chair Giefer: . Said she felt the applicant has made some effort to satisfy the conditions that the Planning Commission was concerned about. . She said she appreciated the effort to lower that, but it was still quite large. She noted that the applicant satisfied the request made regarding the removal of the bay window since it did not fit architecturally with the front of the building, which shows effort on the applicant's part. . Relative to the color scheme, she said she was satisfied with the sample paint chip, which is a good choice of a non-reflective color; the roofing material is less bright than what was understood they were going to use. She said it would be a very large yellow building without some plant materials in the front to satisfy the concern. . Said she was disappointed that there is no change in the balcony size; and she had hoped that they would look at aligning both balconies by either pulling the master closet forward, giving square footage in the master bedroom, which would mean running the roof differently. . Expressed disappointment that the Planning Commission received a hand drawn and somewhat incomplete landscaping plan, and said she was also concerned that there is going to be a deodar cedar in front of Mr. Bowers' 50 year old redwood tree, it, potentially robbing it of its daylight. . She said the landscaping plan needs more massaging for the type of materials with consideration for what is around it because there is no view in that corner. She suggested that the redwood tree be given some room. Cupertino Planning Commission 8 November 14, 2006 . The placement of the other plants and the viewing cone are good efforts; however, it still needs more work, either at the staff level or by sending it to DRC. . Said her position on the balcony hasn't changed; it is invasive for the adjacent neighbors on the next street whose lot runs along the length of the applicant's. She said she preferred the faux balcony, and did not support the balcony as proposed, even with a lattice since it would require maintenance and one can see through the lattice. She said she supported removal of the balcony and make it a faux balcony because they are viewing the same balcony presented a month ago which no one liked. She said she did not support the proposal. Aid Honda responded to Com. Wong's questions: . Explained that balconies require minor residential permits, hence, it would go through the planning permit process. There are no meeting notices sent out with the plan showing the proposal for the balcony. The balconies do need to have a minimum 15 foot setback from the side property line, which the property owner has provided. . It also has to meet the finding that they need to provide some privacy protection as well and try to create as little privacy impact on the adjacent neighbors. It would be up to the Commission to decide how much it could be mitigated through landscaping or removing the balcony. . She said it does not address additional setbacks for the residents if a balcony is proposed. The balcony itself needs to have the minimum 15 foot setback. . She said that the applicant should provide the landscaping plan for staff review; however staff has not had adequate time to review the present plan. The process would be with the application with the minor residential permit application, with the two story residential permit, and that it be submitted together. Com. Wong: . Questioned why the application was brought forward to the Commission since it was not complete. He expressed concern about not having the full landscaping plan 48 hours in advance to allow staff and the Planning Commission to review it, and suggested that the issue should be addressed in the future. Ms. Wordell: . Said it is not absolute black and white that every single thing has to be in or the applicants won't be heard; staff has attempted to be flexible enough to allow an application to go forward if enough information was present to make it significantly worthwhile to have a meeting. Staff tried to work with the applicant and asked for the information early, but proceeded although it was not available. Aid Honda: . Stated that they had given the applicant a deadline, and the landscape plan was the one received from the applicant. Staff asked the property owners if they needed additional time to work on the landscape plan and they responded that they wanted to proceed with tonight's meeting. Com. Wong: . He pointed out that the area of Garden Gate has had extensive remodeling and rebuilding, but the residents had good communication about the proposed plans. He said he did not feel that good communication occurred in the present instance. . He said that whatever is decided, improved communication is needed, so that the Planning Commission is not put in the middle, and it would be ideal if two parties could communicate and try to resolve it between themselves rather than have the Planning Commission make the Cupertino Planning Commission 9 November 14,2006 difficult decisions relative to color and whether or not there should be a balcony. . The applicant has made some compromises and the colors have been muted, and they are moving toward a positive direction. He noted that wood siding, brick or rocks is not in line with a Mediterranean style. If there is no agreement, the Planning Commission will have to make the decision. . He said he was also disappointed with the landscaping plan. He said that if there had been a more complete landscape plan, shared with staff since the two appellants were not available, it would have allowed more questions to be answered. . Said he was concerned about putting deodar cedars and magnolia in the back area; they are large trees, but are they compatible with the redwood tree? Regarding the landscaping plan, instead of going back to the Director of Community Development, it should go back to the DRC for review. . He said the neighborhood is in transition; three Commissioners had the opportunity to review the R1 ordinance, and he felt the privacy protection plan and the notification was put in there so that neighbors could talk to each other. . The goal of the discussion is to ensure that the landscaping privacy plan is intact; he said he felt they had a better plan in the front yard that will soften the front. He said he was very conflicted about the decision regarding the balcony. . The applicant did reduce the size of the balcony and are remaining firm on the 6 foot opening. He said with a six foot balcony, he would prefer having it be a solid material rather than open, since it would take time for the privacy protection plants to grow. The architect suggested that if the balcony was reduced to four feet, it should be a faux balcony. The R1 ordinance does provide that you can have the balcony, the only concern is that the privacy protection plan is in place to protect the neighbor's property rights and privacy protection. The other thing is to give the flexibility that the balcony is allowed in the ordinance. . He said aside from that, he would uphold the appeal with the following modifications. Chair Miller: . Said his comments were similar to other commissioners' . Relative to communications, he said in his opinion the primary reason for the continuance was to give the neighbors and the applicant an opportunity to work together and reach a compromise solution, and it is disappointing that it did not occur. He said if the commissioners are asked to impose a solution, they will do so, but the solution may not be the one that either the neighbors or the applicant would have desired; therefore it is better if the neighbors and the applicant try to work together to achieve a level of consensus. . Said there are a number of issues with respect to the look and feel, the balcony, and what the applicant has made some serious efforts to address the concerns of the Commission. He said the balcony was still an issue because he felt because of the distances between the houses, the balconies were not the best idea. However, they are in the ordinance and the applicant has a right to request them. The real issue is privacy and the balcony is appropriate as long as there is a privacy plan to ensure that it is not intrusive to the neighbors. . He said they were back to the same question partly because the applicant was not able to show his privacy planting scheme before tonight, and it is not certain whether the issue has been addressed or not. He said if it was addressed, he was not opposed to the balcony because the ordinance does allow it. If it is not addressed, he said he concurred with two other Commissioners that the balcony needs to go. . He said he was satisfied with the colors; they are muted and it is not the neighbors to decide what the house color should be. . The applicant was also asked to soften the front elevation and it is not apparent that it was done. He said it amounts to what the final landscaping plan will look like and whether that Cupertino Planning Commission 10 November 14,2006 addresses the remaining issues that have been brought up. . A decision is needed whether to approve it at this point with staff review or with DRC review, or with the third possibility of bringing it back for the Planning Commission to look at it, which he felt was the best choice, because if there is some dissatisfaction at one of the other levels, it will come back again and people will go through this two more times instead of just one time. . He suggested that because the landscaping plan has not been seen and evaluated completely, it be brought back once more with respect to the landscaping and the balcony issue, and whether that is addressed by the landscaping, and pass on the remaining issues. Motion: Motion by Com. Wong, second by Vice Chair Giefer, to uphold the appeal and modify the Community Development Director's decision regarding Application R-2006-08 and RM-2006-13, including the following modifications: The entire landscaping plan must be complete before it returns to the appropriate body; Ensure that the deodora cedar and magnolia trees do not affect Mr. Bowers' backyard relative to the redwood tree; Ensure that the privacy planting is complete regarding the cone of vision; Staff to confirm that the east and west elevations are correct; Support the 6 foot balcony but ensure that the privacy planting is sufficient; Applicant to work with staff on a material other than lattice for the balcony. Amendment by Vice Chair Giefer, second by Com. Wong: Because new information was introduced tonight and it was not available for public comment in advance, the Planning Commission looked at it, but the public did not have time to review it; it be stipulated that all the information has to be to staff so that it can be publicly available and mailed to the neighbors well in advance of the hearing. Clarified that if this passes and it comes back, if the neighbors are unable to work out privacy with regards to the balcony, at that time they will still have the latitude to remove that if necessary. Said she did not want to be locked into a 6 foot balcony at this point if those other issues are not satisfied. Com. Wong: . Expressed concern that agreement is needed to either support the balcony or not. If the balcony is agreed to, the applicant knows they have to talk to the neighbors, and determine a way to do the privacy protection plan complete to have the balcony. . Clarified that his proposal for the balcony was that it be an enclosed balcony, with a 5 foot high solid wall the radius of the balcony. Vice Chair Giefer: . Said she would prefer to eliminate the balcony and put in a faux French window or redesign that portion of the house and pull it forward to make it less invasive. . She said before agreeing to a 6 foot balcony, she needed to know what it would be like. If it is going to be a completely enclosed stucco wall, it is just another small room, and why would it not be included in the square footage of the house? Com. Saadati: . Reiterated that the issue was privacy; he suggested that it be brought back and if it is not addressed, the staff doesn't have to bring it back, but postpone it. He said they did not have to design the balcony, but focus on the issue of privacy. Cupertino Planning Commission 11 November 14, 2006 Com. Chien: . Said they should not be designing the balcony and get locked into anything for the balcony. Relative to the process, Com. Wong said that his motion was to uphold the appeal. Aid Honda: . Said that the Commission could uphold the appeal and modify the Director's decision; at that point the property owner would have to meet those conditions in order for them to move forward. Ms. Wordell: . Clarified that if the Director's approval is granted with modifications, that is the decision; but if the privacy plan is brought back, that is what would be considered either at the DRC level or Planning Commission, whoever hears it. It would be approved with that one outstanding item to review. Chair Miller: . Relative to the issue of the balcony, he questioned why the balcony couldn't be approved subject to the applicant showing a satisfactory screening and privacy for the neighbors, and allow the applicant to design the balcony or remove it. The Planning Commission would review it as part of the overall plan. Vice Chair Giefer: . She said it would only be the privacy screening that comes back to the Planning Commission, and she had a problem separating it because she felt the balcony is one of the most intrusive parts of the privacy. It is at the heart of the privacy issue. Chair Miller: . It is, so you say the balcony is approved subject to a satisfactory privacy screening plan; then if they don't show us a satisfactory privacy screening plan, the balcony is no longer approved. Vice Chair Giefer: . Asked if it would be more than just the plantings that are part of that screening plan; or just talking about them bringing back a landscape plan. Chair Miller: . Said he was referring to a privacy screening plan which is more than just a landscaping plan. Vice Chair Giefer: . Said that is the reason she was looking for clarification on it. Chair Miller: . Said he was willing to leave it open so that they have the flexibility to design whatever they want to design if they can come up with a creative idea. Ms. Wordell: . Said it appeared the only difference between the points of view is that Vice Chair Giefer wants to be explicit that the balcony can go if the privacy protection, whether it is a wall or its landscaping is sufficient or not. The difference is that the motion was that the balcony is approved, subject to an adequate privacy protection plan, so you would have to be satisfied Cupertino Planning Commission 12 November 14, 2006 with that plan, or you wouldn't approve it. Vice Chair Giefer: . She said normally privacy protection is addressed through landscaping, and she was looking for it to be more explicit and be more than landscaping in this case, perhaps by encasement of the balcony with solid material. Vice Chair Giefer withdrew her second of the motion; and Com. Wong withdrew his motion. Eileen Murray, Assistant City Attorney: . Clarified that the item could be continued to come back with a privacy plan and allow the applicants to make a decision about the balcony. Applicant: . Said he would rather not continue the application; he would like to see the balcony issue done so that the neighbors can get together on the privacy issue. Appellants: . Stated they were taken aback because they left the last meeting with the direction for the balcony to be significantly reduced or eliminated, and now it is the same size before it was at the first meeting. . Said they expected the Planning Commission to do what they indicated they would do the first time, to significantly reduce or eliminate the balcony, not to keep it the same. . One appellant said he was prepared to go to the City Council. If a continuance is taken, he said the balcony should not be closed. All aspects of the project should be continued as well, in fairness to everyone involved. . If the balcony ever gets approved, there is going to be an appeal to the City Council, and delaying that is not helpful at this point. The process should move forward. Chair Miller: . Clarified that the issue for the Planning Commission is privacy. Motion: Motion by Com. Wong, second by Com. Saadati, to deny the appeal; with the stipulation that the landscaping privacy plan must be very complete. Com. Wong: . Said that the most important issue was communication, and he felt they were moving toward progress; but the bottom line is do they want the balcony or not. He said he was not comfortable deciding to give them the balcony, and the neighbors feel it is an invasion of their privacy. . There is a privacy protection plan that can help mitigate the concerns, but likely won't please the applicant. He suggested that the applicant consider reducing the balcony, make it solid, or remove the balcony. . He said the City Council will be put in the same position and he suggested that instead of putting staff in the middle, they try to improve the communication. . Said he would prefer the landscaping privacy plan to be reviewed at the Planning Commission level. Cupertino Planning Commission 13 November 14, 2006 Com. Saadati, the second of the motion, concurred. (Vote: 3-2-0; Vice Chair Giefer No; Com. Chien No.) Com. Chien explained he voted no because the appeal specifically states a privacy concern, and he felt the privacy plan was insufficient. Chair Miller declared a recess. 2. TR-2006-16 Yuh Jiuan Lin 10740 Brookwell Drive Tree Removal and replacement for a deodar cedar. Planning Commission decision final unless appealed. Aid Honda presented the staff report: . Reviewed the application for tree removal and replacement of a deodar cedar as outlined in the attached staff report. The property owner was not aware that the deodar cedar was a protected tree. A stop work order was put on the tree removal when the city's Code Enforcement Division received a complaint that the tree was being removed. The City arborist determined that the tree was in good health; however, because of the severe pruning of the tree and removal of the branches and foliage, it was determined that the tree was a total loss and recommended its removal. . Staff recommends that the tree be replaced with one 84-inch box deodar cedar tree, or two 72-inch box deodar cedar trees, or three 48-inch box oak trees, or one field grown oak tree. . Staff recommends that the Planning Commission approve the tree removal to allow the remaining portion of the tree to be removed and also require replacement trees equivalent to the cost of the removed deodar cedar that could include one aforementioned trees. Yuh Jiuan Lin, applicant: . Said that he was concerned about safety on his rental property with the large tree. . Said that they did not know the name of the company who cut the tree down. Vice Chair Giefer: . Asked the applicants, other than talking to someone in property management, if they considered contacting the city prior to having the tree destroyed. Yuh Jiuan Lin: . Said he was not aware of the rules, and did not know the species of the trees in his backyard. Chair Miller opened the public hearing. Jennifer Griffin, Rancho Rinconada resident: . Recommended that persons considering removing trees contact the city, and if needed contact a licensed tree service. She said the loss of a tree that size is staggering to the city's canopy. . She reported that recently a street tree which was 10 inches across was cut down by the property owner without a permit. . She said that Cupertino has a responsibility to maintain the integrity of their trees and the city. She commended the city for their outreach in informing residents about the protected trees. . She said she hoped that there would be a successful resolution and that a protected tree would be planted. She suggested a covenant be placed on the property that there is a tree there. She said she assumed the replacement tree would be protected particularly if it is a deodar or an oak, and suggested that a rider be put on the property to that effect. Cupertino Planning Commission 14 November 14,2006 Phil Tracey, Brookwell Drive: · Said that there was distress caused to his family by the removal of the tree and also other people in the neighborhood and visitors, who expressed amazement about the removal of the healthy tree. He said that in deference to the previous owner, he recommended that a deodar be planted as a replacement tree. · He ~ommended the Planning Commission and city for following up on the issue. He said he did not see the actual removal of the tree, but that it occurred in the early morning hours by an unknown tree removal company. · He said they were following up on it and hoped to have a successful resolution on the issue and a new tree put in its place. Chair Miller closed the public hearing. Vice Chair Giefer: . Said it was another timely example of why the city is reviewing the tree ordinance. She said in this case she felt the applicants were ignorant of the tree policy which doesn't make it right or excusable. . She suggested that the replacement be a very large deodar cedar; if they are not able to replace it with a 84 inch box, she suggested replacing it with another very mature tree, a filled grown oak, because the trunk is going to be 10 inches or better at that point. . Additionally, she said she wanted to know what other protected trees are on the property so that there is not a reoccurrence, and if the replacement tree is going to be recorded with the deed of the property, they also record any other trees that are pertinent. She said it was important to be clear in terms of what trees can and cannot be removed in the future. Com. Wong: . He suggested, as the demographics of Cupertino change, that brochures be printed in multiple languages to educate as many residents as possible. He said he felt Mr. and Mrs. Lin were remorseful and hoped that the public hearing would inform and educate people about not cutting down trees without checking with the city or hiring a professional tree cutting service who is attuned to the city ordinance. He cautioned that just because it is a professional tree service, sometimes they are not aware of what the city ordinance is. Com. Chien: . Asked staff if it was their opinion that the options presented in terms of the replacement trees equate to the appraised value of the tree of$15,000. Aid Honda: . Said it was correct; that it was roughly equivalent to $15,000. Com. Chien: . He asked staff to explain the rationale behind requesting the applicant to replace the tree on a dollar for dollar basis, as it has not always been the practice to do so. Aid Honda: . She said it was being done because the tree was taken down and as part of the tree evaluation, the city arborist did a tree appraisal, and used it as a marker to determine what that replacement tree would be. It would be up to the Commission if there is anything less required of the applicant, but it is just given as a marker to start a means to review. Cupertino Planning Commission 15 November 14,2006 Ms. Wordell: · Said the rule of thumb also has been that if somebody is requesting a tree removal because it is destroying a sidewalk, is too close to a building or has structural problems, it is an innate problem with the tree. The direction from the City Council has been that if a tree is removed illegally, there is a greater price to pay. Com. Chien: · Said he did not sympathize with the applicant because the rules exist and while the applicant may have expressed remorse, it has been repeatedly expressed by the Planning Commission that ignorance of the rules is not an excuse. He encouraged the applicant to work with staff to choose an appropriate replacement tree which would address the applicant's concerns regarding the dropping of the leaves and a potential structural danger. . Referring to the $15,000 fee, he said he was not comfortable with the rationale of replacing a cut tree, dollar for dollar. The ordinance does not specify that rationale, and is presently unclear on requiring replacement. He said they can only rely on what has previously been presented to the Commission and recalled the Suburban House furniture site issue which was similar. He said he did not support a rationale that asks this applicant to replace dollar for dollar when it has not been done in the past. · He said the trees should be replaced on a one-for-one basis; there is only one tree and it should be replaced. Because it is a species listed on the protected tree as opposed to one that is in the privacy landscape plan, that particular species should be replaced. He suggested $7,500, half of the appraised value if they can find a deodar cedar. · He said it was a real life case that has made them consider how to craft the ordinance, because they are seeing real impacts of the case and the pros and cons it offers the residents. Com. Saadati: · Said it was disheartening to see a tree of such a large size be removed. Relative to leaves clogging gutters, there are other ways of preventing that such as netting that can be installed over the gutters to prevent leaves from getting in the gutters. · He said they need to find out who removed the tree and impose fines on them. A deodar cedar should be the replacement tree, and relative to the size and the cost, it needs to be consistent with what has been imposed in the past. Relative to the numbers, the future has to be taken into consideration; if too many trees are planted, in 10 or 20 years some will have to be removed. Chair Miller: · Said he also was sad to see the tree removed; and he agreed with Corns. Chien and Saadati that the remedy should be consistent with past practice. He pointed out to the applicant that he may have justification to take action against the agent he hired to purchase the property with, because the agent should have known better than to give advice in an area that is beyond their expertise. · Relative to replacement of the tree, he said he agreed with the comments made. There needs tp be a substantial tree there, whether it be as staff recommended another deodar cedar or an oak tree. Leaves in the gutter are something we all deal with. Motion: Motion by Com. Chien, second by Com. Wong, to approve Application TR-2006-16 with the modification to approve the tree removal as requested by staff; for the replacement tree, a substantial deodar cedar be planted in place of the removed tree. Cupertino Planning Commission 16 November 14, 2006 Vice Chair Giefer: · Said that in the examples used by Com. Chien relative to past actions on tree removal, the canary pine is not a protected species, whereas the deodar cedar is. · She said she questioned why they were not specifying which is substantial, a 48 inch box or 72 inch box which is normally specified with the replacements. Ms. Wordell: · Said it would be helpful to have some direction on that; it has been suggested that half the value of the appraised value would be appropriate. Staff's definition of substantial may be different from someone else's. Amended Motion: Motion by Com. Chien, to have the replacement tree be a 72 inch box deodar cedar tree. Amended Motion: Motion by Com. Chien, second by Com. Wong, that the replacement tree be either one 72 inch box deodar cedar or an equivalent determined by staff to be sufficient. Ms. Wordell: · Said that oaks trees have been investigated, but not deodar cedars. She expressed concern whether two cedar trees could fit in the area, because of their size at maturity. She suggested that it may be wiser to plant one tree and allow it to grow and fill the space. (Vote: 5-0-0) NEW BUSINESS: 3. Consider cancellation of the November 28, 2006 and the December 26, 2006 Planning Commission meetings. Ms. Wordell: · Reported that there were no items scheduled for the second meeting in November or the second meeting in December 2006. It is recommended that both Planning Commission meetings be cancelled. Motion: Motion by Com. Saadati, second by Com. Chien, to cancel the November 28, 2006 and December 26, 2006 Planning Commission meetings. (Vote: 4-0-1; Vice Chair Giefer abstained). OLD BUSINESS: None REPORT OF THE PLANNING COMMISSION ENVIRONMENTAL REVIEW COMMITTEE: No meeting held. HOUSING COMMISSION: No meeting held. MAYOR'S MONTHLY MEETING WITH COMMISSIONERS: · Com. Wong attended the meeting and will provide a report at the next Planning Commission meeting. Cupertino Planning Commission 17 November 14,2006 ECONOMIC DEVELOPMENT COMMITTEE: No meeting held. REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT; Ms. Wordell: . Briefly reviewed a report relating to the ABAG regional fair share housing numbers; the report showed that the City Council endorsed the method for calculating the next round of fair share housing; the number will go back to the state to see what level of housing units will be attributed to the Bay Area. It is the formula that was recommended and they are supporting it. . Said she had additional information on the methodology and breakdown of numbers for interested persons. ADJOURNMENT: The meeting was adjourned to the next Planning Commission meeting on December 2006 at 6:45 p.m. in the Cupertino Community Hall. SUBMITTED BY: ~~ . Ellis, Recording Secretary