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pc 12-12-06 APPROVED MINUTES CUPERTINO PLANNING COMMISSION DATE: PLACE: TYPE: Tuesday, December 12, 2006 Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA Regular Meeting Chair Miller called the regular meeting to order at 6:45 p.m. SALUTE TO THE FLAG ROLL CALL Commissioners Present: Chair: Vice Chair: Commissioner: Commissioner: Commissioner: Marty Miller Lisa Giefer Cary Chien Taghi Saadati Gilbert Wong (arrived late) Commissioners Absent: None Staff Present: Community Development Director: Steve Piasecki City Planner: Ciddy Wordell Senior Planner: Vera GiI Senior Planner: Aki Honda Associate Planner: Gary Chao Code Enforcement Officer: Gary Kornahrens Deputy City Attorney: Eileen Murray APPROVAL OF MINUTES Motion: Upon motion of Commissioner Saadati, seconded by Commissioner Chien, the Planning Commission minutes from November 14, 2006, were approved. (4-0-1; Commissioner Wong was not yet present for the vote on the minutes) WRITTEN COMMUNICATIONS Staff advised that there are desk items for tonight's agenda. POSTPONEMENTS/REMOV AL FROM CALENDAR There were no postponements or removals from calendar. Cupertino Planning Commission Minutes of December 12, 2006 Page 2 ORAL COMMUNICATIONS There were no oral communications. CONSENT CALENDAR There were no consent calendar items. *** PUBLIC HEARING - ITEM NO.1 Application No.(s): TR-2006-17 Application: Gaurav Banga Location: 21140 Grenola Drive Tree Removal of and replacement for six privacy protection trees for an existing single- family residence. Planning Commission decision final unless appealed. ACTION TO BE TAKEN: Approve or deny TR-2006-17 City Planner Ciddy Wordell presented the staff report as follows: . Explained that this application is a retroactive tree removal and replacement for six privacy protection trees. These trees became protected when a new two-story residence was approved in 2003 for a previous property owner because the two-story had windows and a deck facing the side and rear properties. . Said that the current property owner removed six trees. . Displayed an aerial photograph of the rear of the property that demonstrates a fairly significant canopy of trees at the back. A site plan of the original approval shows existing trees at the time of the approval. Two Redwoods (12" diameter) and four Monterey pines (between 14 and 24" diameter) were removed, as was a large eucalyptus. . Reported that the privacy plan included the six trees removed as well as new trees that were required to be planted. . Said that the six recently removed trees were replaced with six Italian Cypress. The owner explained that his tree service had advised that the removed trees were diseased and needed to be removed. . Stated that the replacement Italian Cypress were planted far apart. They currently offer a narrow column and not much height. . Advised that staff is proposing different replacement trees due to the need for privacy. The recommendation is for six 36-inch box Redwood or Deodar Cedars instead of the Italian Cypress. . Added that Italian Cypress is not good for screening unless planted in offset rows. Cupertino Planning Commission Minutes of December 12, 2006 Page 3 Commissioner Giefer said she that had a procedural question for staff. Since the privacy planting was to be recorded, why did the developer receive final occupancy before that recordation occurred? City Planner Ciddy Wordell agreed that the privacy protection plan was not recorded when it should have been. However, the trees removed here were existing trees. She explained that this current owner was unaware that the privacy protection plan protected the trees he had removed. Commissioner Giefer asked if there is a mechanism in place to assure the planting of required privacy screening. City Planner Ciddy Wordell said that a hold is placed on any house with a privacy screening requirement until proof is provided of recording. Commissioner Giefer pointed out that there was a full approved landscaping plan. She asked if this applicant is required to plant all required trees on the original landscaping plan? City Planner Ciddy Wordell said that since the requirement goes with the property the answer to that question is yes. Mr. Gaurav Banga, Applicant and Property Owner: . Thanked the Commission for the opportunity to speak. . Stated that he was unaware that he could not remove the trees in question and explained that two of the six had white material coming from them. . Said that he was advised that Italian Cypress would be an acceptable replacement. . Said that in retrospect, he should have called the City to verify. . Assured that he is willing to do what it takes and that all privacy trees in the landscape plan were installed and are being cared for by a professional gardener. . Added that he has also planted an additional 15 to 20 trees on the property. . Advised that he is concerned about placement of trees on the perimeter in relation to the fence. . Proposed that he be allowed to plant the new trees further apart and leave the Italian Cypress in place. The Italian Cypress will be 20 to 30 feet tall within five years. Commissioner Chien asked Mr. Gaurav Banga if he is aware that the trees were not recorded. Mr. Gaurav Banga said that if he had been aware he would not have removed them. Commissioner Chien: . Clarified that the City does not have the legal right to take action against Mr. Banga since the requirement to retain the privacy screening trees was never recorded. . Added that what is happening here is more in the spirit of the law rather than the letter of the law. . Asked if Mr. Gaurav Banga would be willing to provide the name of his tree contractor. Cupertino Planning Commission Minutes of December 12, 2006 Page 4 Mr. Gaurav Banga said he had no problem doing that. Commissioner Giefer pointed to a spot on the diagram and asked Mr. Gaurav Banga what was planted in that location. Mr. Gaurav Banga said that there is an entire row of trees in that location. They are Chinese Lantern as approved in the planting plan. Commissioner Giefer asked Mr. Gaurav Banga if he has any objection to planting one Redwood tree at the corner of the property. Mr. Gaurav Banga replied no. Commissioner Giefer said that doing so might be more effective in providing screening at that location. Chair Miller asked Mr. Gaurav Banga what he would do with the current Italian Cypress recently planted. Mr. Gaurav Banga said that they would be removed and replanted elsewhere. Chair Miller asked if addition Deodar Cedars would be planted. Mr. Gaurav Banga replied yes. Chair Miller opened the Public Hearing for Agenda Item No.1. Ms. Jennifer Griffin: . Said that this situation helps makes people aware of protected trees in Cupertino. . Added that this will beautify this yard once again and will lead to more discussion later tonight. . Advised that if the Italian Cypress are left in place to make sure that they do not interfere with the growth of the remaining trees. . Said that Italian Cypress must be pruned at a certain height as once they exceed 20 feet in height they are hard to maintain. Additionally, they have a short lifespan of approximately 15 years. If short, they provide excellent coverage. . Stated that gardeners working in Cupertino need to know Cupertino's laws. . Suggested that the owner might have recourse against someone who gave him bad advice. . Reiterated that privacy plantings in Cupertino must be maintained and protected. Chair Miller closed the Public Hearing for Agenda Item No.1. Commissioner Saadati: . Said that he has the same concern about Italian Cypress growing and interfering with other trees. . Agreed that they should be kept short. Cupertino Planning Commission Minutes of December 12, 2006 Page 5 . Stated his support for the staff recommendation and said he hopes the trees planted provide the desired screening. Commissioner Chien: . Said that this offers a good example that protected trees is not just specific species but also those in privacy plans. . Pointed out that the Tree Ordinance is currently under revision. . Said that protected trees need to be recorded so that future owners know. That was not done in this case. . Reminded that technically there is no legal recourse by the City against this owner. . Said that he is more comfortable with planting more Italian Cypress, which in about three years time can provide great screening. . Suggested that the privacy concerns be mitigated with the planting of further Italian Cypress, as he is not comfortable with the staff recommendation. Commissioner Giefer: . Stated that it is not this applicant's fault as he was unaware of the protected status since that requirement was not recorded. . Advised that she is in agreement with the requirement to plant larger trees and proposed six 36-inch box Redwood trees. . Said that the Italian Cypress could be transplanted elsewhere on the property. . Added that she does not want to record the Italian Cypress as privacy screening but rather just the Redwoods that would be planted in their place. Chair Miller asked how tall a 36-inch box tree is? Director Steve Piasecki replied 12 to 14 feet in height. Chair Miller asked how tall a 24-inch box tree is in comparison? Director Steve Piasecki replied between six and eight feet. Chair Miller asked if it is true that a 24-inch box will grow faster than a 36-inch box tree. Director Steve Piasecki said that it really doesn't make that big a difference. You are buying immediacy with a 36-inch box tree in that it is larger to begin with once planted. They would be about the same size in approximately five to six years. Chair Miller: . Reiterated that it is not the fault of this applicant that the tree protection was never recorded. The recordation is neither in the City records nor on the deed. . Expressed appreciation for the applicant's willingness to work with the City. . Said that the issue of using Italian Cypress, Redwood or Deodar Cedars should be worked out with staff. . Said that if more Italian Cypress are to be used it should be indicated on the tree planting management plan that if they are over planted some may be taken down later down the road as growth occurs and they become crowded. . Pointed out that this applicant clearly wants to do the right thing. Cupertino Planning Commission Minutes of December 12, 2006 Page 6 . Said he could accept 24 or 36-inch box trees. Motion: Upon motion of Commissioner Chien, seconded by Commissioner Saadati, the Planning Commission approved a Tree Removal application to replace six privacy protection trees for an existing single- family residence locate at 21140 Grenola Drive, with the requirement to work with staff to determine the appropriate 24 to 36-inch box tree replacements. (4-0-1; Commissioner Wong was not yet present) City Planner Ciddy Wordell expressed thanks to Mr. Gaurav Banga for his cooperation in this matter. *** PUBLIC HEARING - ITEM NO.2 Application No.(s): U-2006-12, ASA-2006-21, TM-2006-11 Application: George Adzich Location: 21891 Granada Avenue Use Permit and Architectural and Site Approval for a two-story, 4,761 square foot single- family residence in a planned development zoning district. Tentative Map to subdivide a 19,842 square foot parcel into two parcels, 9,498 square feet and 6,731 square feet respectively plus street dedication. ACTION TO BE TAKEN: Approve or deny U-2006-12 Approve or deny ASA-2006-21 Approve or deny TM-2006-11 Associate Planner Gary Chao presented the staff report as follows: . Reported that the applicant is seeking a Use Permit, Architectural and Site Approval and a Tentative Map. . Described the subdivision as that of a 19,842 square foot parcel to be split into two lots. Lot 1 is 6,731 square feet and Lot 2 is 9,498 square feet. . Said that a new two-story 5,208 square foot residence is proposed for Lot 2. Lot 1 will remain vacant pending future development. . Stated that the project is located in the Monte Vista Area, on the corner of Granada Avenue and Minaker Court. . Explained that Minaker Court is currently a half street. As part of this project, the applicant will be required to finish off that street including curb, gutters and sidewalk as well as streetlights. . Said that the zoning is PD (Residential 4.4-12). While there are no specific zoning requirements regarding issues such as setbacks and parking, the emphasis is to strive to meet the underlying zoning requirements, which in this case is R-1 (Single Family). . Said that the Use Permit is to allow discretion for greater flexibility in setbacks, FAR, etc. Cupertino Planning Commission Minutes of December 12, 2006 Page 7 . Advised that Lot 2 is 9,498 square feet. The proposed house is 5,200 square feet, which is an FAR of .57. Of that, 447 square feet is a covered patio, 812 square feet is a three-car garage and 251 square feet is the interior great room that is over 16 feet in height and is therefore double counted as square footage. . Said that there are approximately 29 lots in the area with FARs that range between a low at .49 and a high at .93. . Informed that staff is comfortable with the proposed FAR and displayed a diagram that shows the FAR levels across Minaker Court. Four of the properties have an FAR at .93 with the fifth property at .60. Commissioner Giefer asked if some of those are attached homes. Planner Gary Chao: . Replied yes, several are duets. . Said that the evaluation is based upon surrounding area and heritage trees. Two issues are raised. . Described one impact to the residence to the east, which will have a long span of wall (about 74 feet) visible from its rear yard. . Said that staff is suggesting additional building articulation along this easterly elevation and a minimum of a 10-foot single-story building setback that shall be maintained along this easterly elevation from the rear yard of the adjacent property. . Reported that about 12 trees are identified as potentially impacted. Some are on adjacent properties. . Said that Trees 1 and 2 are specimen Oaks that the arborist has identified with concerns. . Advised that the recommendations in relation to Tree 2 include deleting the three-car garage/shop or recess the third car garage/shop further toward the back of the property to provide a minimum 18-foot setback from the trunk of Tree 2. Another recommendation is to delete the driveway leading up to the third garage/shop or use a special porous concrete that is poured over geo-grids that allows water to permeate the driveway and get to the root system underneath. Additionally, Tree 2 is to be cabled and pruned by a certified tree expert prior to final occupancy (as well as Tree 3). . Added that for Tree 3 and Trees 7-11, all draining, trenching and grading activities must not occur within three feet of the easterly property line. Therefore, proposed building footprint should be relocated further (8-10 feet) from the easterly property line. . Recommended approval of the Tentative Map, Use Permit and Architectural and Site Approval subject to changes and resolutions. Commissioner Saadati asked for clarifications on what two dots on the plan represent. Planner Gary Chao said that they are proposed shrubs or groundcover. This is a conceptual plan and this material can be relocated as necessary. Commissioner Saadati asked if staff had conveyed its concerns to the applicant during review. Planner Gary Chao replied yes. Cupertino Planning Commission Minutes of December 12, 2006 Page 8 Commissioner Saadati asked the length of the adjacent property's building and whether it has articulation. Planner Gary Chao said that the proposed building on this subject site is about 75 feet. That is about an equal length to the building wall on the next property. That wall does not have much articulation. Commissioner Chien pointed to a discrepancy in the numbering of trees. Planner Gary Chao clarified that Trees 2 and 3 are Oaks. Commissioner Chien asked if privacy protection landscaping is required with this project. Planner Gary Chao replied yes. On the east elevation all windowsill heights are at 5 feet. Just the south elevation, which this applicant also owns, has privacy impacts. He is willing to sign a waiver to indicate no privacy issues. Commissioner Chien said that there are two proposed staff modifications to the east property line and shop. He asked if staff is aware if any revisions have been done based on staff feedback. Planner Gary Chao replied no. Commissioner Giefer: . Disclosed that she had visited the project site today. . Advised that the applicant had a tree trimmer on site cutting Trees 2 and 3, of which she took photos and sent them to staff. . Added that she was quite shocked to see this. She advised that she talked with the tree cutter and learned that there was no licensed arborist on site supervising this work. . Asked staff if Minaker is a public street? Planner Gary Chao replied yes. Commissioner Giefer asked what it might take to meet the FAR requirement for R-1 zoning. How many square feet would have to be removed? Planner Gary Chao: . Explained that right now the FAR is .57. . Reminded that the patio area is covered and has three walls so that space is counted in the FAR. The great room area is over 16 feet in height and gets double counted in the FAR. If that height were to be dropped that would result in a reduction of approximately 250 square feet. If those items were taken out the project would be at .45 FAR. Commissioner Giefer pointed out that tree protection measures are not mentioned in the draft resolution. Planner Gary Chao advised that the arborist report is referenced. Cupertino Planning Commission Minutes of December 12, 2006 Page 9 Commissioner Giefer asked if there is a reason why the entire development is not coming before the Commission at this time. Planner Gary Chao suggested that this could best be answered by the applicant. Commissioner Wong asked staff to verify that the zoning is PD and not R-1. Planner Gary Chao replied correct. It is PD (R 4.4-12). Commissioner Wong said that it is the intent to meet the requirements of R-1 but not the letter. Planner Gary Chao replied that as written the developer "shall strive to meet the requirements of the underlying zoning district." Commissioner Wong asked staff how far the shop is located from Tree 2. Planner Gary Chao said 10 feet. Commissioner Wong pointed out that if the applicant were to go with a traditional R-1 house at .45 FAR, there would likely be more of a second story. They have tried to mitigate by putting most of the structure on a first story. He added that the reason that the FAR is pushed higher is the double counting of the height of the great room and the enclosed patio area. Planner Gary Chao replied correct. He added that the reason that is done is because with height structures take on the volume of a two-story home so the Ordinance requires double counting of that space. Also a patio with three walls and a roof is considered enclosed. Commissioner Wong clarified that if a resident of Cupertino wants to trim a tree, as long as it is trimmed less than 25 percent, no permit is required. Planner Gary Chao: . Replied that technically that is true but in this case, the arborist did flag those two trees as requiring special consideration. . Added that staff was planning to suggest that the City's arborist monitor the process and that these trees be cabled and trimmed appropriately. . Concluded that, in general, it is correct that anyone can trim any tree by up to 25 percent. Commissioner Wong asked about the concern raised by staff regarding the 74-foot long elevation on the east property line. If the neighbor did not share that concern, would staff still be concerned? Cupertino Planning Commission Minutes of December 12, 2006 Page 10 Planner Gary Chao replied yes, saying that good site planning practices makes sure that no interface issues occur. While it helps that the adjacent neighbor has signed something that supports the project, the property could be sold to someone else in the future. Commissioner Wong said he sees this project as compatible with its neighborhood. Planner Gary Chao said that is the reason that this interface up to the point where the rear yard starts on the adjacent property is supported. He added that the applicant can reconfigure without sacrificing square footage and pointed out that patios don't have to meet rear yard setbacks. There are options available. Commissioner Chien asked about the impacts of Ordinances 1050 and 1523. Planner Gary Chao said that this area was annexed into Cupertino in 1980 and Ordinance 1050 zoned the area as PD-Residential to allow potential flexibility with development. He added that he was not sure about Ordinance 1523 but perhaps it may be an addition for Ordinance 1050. Commissioner Chien asked what takes precedence, an Ordinance or planning principles. Deputy City Attorney Eileen Murray said that the Ordinance has not been amended so it is still effective. Commissioner Chien asked Commissioner Giefer to describe what she observed regarding the trees today. Commissioner Giefer said that she sent email photographs to staff. Commissioner Chien asked staff if these photos are available this evening. Planner Gary Chao replied yes and displayed the photographs. Commissioner Giefer: . Explained the photographs she took on site, saying she is not sure how much has already been removed from these trees. . Asked when the clock starts? Is it a calendar year? . Reminded that there was no arborist supervising this work and that she was surprised to see it underway given there was to be a hearing this evening. . Said that she thought at first that they were removing these trees but the workers said that they had talked to Barrie Coate and they knew what they were doing. Chair Miller asked the depth of the retaining wall on the easterly property line. Planner Gary Chao said he did not know but perhaps the applicant would know. Chair Miller asked if the trees have deep or shallow roots. Planner Gary Chao said that it was not specified. Cupertino Planning Commission Minutes of December 12, 2006 Page 11 Mr. George Adzich, Applicant and Co-Owner of Property: . Explained that he trims his trees every two to three years as recommended and has been doing so for quite some time. . Added that he used the same tree service that he has used for the last 15 years. . Said that the work is typically done in the summertime when the tree company is less busy. . Advised that the tree was trimmed in a way that was called for in the arborist's report. . Expressed his surprise that his gardener was told to stop his work. . Reiterated that he was well within Ordinance requirements and his rights to trim his trees. Regular trimming is the reason these trees are so healthy. . Displayed a Power Point presentation. . Stated that he did an analysis of the area and found that most structures do not meet the R-1 Ordinance requirements. . Explained that he is the owner and builder, together with his wife, of this property. . Said that he is a 40 year resident of Cupertino with prior building experience. He currently lives across the street. . Introduced his architect, Bob Schwenke, who is available for any complex questions. . Reported that Ordinance 1050 designated this area as P-Res 4.4-12 units per gross acre. This Ordinance was enacted in 1980. . Reminded that this is not an R-1 zone. . Pointed out that the area is completely developed. This is the last undeveloped property. . Said that he is developing this property for his own residence and it is on the low side of the guidelines. He is not asking for any exceptions to the zoning. . Quoted Ordinance Section 19.28.060D.2c: for lots that have more than two side yards, the setback shall be consistent for all side yards between the front property line and rear property line. . Added that his proposal meets this Ordinance. . Said that there is no guidance in the R-1 regarding articulation but rather it is a subjective analysis. He fulfills this through the second story requirements and their articulation is consistent with that of adjoining properties. . Stated that a building is a work of art that has to be designed around a neighborhood taking privacy and articulation into account. . Reminded that the adjacent neighbor gave signed approval and has no concerns with the articulation issue raised by staff on the issue of the easterly elevation. He added that mature trees already screen this area. . Described exterior architectural features including the use of high quality materials, smooth stucco, recessed windows and doors, slate and stone wall accents, high end wood-look garage door, a unique courtyard entrance and hip roof. . Assured that tree preservation is very important to him. . Advised that he had lived on this property for 10 years and across the street from it for 6 years. . Added that they designed this proposed home around these trees. They are a key design element of the project. . Promised that they will be preserving all trees on site as well as protecting those onnearby parcels. Cupertino Planning Commission Minutes of December 12, 2006 Page 12 . Pointed out that there is a 24-inch penetration into the soil by the existing concrete retaining wall separating this property from the adjacent. There is a current structure -located two feet away. Their proposed structure will be five feet away. . Advised that the arborist said that the only threat to trees is through grading and drainage. They will have a grading and drainage plan prepared. . Assured that the impact of the new structure is zero. . Said that Tree 2 is a large Oak and that the building was purposely angled to accommodate this tree. There will be an expansive open area around the root structure. No soil is to be removed to accommodate the building and no trenching will occur along the root zone. . Described further precautions for Tree 2 including the use of post tension concrete slab instead of typical foundation for the shop and garage therefore requiring no grade penetration and no contact within 30 feet or more of the trunk. . Reiterated that the only risk for the tree is root loss and there will be zero root loss. . Stated that he would eliminate the driveway section leading to the shop area. The separation to the driveway will be over 20 feet. . Displayed slides with tree samples located near structures and paving. Commissioner Giefer asked Mr. George Adzich what his plans are for"the front lot. Mr. George Adzich explained that he would likely construct a single-story home on Lot 1 in approximately three to four years. Commissioner Giefer asked Mr. George Adzich why he chose to trim these Oak trees on the day he was coming before this Planning Commission. Mr. George Adzich said that he had planned to have the work done in the summer but waited for the analysis to be completed by the arborist. He didn't want to trim before that report was completed. He added that he had been worried about that limb for a long time and that he was surprised that Commissioner Giefer feels that too much was removed from this tree. Commissioner Giefer pointed out that the arborist's report required that a certified arborist supervise when these trees were trimmed. She asked why such a certified arborist was not there at the time this trimming occurred? Mr. George Adzich said that he didn't think it was necessary and reminded that he has the right to trim up to 25 percent per year. Commissioner Giefer asked Mr. George Adzich if he plans to cable the tree. Mr. George Adzich said that the option was to trim or cable and he chose to trim. Chair Miller opened the Public Hearing for Agenda Item No.2. Mr. Jan Casera, Oak View Lane: . Said that he lives 200 meters across Stevens Creek Boulevard and has resided in Cupertino since 1993. Cupertino Planning Commission Minutes of December 12, 2006 Page 13 . Explained that his is one of the largest lots in Cupertino at approximately 19,000 square feet. . Stated that he drives by this subject site almost every day taking his son to school. . Added that he visited the site this evening at 6 p.m. and was stunned to find that the tree was not there. . Recounted that he has a 400 and 500-year-old Oak trees on his own property. . Stressed that the Oak tree is virtually gone from this property. . Stated that he is here to protect this lot and tree. . Said that this would be a gorgeous house on a 19,000 square foot lot but it is large for a 9,500 square foot lot. . Pointed out that he lives in a 1,700 square foot house on a large lot. . Agreed with Commissioner Giefer's concern regarding the Oak tree. Ms. Jennifer Griffin: . Said that this is a very interesting item with lots of details to consider including FAR. . Asked that the trees on this lot please be protected. . Said that it is disturbing to hear what happened to the tree today on the day of this hearing. . Stated that this house seems very large. . Added that Monte Vista has a long history and interesting houses. . Pointed out that none of the setbacks appear to meet R-1 standards. . Said that good home development occurs with the house placed well on the lot. . Said that she is concerned about the covered porch. It is good that the space is counted against the FAR because such space tends to become living areas. . Suggesting limiting the size of the house to meet R-1 standards as much as possible. . Stressed the importance of protecting trees. Mr. James Welsh, Commercial Tree Care: . Said that the tree trimming done on the Oaks did not look out of line at all. . Advised that trees need to be crown thinned and that it looks like they did a good job and were conscientious in doing the work. . Said that trees deteriorate if not trimmed properly. Chair Miller closed the Public Hearing for Agenda Item NO.2. Commissioner Giefer: . Said that FAR ratio information provided by the applicant would be more pertinent if they were comparing single family with single-family homes and not with homes that include duet homes. . Agreed that the Monte Vista area has a patchwork of housing. . Said that FAR is a concern. This applicant is developing a large home in close proximity to another. . Reminded that impervious surface over roots jeopardizes trees. Structures smother Oaks. . Said that she supports this application if the shop is eliminated. This would help improve the FAR and help preserve Trees 2 and 3 (Oaks). Cupertino Planning Commission Minutes of December 12, 2006 Page 14 . Said that she would like to improve the distance between the easterly neighbor by increasing the setback where the backyard meets. With that change, she is supportive. Commissioner Wong asked Commissioner Giefer if he understands that she wants to eliminate the shop to help reduce FAR. He also asked for clarification as to what she wants at the easterly property line. Commissioner Giefer: . Said that she prefers more distance and likes the staff recommendation to move the great room forward toward the garage and eliminate the shop. This would be better for the neighborhood. . Stated that she wants less impervious surfaces in that area. She does not want concrete over the drip line. . Added that there is no reason to push the shop back. She prefers the elimination of that shop. Commissioner Wong: . Said that there is no reason for the applicant to have to hide the fact that he is trimming a tree. . Asked staff what it would do in the event of hearing about ongoing tree trimming. . Questioned what was the big deal. Director Steve Piasecki explained that there is no evidence of violation here but this information was learned late in the day. He added that if staff hears of tree trimming that might be of concern, they go out at the first opportunity to determine if there is a violation. Commissioner Wong: . Disclosed that he had visited the site. Mr. George Adzich had invited him and gave a tour. . Said that the applicant is seeking approval of a Tentative Map. . Added that this family wants to build their dream house, including amenities such as a great room, covered patio, etc. . Reminded that they do not have to meet R-1 zoning standards, as this is a PD zone. . Said that the FAR is increased because of the double counting of the higher ceilings of the great room as well as counting the covered patio as square footage. . Stated that he does not agree with the staff recommendation regarding the easterly elevation. . Pointed out that the adjacent neighbor has no such concern. If there were neighborhood concerns, more would have come to this hearing. Instead there are 10 letters of support. . Said that he used to live on a 1,050 square foot house on a large 12,000 square foot lot. . Stated that this applicant wants a bigger living area versus a large backyard. . Suggested that articulation should be more toward the front of the house. . Said that he read Barrie Coate's arborist report and that he prefers trimming to cabling. . Said that mature trees and the wall offers privacy protection to the easterly neighbor. Cupertino Planning Commission Minutes of December 12, 2006 Page 15 . Advised that he is very supportive of this project but is concerned about the shop. He recommends eliminating it or moving it back. Director Steve Piasecki clarified on the issue of calls regarding tree trimming that if Code Enforcement gets a call, they can go out and make their best judgment as to whether a violation has occurred. Commissioner Chien said he would like the City Arborist to answer some questions. Mr. Barrie Coate: . Said that he didn't realize he was going to speak on this issue this evening and did not bring his files. . Stated that he is willing to go and look at the Oak that was trimmed today. Commissioner Chien asked Mr. Barrie Coate to comment on the photographs depicting trees located near structures and/or paved surfaces as provided by the applicant during his presentation. Mr. Barrie Coate: . Explained that the conditions under which these trees exist could be brief or have been over a long time. . Added that there is the issue of different soil conditions. . Opined that pictures are relatively irrelevant. They don't speak to the specific circumstances involved. . Said these photographs might be more meaningful if these trees were located in a small area of Cupertino but that it is hard to see the condition of the top of trees with these photographs. . Suggested that random pictures of which they do not have details not deceive the Commission. Commissioner Chien asked about a 20-foot distance to the tree. Mr. Barrie Coate: . Reported that the goal of an arborist is to propose procedures that will guarantee that a tree remains in good health for 20 years or more. . Said that one standard distance is five times the diameter of the tree trunk for any activity that would damage roots on one side of a tree. That goes up to seven times the trunk diameter if both sides have structures or impervious coverage. . Said that he does not disagree that things are done but it does not mean that they are good for trees. . Added that proximity to trees is not what is recommended. Commissioner Chien: . Thanked the applicant for the time he spent with him on site. . Said that it is good to look at a project site first hand. . Said that he has no problem with the lot split and the applicant is fortunate to have such a large lot. Cupertino Planning Commission Minutes of December 12, 2006 Page 16 · Said he has no problem with the FAR since this is a large lot and the zoning is PD, which offers flexibility to go beyond what is required in an R-1 zone. · Added that .57 FAR is not overdoing it. · Reminded that the staff recommendation is for five additional feet in setback for the easterly property line. · Said that while he does not like five-foot setbacks, they are allowed. · Suggested that perhaps that standard can be upgraded some time in the future. · Advised that the tree is of concern and that the work done on it needs to be verified. If it is actually gone, something needs to happen since we are talking about a protected Oak tree. · Said that it needs to be looked at to see if any modifications can be made to ensure the tree survives. · Expressed support for the project with protection for Tree 2. Commissioner Saadati: · Agreed that the lot is a good size. The applicant could have designed a house with 15- foot side yard setbacks or more but they designed it as they wish it to be. · Added that he is not advocating that the house be redesigned. · Said that there is some articulation to the easterly elevation including the second story setback. · Advised that he is not sure that an additional five-foot setback can easily be done and that there is enough setback as proposed since it is consistent with what is next door. · Explained that the use of post tension concrete slab still requires that soil be compacted and the slab be placed somewhat below grade. · Added that he has been a practicing licensed structural engineer for over 30 years. · Said that the garage can be moved further back. · Advised that he is in favor of the project and his only concern is the tree and that the garage must be built in such a way that it won't impact that tree. Chair Miller: · Said that he is okay with the easterly property line as there is vertical articulation, a retaining wall there and a structure that is only two-feet from the boundary line. · Stated that the cutting of the tree today is a separate application and will need to be inspected. · Agreed that the garage/shop structure would impinge on the Oak and agreed with the staff recommendation to eliminate or push back that garage/shop. Motion: Upon motion of Commissioner Wong, seconded by Commissioner Saadati, the Planning Commission unanimously approved a Tentative Map (TM-2006-11) to allow the subdivision of a 19,842 square foot parcel into two parcels, 9,498 square feet and 6,731 square feet, plus street dedication, for property located at 21891 Granada Avenue. (5-0) Motion: Upon Motion of Commissioner Wong, seconded by Commissioner Saadati, the Planning Commission recommended approval a Use Permit (U-2006-12) and Architectural and Site Approval (ASA2006-21) to allow a two-story, 4,761 square foot single-family residence in a Cupertino Planning Commission Minutes of December 12, 2006 Page 17 planned development zoning for property located at 21891 Granada Avenue, with the added requirement that the shop either be pushed back or that the applicant work with staff to see if the shop can stay in place with tree protection. Chair Miller asked for discussion on the second motion before the vote. Director Steve Piasecki said that staff would like the directions for the shop to be clearer, such as pushed back or eliminated. He added that post tension concrete slab is not a viable option. Motion: Upon motion of Commissioner Giefer, seconded by Commissioner Chien, a friendly amendment was suggested to completely eliminate the shop. Commissioner Wong explained that the reason he left it open-ended was to allow the options of eliminating the shop, pushing it back or reducing in by half. This gives the applicant the option to work with staff. Director Steve Piasecki said that this is clearer direction that works for staff. Commissioner Giefer said that the primary concern is surface within the tree's drip line. Eliminating square footage handles that concern. She suggested moving forward with the vote. Commissioner Saadati suggested leaving it to the arborist and staff as to which option is best, pushing the shop back, reducing it or eliminating it outright. Commissioner Giefer suggested stating specifically that no portion of the building should be located under the tree's drip line. Commissioner Saadati reiterated that it should be whatever the arborist recommends. Director Steve Piasecki explained that the arborist recommends no impervious surface leading to the shop. Motion: Upon motion of Commissioner Giefer, seconded by Commissioner Chien, the friendly amendment to completely eliminate the shop was withdrawn from consideration. At this point the vote on the original motion was taken as follows: Motion: Upon Motion of Commissioner Wong, seconded by Commissioner Saadati, the Planning Commission unanimously approved a Use Permit (U-2006-12) and Architectural and Site Approval (ASA2006-21) to allow a two-story, 4,761 square foot single-family residence in a planned development zoning for property located at 21891 Granada Avenue, with the added requirement that the shop either be pushed back or that Cupertino Planning Commission Minutes of December 12, 2006 Page 18 the applicant work with staff to see if the shop can stay in place with tree protection. (5-0) Chair Miller called for a five-minute recess at 8:50 p.m. Chair Miller reconvened the meeting at 8:55 p.m. *** PUBLIC HEARING - ITEM NO.3 Application No.(s): UP-2006-11, ASA-2006-23, EXC-2006-11 Application: Janet Lau (Merlion Restaurant) Location: 19628 Stevens Creek Boulevard Use Permit for a full bar at a proposed restaurant at Marketplace Shopping Center. Architectural and Site Approval for minor exterior changes to provide outdoor seating. Sign Exception to allow a sign (statue) to exceed the number and height of allowed signs for a proposed restaurant at Marketplace Shopping Center. Planning Commission decision final unless appealed. ACTION TO BE TAKEN: Approve or deny U-2006-11 Approve or deny ASA-2006-23 Approve or deny EXC-2006-11 Senior Planner Vera GiI presented the staff report as follows: · Reported that the applicant is seeking approval of a Use Permit to allow a full bar with a proposed restaurant; a Sign Exception to allow a statue that exceeds allowable sign size and height; and an Architectural and Site Approval for minor modifications to allow outdoor seating. · Described the subject site as Building A that will be shared by Merlion Restaurant and two other tenants. · Gave other examples of restaurants with Use Permits for bars as including Elephant Bar and Chili's. · Said that this site is well insulated from residences by the original shopping center and parking lot. A shared parking plan has been approved and parking should not be an issue. If parking becomes an issue, Building C would not be able to be fully occupied. · Stated that ASA-2006-23 will allow minor architectural changes to allow patio seating, including tiki torches, a glass canopy over the courtyard entrance, wooden shutters in the courtyard and a metal awning at the rotunda. Patio furniture is to be approved by staff prior to installation. · Said that EXC-2006-11 requires consideration as to whether a statue should be counted as a sign or as art per Section 17.06.010. A determination needs to be made as to whether this statue is advertising versus decorative statuary. Staff sees it as a sign in this case as it does advertise a restaurant of the same name (Merlion) as the Cupertino Planning Commission Minutes of December 12, 2006 Page 19 figure depicted in the statue. However, the applicant wants it to be defined as decorative statuary. . Added that if the Planning Commission finds this statue to be art, it would need to be referred to the Fine Arts Commission for review. . Reported that the height needs to be considered. It is proposed at 16 feet. Architectural Advisor Larry Cannon recommends that it be between 9 and 12 feet. Staff is recommending approval at 14 feet with a 12-foot, 6-inch statue on a base that is one foot, six inches tall. . Pointed out other comparable signs including the Menlo Equities artwork at 10 feet in height located at Wolfe & Stevens Creek Boulevard; the Morion that is 20 feet tall at Torre & Rodrigues; and the Perspectives that are 20 feet tall at the Kelly Mill Plaza. . Reported that she had heard from some Commissioners who wanted to discuss the issue of outstanding palm tree replacement requirements at the site. She said that it has nothing to do with the application here. The Design Review Committee held two meetings regarding U-2005-09, one on June 21,2006, and the other on September 21, 2006. A final resolution said that palms could be planted in the parking strips with some modifications to the site. DRC approved a planting plan. . Recommended approval of the Use Permit, Architectural and Site Approval and Sign Exception. Commissioner Saadati asked about lighting for the statues. Planner Vera Gil said that there would be up light fountain lighting. Commissioner Giefer asked how tall the chili is in front of the Chili's Restaurant. Planner Vera Gil replied approximately 4 feet. Commissioner Giefer asked if that would be an example of advertising signage through artwork seeing as it is a Chili for a restaurant called Chili's. Planner Vera Gil replied yes, it would be. Commissioner Wong questioned the condition requiring restaurant odor abatement. Planner Vera Gil said that this is a standard condition placed on all restaurants. It first came up with Elephant Bar. Since then, this condition has been placed for all new restaurants. Commissioner Wong sought clarification that there is no City Ordinance requiring odor abatement equipment. He said he has trouble seeing why this is required and asked what that recommendation was based upon. Director Steve Piasecki said that there were complaints from nearby neighbors from this center. It is not based on a type of restaurant but simply the fact that it is a restaurant. He added that it is not wise to cause a neighborhood dispute over something so small. Putting this equipment in up front is easier than retrofitting and is a preventative act. Cupertino Planning Commission Minutes of December 12, 2006 Page 20 Commissioner Wong restated that there is no Ordinance requiring this. Director Steve Piasecki replied correct. He added that the Commission could decide if this requirement is appropriate. Commissioner Wong: . Reported that the issue of palm trees was brought up at the June 21, 2006, DRC meeting when he and Commissioner Giefer were present. . Stated that his concern at that time was the need to cut into eaves of a brand new building. . Added that he is not comfortable with palms that have to be trimmed every year and that near Building B is not a logical place for palms. . Suggested that it would be nice to have the palms relocated to where the Elephant Bar is. . Stated that he is not saying that there should not be palms in the center but just not here. Planner Vera Gil clarified that the DRC meeting date was June 16th. Commissioner Wong asked why palms were selected. Director Steve Piasecki said that if the Planning Commission feels strongly, Council could be asked to reconsider the palms. However, the arborist says that this proposal is doable. Neighborhood testimony demonstrates support for these proposed palms. The Commission could elect to take minute action to suggest that Council reconsider. It would have to be readvertised and would delay the applicant. Chair Miller asked why this issue is in the model resolution if it has already been decided. Director Steve P Cupertino Planning Commission Minutes of December 12, 2006 Page 38 Director Steve Piasecki said that the Ordinance is about overall public interest. Commissioner Wong said that he agrees with staff that a 10-inch diameter trunk sizing method is easier to implement. He said that tree replacement and penalty is not clear. Director Steve Piasecki said that is not ironed out yet. After all Commissioners speak, he would suggest bringing this matter back to the Commission at a future hearing as that issue is vague right now. Commissioner Wong said that the replacement tree standard from Campbell is easier to understand. He asked what fees are proposed other than the $150 for one tree and $75 for each additional tree. Planner Aki Snelling said that the arborist-consulting fee is a $1,000 deposit. Commissioner Wong asked what fees would be charged for staff-level handing. Planner Aki Snelling replied the same. Director Steve Piasecki said that the fee could be low if done in advance. If retroactive, the fees could range between $2,000 and $3,000 to represent full cost recovery. Commissioner Wong said that Commissioner Giefer's proposal to waive the fee if native replacements are planted is an interesting idea. He said that staff needs to bring stuff back although he had hoped to conclude this matter this evening. Chair Miller: . Agreed that he too had hoped to conclude this issue tonight but so be it. . Said that the strategy to replace removed trees with native is a good one. . Reminded that Mr. James Welsh had suggested that the weight and cost of placing very large trees in a backyard be considered. . Asked if a two-tiered pricing system is necessary so that it is clear to the public that a fee discount and pre-approval are related. . Said that he is not clear if an additional $75 per tree is necessary if handled together. Director Steve Piasecki said that there is extra cost to the City to process multiple trees. Chair Miller: . Said that one method of estimating tree replacement is requiring roughly the same value. . Added that another approach is replacement with a tree that serves the same purpose as the original tree. . Said that he likes the idea of a Tree Management Program to make it easier if a property is over planted to later allow thinning out of trees as necessary. . Pointed out that the City is pretty much built out already and so Tree Management Plans might be needed retroactively to deal with existing situations. Cupertino Planning Commission Minutes of December 12, 2006 Page 39 Director Steve Piasecki said that perhaps over planting standards needs to be defined. Chair Miller asked if all trees in a landscape plan are recorded or only privacy protection trees. Planner Aki Snelling replied privacy protection trees or replacement trees for protected trees. Chair Miller asked for verification that entire landscape plans are not recorded. Planner Aki Snelling replied no. Chair Miller: . Said that it is good that they are not. . Stated that that if the purpose of the tree is privacy it needs to be protected but the owner should have some flexibility. . Added that he supports staff concern about adding to the protected list but if replacing species on the current list is practical he could support it. . Expressed support for creating strategies for increasing native trees. . Pointed to Section 14.18.040 that says that a property owner initiates heritage tree designation. Planner Aki Snelling said that needs to be modified to read the "Planning Commission, by resolution, can approve the tree as heritage." Chair Miller asked if the Planning Commission could initiate designating a tree a heritage tree? Director Steve Piasecki said that it is up to the Planning Commission to discuss the concept but that a process would be needed to back it up. Chair Miller said that this is a property rights issue. He said that it is fine if an owner wants to designate a tree as a heritage tree but not if the City imposes that designation. Commissioner Wong supported the staff recommendation for a 10-inch diameter size. Chair Miller said that it appears that if there is no room on site to plant replacement trees there is no reason to charge an applicant an in lieu fee. Director Steve Piasecki agreed. Chair Miller said that he supports staff coming up with a prescriptive way to handle tree removals at staff level and asked for a motion to continue this item to the first meeting in January. Director Steve Piasecki said that would be too soon and proposed the second meeting in January. Cupertino Planning Commission Minutes of December 12, 2006 Page 40 Motion: Upon motion of Commissioner Giefer, seconded by Commissioner Chien, the Planning Commission CONTINUED TO A DATE CERTAIN (JANUARY 23, 2007) a Municipal Code Amendment (MCA-2006-02) of Chapter 14.28 (Heritage and Specimen Trees). (5-0) Commissioner Wong suggested that the meeting start earlier if the agenda is large. *** OLD BUSINESS There was no old business. NEW BUSINESS There was no new business. REPORT OF THE PLANNING COMMISSION 1. Environmental Review Committee: Chair Miller advised that a meeting would occur on December 13th. 2. Housing Commission: Commissioner Wong said that a meeting would occur on Thursday. 3. Mayor's Monthly Meeting with Commissioners: None 4. Economic Development Committee Meeting: None REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT There was no Director's Report. ADJOURNMENT Chair Miller adjourned the meeting at approximately 12:10 a.m. to the next Regular Planning Commission meeting of January 9, 2007, at 6:45 p.m. MINUTES PREPARED AND SUBMITTED BY: Corinne A. Shinn, Minutes Clerk