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Draft minutes 2/27/07 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 CITY OF CUPERTINO PLANNING COMMISSION DRAFT MINUTES 6:45 P.M. FEBRUARY 27, 2007 TUESDAY CUPERTINO COMMUNITY HALL The Planning Commission meeting of February 27, 2007, was called to order at 6:45 p.m. in the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, California, by Chairperson Lisa Giefer. SALUTE TO THE FLAG ROLL CALL Commissioners present: Chairperson: Commissioner: Commissioner: Commissioner: Lisa Giefer David Kaneda (arrived after roll call) Marty Miller Gilbert Wong Commissioners absent: Vice Chairperson: Cary Chien Staff present: Community Development Director: Steve Piasecki City Planner: Ciddy Wordell Senior Planner: Aki Honda Snelling Assistant City Attorney: Eileen Murray APPROVAL OF MINUTES: Minutes of the February 13,2007 Planning Commission meeting: Correction Noted: Page 6: Chair Giefer, 2nd bullet, line 2: Change "under-parkThe" to read: "under-parked. The" Motion: Motion by Com. Miller, second by Com. Kaneda, to approve the February 13, 2007 minutes as amended. (Vote 4-0-0; Vice Chair Chien absent) WRITTEN COMMUNICATIONS: Receipt of written communication relative to an agenda item was acknowledged. POSTPONEMENTSIREMOV ALS FROM CALENDAR: 1. U-2006-14, ASA-2006-25 Terry Brown 10056 Orange Avenue Use Permit and Architectural Site Approval for a new mixed-use development; 2,500 square feet commercial and three residential units. Postponed to the March 13, 2007 Planning Commission meeting. Planning Commission decision final unless appealed. Cupertino Planning Commission 2 February 27,2007 Discussion ensued regarding the application wherein staff clarified the reason for the continuance of the application. Motion: Motion by Com. Wong, second by Com. Miller to postpone Item 1 to the March 13, 2007 Planning Commission meeting. (Vote: 4-0-0; Vice Chair Chien absent.) 3. U-2006-01, ASA-2006-03, TM-2006-03, TR-2006-04, Z-2006-04 (EA-2006-03) Kevin Wu (pacific Resources Development, Inc.) 10300- 10400 No. Tantau Avenue Use Permit and Architectural and Site Approval to demolish two office buildings and construct 125 single- family attached residential units, .8-acre park, common open space and other site improvements, and allow a portion of the enclosed parking to be tandem parking. Tentative Map to subdivide a 9. 13-acre parcel into 125 residential parcels. Tree removal and replanting for 125-unit, single-family attached residential project. Rezoning of a 9. 13-acre parcel from Planned Industrial Park (PMP) to Planned Residential (PR). Continued from the January 23, 2007 Planning Commission meeting. Application withdrawn, removed from calendar. Motion: Motion by Com. Wong, second by Com. Miller, to withdraw Item 3 applications from the calendar (Vote 4-0-0; Vice Chair Chien absent) ORAL COMMUNICATIONS: None 2. MCA-2006-02 City of Cupertino Citywide location Municipal Code Amendment of Chapter 14.18 (Heritage and Specimen Trees) Continuedfrom the January 23,2007 Planning Commission meeting. Tentative City Council date: March 20, 2007 Aki Honda Snelling, Senior Planner, presented the staff report: . Reviewed the sections of the draft ordinance that the Planning Commission reached consensus on at the January 23,2007 Planning Commission meeting; including Tree Removal Fees, Tree Management Plan, and Retroactive Tree Removal Fee, as outlined in the staff report. . Items requiring further discussion included the Specimen Tree List, Rear Yard vs. Front Yard Tree Removals, In-Lieu Fees, and Tree Replacements, as detailed in the staff report. . She reviewed the suggestions made by the Planning Commission on cleanup of items in the ordinance and clarification of items, as noted in the staff report. . Staff recommends that the Planning Commission recommends that the City Council approve the staff recommended draft model ordinance and also recommends the establishment of the tiered tree removal and retroactive tree removal fees. Steve Piasecki, Community Development Director answered Commissioners' questions: . The concept of tree management applies to a new landscape plan, and knowing that the landscape plan is over-planted, it may necessitate thinning some plantings in the future. They would come in with an arborist or landscape architect who would then designate trees that need to be removed. It would be recorded and they would have the ability to verify at a later date that they are overgrown and could remove them under a tree management plan. . Relative to the question if someone with an existing plan would follow the same procedure, they would have an arborist or landscape architect say that the trees planted are already Cupertino Planning Commission 3 February 27,2007 overgrown, need to be thinned and approve it. He recalled homeowners who came in with areas that were impacted or overgrown with redwood trees. . The advantage of tree management is you want the trees to grow as tall and as strong as they can; occasionally they will need to be thinned out to accomplish that. . Noticing in the Cupertino Scene is planned and will likely apply to non-single family developments because of the tendency to over-plant. . For general homeowners, living in an older tract, which is the vast majority of the single family development in town, they could still come in and ask for a tree management plan, they would simply come in and request tree removal at an appropriate time. Com. Miller: . Said the reason for proposing in-lieu fees is because a tree on the existing property cannot be replaced because it will not fit; which is a symptom of over-planting and shouldn't fit under this, and therefore in-lieu fees are not appropriate. Steve Piasecki: . Said it could be a symptom of over-planting, if the declaration is made, it can be said that it is a thinning of a forest and would not necessarily have an in-lieu fee. It is something the Planning Commission could work on resolving as they look at individual cases. . Relative to in-lieu fees, he clarified that there was a suggestion to differentiate between front and back, and then in the back only the Oaks would be declared as trees that you could not remove under any circumstances; the other specimen trees could be removed if they were in the back yard presuming that there is more opportunity for interference with private property rights and the desire to put a pool in or plant a garden in the backyard. That is a point of discussion the Commission needs to have if they want to make that distinction. Com. Kaneda: . Relative to the in-lieu fees, if you are removing a tree in the front yard, there is a discussion of the tree in question, you could go to the Planning Department and ask for the tree to be removed just because you think it is over crowded and then potentially it could be taken out. Aki Snelling: . If there is a tree management plan, that is correct; and if they had approved a plan and it happened to be at full maturity, it's overcrowding, they could take the tree out; but without the tree management plan, they would have to come in and apply for the tree removal permit. The Director of Community Development would be able to approve the removal of the tree, unless the approval was appealed to the Planning Commission. . If the property owner wanted to remove the tree, the Director of Community Development would have to make the finding that would allow for tree removal; staff would still make a determination whether or not the tree could be removed. If it could be removed, and the property owner could not replace on that property for some reason, the in-lieu fee would apply. . She referred to Page 2-23 of the staff report which clarified the tree replacement standards. Com. Wong: . Relative to tree management plan, "Commission also asked that removal of heritage trees not be allowed in conjunction with a tree management plan." He asked staff to explain why they put it in. Cupertino Planning Commission 4 February 27,2007 Aki Snelling: · Said the Commission required that the heritage trees as they are designated, also require Planning Commission public hearing approval for removal, which was the reason it was added in to clarify that as part of a tree management plan. Com. Wong: · Said the wording does not match with the ordinance wording, and he felt there shouldn't be any difference between the heritage vs. non-heritage; when the heritage growth is overgrown, there should be some type of tree management program. Aki Snelling: · Said that the heritage tree is different in the fact that heritage is a type of protected tree and is the way it is listed in the ordinance, but the heritage tree does have a certain designation for retention as that tree or grove of trees designated for a heritage tree, which specifically would require designation by the Planning Commission. Com. Wong: · Relative to the Specimen Tree List, staff does not recommend adding to the existing list, and has provided an explanation on Page 4 of the report. He asked staff to clarify. Aki Snelling: · Staffs position is to retain the existing specimen tree list, to keep the five trees and not add more. The idea of revamping the ordinance is to simplify it to make it more easily understandable to the public. Also, adding more trees to the tree ordinance would more directly affect the residential home owner than the commercial home owner. . A non-residential owner, most likely a development site would require an approved landscape plan; regardless of whether or not the trees on that approved landscape plan are specimen trees or not, they would still all be protected trees. . Any tree on an approved landscape plan would be considered a protected tree. The tree ordinance would more directly affect the single family homeowner because there are a number of more trees if they were added to the protected tree list. It would require the homeowner to know the possibility that more trees or trees on that person's property could be affected by the ordinance. . Staff wants the Commission to understand that there has to be some kind of consideration for weighing public interest vs. private interest of adding trees onto the property for public interest, or adding more trees to the protected tree list vs. the private interest of private property owners for the reasonable enjoyment of the property. . She said if more trees such as redwoods are added to the list, it may discourage some property owners from planting those trees because they know that in the future they would not have the discretion to determine whether or not the tree is becoming a problem; it is too big for their back yard and they would have to come to the city for permission to remove it. Steve Piasecki: . Clarified the reasons for not adding more trees to the list. Many of the trees on the arborist's list were not native and need artificial irrigation and it was not heard that they had a large presence in the community. He said there needs to be a public interest in preserving certain trees that are valuable to the community. It should be deliberated whether the tree is a prevalent tree in the community and if so, is it important to the neighborhood. . He noted that redwood trees thrive in the Santa Cruz Mountains, but not on the valley floor where they have to be artificially watered; people plant them for privacy and remove them when they become a problem. The question is what benefit is there to Cupertino Planning Commission 5 February 27,2007 · Then the question is what benefit is there to have the ordinance structure requiring that every time a redwood tree is to be removed, the public has to seek permission to remove it. Com. Wong: . Asked if the new language for the back yard tree removal was in the existing ordinance. Aki Snelling: . The existing ordinance does not make any differentiation between rear yard and front yard. It is completely new language to the draft ordinance. . Relative to tree replacement, likeness for likeness, she said that all Oak trees are protected specimen trees. The Planning Commission suggested adding the language "all species". . Relative to the public nominating trees on public or quasi-public properties, she said there is an application form for nominating a tree; and noted that it was more than a decade since a heritage tree was approved. Steve Piasecki: . Said that the heritage tree has more control and review process to remove them; they are important to the whole community for many reasons. Com. Wong: . Asked the Assistant City Attorney if in-lieu fees could be used as a mechanism to help the city. Eileen Murray, Assistant City Attorney: . Said other cities use it and it hasn't been challenged to date. In many cases it is an option whether you want to plant on your property or pay an in-lieu fee; it is not mandatory. It is a legal fee and is used in other cities. . Said she was not certain if they could make that choice or not. If they have five trees and they want to cut them down, they can replant two and pay an in-lieu fee for the others. The city makes the choice. Com. Wong: . He expressed concern because they were trying to make it easier for people to get a permit to legally cut down a tree; if someone illegally cut down a tree or a developer cut down a tree, perhaps he would have the funds to pay the in-lieu fees; the city would benefit, the public would lose. Steve Piasecki: . Said that presumably the in-lieu fee would only be used when it is unreasonable to put the trees on the property. The distinction would be made and it would provide flexibility for them. Aki Snelling: . Said that an article would appear in the Cupertino Scene to inform the community about the newly adopted tree ordinance, newly created portions of the ordinance, fees, and also to inform them of the tree management program . Said the tree ordinance encompasses the five specific specimen trees, and also trees included in the approved landscape plan. Chair Giefer: . In lieu of a landscape plan the discussion relates to the status of five trees that are designated as protected. Cupertino Planning Commission 6 February 27,2007 · Said that a more equitable policy is provided to help the homeowner stay in compliance if they want to remove a protected tree as opposed to paying for a retroactive tree permit. The homeowner would not be deprived of his/her rights to remove a tree. · Questioned the new section on Page 2-25 regarding retroactive tree removal. Aid Snelling: · Said if a person wanted to remove a specimen tree on their residential property, it would be a $150 application, as opposed to requiring a Planning Commission tree removal permit fee currently of $2,536. · Said there was no fee established for a retroactive tree removal; in the tree management section 14.18.145, the language is included to allow for someone with existing trees on a property to get approved a tree management plan on the property. The Planning Commission has not yet discussed ifthere is any fee for that plan; it wasn't discussed in the past meetings. Chair Giefer: · If I have a development that was established long before the city had tree management policy or privacy landscaping plan, and I wanted to come back as an apartment owner or multi high density housing unit, it would make a lot of sense; if I am a single family owner, I think that both the tree removal policy and fees as well as the in-lieu fees would be a much simpler process for me than going out and hiring an arborist to evaluate my stock of trees on my property. I think for a single family dwelling that is somewhat overkill, because I may have six trees on my property if I am on a 6,000 square foot lot. Aid Snelling: . Said it could be the case since most of the lots in the area are typically 6,000 square feet or in that range. It would be better for the owner to go through the single tree removal permit application than do the tree management plan. Chair Giefer · One question that came up as we were discussing tree removal; if I decide that I can replace some of the trees on my property and I make a donation to the city tree fund, can we stipulate that the tree fund dollars are to be used to replace with large trees so that we don't end up with crape myrtles all over the city. Eileen Murray: . Said anything can be stipulated; it would depend on how the program was set up. Com. Kaneda: . Asked staff to explain the landscape plan if there is a developer involved. Aid Snelling: · Used as an example the New Whole Foods Building off Stelling and Stevens Creek, there is a landscape plan for that development site approved by the City. All the trees on the landscape plan are considered protected trees by virtue of being on that approved landscape plan; so regardless of whether or not they are one of the five specimen trees or not, they could be other types of trees, but because it is an approved landscape plan, all of those trees on that development site would be considered protected trees. If they wanted to cut down some trees, they would have to go through the tree removal permit process and they could not just remove them because they are not specimen trees. Cupertino Planning Commission 7 February 27,2007 Com. Kaneda: . Asked staff to explain the difference between the ISA appraisal guidelines and the purchase price and installed cost. Aki Snelling: . ISA guidelines appraisals are calculated by a certified arborist and take into consideration the tree species, how large the tree is, location factors of the tree, and how healthy the tree is. There are many different factors used by the arborist to calculate the assessed valuation of a tree; and in some cases using those guidelines has been considered overly excessive or over burdensome for most people who want to remove large trees. . Previously there was a homeowner who wanted to remove a Deodar Cedar tree which was a protected specimen tree, and the arborist calculations/evaluation were approximately $15,000 as an in-lieu fee if they couldn't replace that tree on site. The Planning Commission felt that was an overly burdensome fee and therefore staff is recommending a more reasonable approach with in-lieu fee such as purchase cost and installation which is not as much as ISA guidelines would typically value a tree, but still would allow a person to purchase and install replacement trees for a property. Com. Kaneda: . Referring to the rear yard and front yard tree removal section, he questioned why Oak trees greater than 18 inches and heritage trees are excluded from the recommendation. Aki Snelling: . Said that the fact that Oak trees are considered valuable and are on the protected specimen tree list, they would already be considered very valuable, but at that size, the value in terms of its age could be significant to the community. That is why staff chose the five trees, and heritage trees by virtue are meant to be maintained. . Said the city arborist provided an explanation why he felt the selected trees ought to be retained in the current tree protection list. Com. Miller: . Responded to the comment about whether it is overkill to have a tree management program on a private residence. He agreed that it might be overkill if you think about a tree management program as opposed to paying $150; however, it is not the $150 that is the issue; it is the fact that you might have to replace that tree with something that may cost several thousand dollars; whereas if you have a tree management program, you can remove it and not replace it at all. There is a significant amount of difference in terms of the cost to the homeowner. Chair Giefer opened the public hearing. Jennifer Griffin, Rancho Rinconada resident: . Said that Oak trees are integral to the history of California, and should always be valued and protected. Every Oak tree in this area should be maintained and protected as they are a state symbol and is recognized as a hallmark of the state of California. She said it was important that the children be educated about the different types of trees in the area. . Commended the city for protecting its trees and for having an ordinance that protects and promotes the health, integrity and beauty of the city trees. The neighborhoods have always benefited from the presence of large trees, whether the lots are small or large. It is important for the downtown area of the city to have shade trees. . Said she felt that rear yards should not be treated differently than side yards or front yards; the trees should be protected at all costs. Cupertino Planning Commission 8 February 27,2007 . Said it was important that the trees are protected during construction; she commended the city for the excellent job in fencing them and making sure that they are protected. · She suggested adding Sycamore trees to the list as they do occur along creek beds. Chair Giefer closed the public hearing. Chair Giefer: . Asked the Planning Commissioners to include comments on the area where consensus was not met in previous discussions, including additions to the protected species list, whether or not to differentiate between front and rear yard trees, the tree management program, and in-lieu fees. Com. Wong: . Explained that the process had been an 8 month process brought to the Planning Commission for recommendation to the City Council because of the concern of people illegally cutting down trees. The process will be streamlined to encourage residents to get a permit for tree removal; if trees are illegally cut down, there will be a higher fee to pay. . Said he agreed with staffs recommendation on additional trees for the protected tree list. . Relative to the front and rear yards, as staff suggested, we are talking about private property rights vs. the public, and I believe that by infringing on the back yard other than the privacy protection plan that we have for our Rl and for our Planned Development areas, I believe that property owners pay a large sum to live here in Cupertino, and they should have their rights also. He said he supported rear yard tree removal. . Said his concerns regarding in-lieu fees were that they were using them as a mechanism for the city to get more funds for putting the trees somewhere else. The goal for the tree ordinance is if someone cuts down a tree, I believe that the tree has to be replaced; it doesn't have to be for likeness for likeness; but if a Deodor Cedar was cut down, you cannot replace it as fully mature because of cost; I would suggest you try to replace it with the best possible, either 24 or 36 inch box tree; it has to be replaced. Unless they go through the tree removal process and go through the system and explain based on health, safety or welfare concerns. There has to be some kind of findings, and those are the three findings suggested for that to be cut down. . Said he did not support the replacement plan; and felt that some of the suggestions made even though done through ISA guidelines, were excessive. The goal of the tree ordinance is to make sure that people can legally cut down the trees and have a reasonable replacement plan. . Said he supported the tree management plan suggested by Com. Miller. He said his concern about the heritage trees is that they also can be overgrown. I want to not be exclusive, but be more inclusive, that probably would not be used, but if there was an overgrown heritage tree, I want to make sure that the public has access to this tool as well. . Regarding the nomination of heritage trees in public right of way areas, I do have a concern about that, but need to think through that; the other thing is that there was suggestion if we do have an in-lieu fee and it goes into a pot, we have no guidelines for it. That is why I have concerns, if we are making suggestions for doing in-lieu fees, we haven't seen what the guidelines are; there were suggestions that were made on the dais, but that needs to be flushed out, and if you have a public right of way in front of private property; let's say that a protected tree was planted in the public right of way, the property owner is responsible to take care of that tree. The property owner does not have the right to say what kind of tree that can be planted in front of there. We have to outweigh what is the benefit for the public vs. private property and maybe, I am not saying crape myrtle, but there has to be some kind of method that the private owner can pick the tree that is their public right of way because eventually they have to get the permit in order to cut down the tree. If we do approve the in-lieu fee and the city plants a protected tree between the street and the sidewalk, the property owner has to Cupertino Planning Commission 9 February 27,2007 maintain the tree. If it becomes overbearing, the property owner has to pay the permit under the ordinance; they have to go through the process. Aki Snelling: . If it is a city street, it is on public property; the private property owner whose property is right behind the street tree, would have to maintain the tree; but if there is any request to remove it, it would come through the city; or the property owner could go to the city and request that a tree removal permit, if they need to remove the tree for some reason. . Clarified that in-lieu fee funds could be used for plantings within the city, not necessarily in front of the subject property where the tree is being removed, but throughout the city; and the Planning Commission was discussing what criteria would be used. Steve Piasecki: . Said the principle is to try to maintain the tree canopy in the whole community, so that money will always go toward trees and the urban canopy doesn't have to be necessarily in the front of the individual's property. Com. Wong: . Said his concern is that there may be a reason why the private property owner does not want to have the tree in the public right of way; they don't want to clean up the tree cuttings. Steve Piasecki: . Said that it does not have to be in their public right of way; it goes to the in-lieu fund, Public Works determines the need to put trees in another location in a park or along the major arterials where it has been under-planted in the past; hence it won't necessarily end up in the front of their house. Com. Wong: . Education, enforcement and notification is important and can be worked at the staff level. He said he felt they were headed in the right direction and thanked staff. Com. Miller: . Said he felt they were on the right track with the tree management program. . Suggested removing the language "except for trees designated as heritage trees" as part of that program; if the reason for the in-lieu fee is because there is no room to plant a tree on a private property and specifically with respect to residences, that there should not be an in-lieu fee, it is a situation in which there was over-planting. Said he did not support in-lieu fees and based on the reasons given for them, did not see them as justified. . With respect to replacement costs, he said that just because a very large tree reaches the end of its life, he did not feel it was justification for forcing a single property owner to replace that tree with a very expensive replacement. If people other than the property owner have rights with respect to a tree, it is an issue of public rights vs. private rights, they should also have a financial duty as well with regard to the bill if replacing a tree. If the city's policy is it is a large tree that has been growing for a longtime, and the current property owner is responsible for spending thousands of dollars to replace it, it is unfair and inequitable and there should be another way to do that. The city could collect a tax to be used to replace a larger tree, or not require such a large replacement. He said he questioned the logic of insisting that a very large tree at the end of its life has to be replaced by another large tree. . He summarized two alternatives: one that the cost of replacing a large tree with another expensive large tree can either be subsidized by the city or the size of the trees to be planted could be reduced for replacement at a more reasonable cost, to encourage compliance by Cupertino Planning Commission 10 February 27,2007 homeowners. Homeowners in general are not going to want to spend thousands of dollars if a tree has reached the end of its life and they are now required to replace it, and it is not going to encourage compliance to force them to do that. · Relative to the back yard issue, he said he felt it was an issue of public vs. private rights and in his opinion the back yard is more of a private space that a private homeowner should be entitled to use as they see fit. If there are trees that do not work very well for their private enjoyment, the back yard is their private area and the city should not be insisting that trees be kept on that property or replaced at very expensive costs. · Relative to 14.18.180, Item 4, he said he would remove the language "excluding any Oak tree with 18 inch diameter." It is still an issue of private property rights and we should not be limiting it to any tree whatsoever. The front yard is a different story and that is where the trees are more involved in the issue of the public's rights. · Said his justification for not supporting expanding the current protected tree list was that the arborist strongly urged not expanding it. · Said he did not support designating heritage or protected trees, and did not support anyone having the permission to make an application or designate a protected tree or heritage tree within the public right of way, which is an issue that goes back to what Com. Wong was discussing in terms of the responsibilities that a neighbor can enforce upon an individual property owner which seems to be an equity issue. Chair Giefer: · Commented that the plan specifically states that only the property owner can nominate a tree. Com. Miller: . Unless it is in a public space, and right of way is public property. Com. Kaneda: . Supports the specimen tree list. . Does not support rear and front yard tree removals. . Said he felt in-lieu fees were a good idea, and questioned if the ISA guidelines were the right way to calculate the fees. Aki Snelling: · Staff would determine a purchase price and installation cost after calling a number of nurseries to find out what that fee would be and averaging the overall cost. Com. Kaneda: · Said it could potentially be problematic because there may be arguments about whether or not that was the right number, but realistically if you do something like that, it makes sense to me to have the details of how you would do that. The other issue is once the city gets this check from the homeowner, is there some way that we can make sure that it just doesn't sit there for the next five years and collect interest and the tree does in fact get planted somewhere in the public property within a reasonable amount of time and make it the same type of tree. Eileen Murray: · Said that once the fund is set up, criteria on how it is to be used would need to be determined; and turnaround time could be one of the specifications. Cupertino Planning Commission 11 February 27,2007 Com. Kaneda: . Suggested that a reasonable time frame be determined, and replacement be the same specimen of tree that was removed. . Said he was pleased with the tree management plan; and noted there is a process for removing heritage trees which is not part of the tree management plan. Chair Giefer: . Regarding adding trees to the tree list, I think that the testimony from the last meeting and my own experience walking through Sycamores along the riparian trails along Stevens Creek . Corridor and also along the railroad track where Regnart Creek crosses the railroad tracks between Highway 85 and Rainbow Drive, there is a number of Sycamores as well as Oaks and other species there that were never planted, that appear to be native and indigenous to that area. If you walk up the canyons in my neighborhood to the open space, they are filled with Bay Laurels. I think they are indigenous to the low land of the low hill lands in the area; so I do believe that there is a case for adding both sycamore and Bay Laurels to the list, and I would like to see those added. The testimony we received last time had a much longer list of trees, but those are the ones that I run into when I am hiking in the area, so I would like to see them added. . Front vs. rear yard, one of the objectives we had was to simplify the tree policy to make it more understandable, more embraceable by our community. I think once we start adding caveats on why I need a permit for the same tree in my front yard when I don't need it in my rear yard is apt to increase public confusion, and so I don't agree with that one. . In-lieu fees, if we want to provide shade for our community and continue our urban canopy, then if I am unable to plant a large tree to replace a diseased tree or dying tree, or one that is just not convenient for me to have in my yard, we need to make an effort to replace our urban canopy, and by having an in-lieu fee with the right type of requirements, I have stated that I would like to make sure that we use the funds within a 12 month period after it is collected. . Said she was not opposed to the tree management plan, provided it is part of a new landscaping plan that comes before the Planning Commission. . Said she was not opposed to the tree removal policy if she was renovating or developing her property, and came in and asked for re-Iandscaping and removal of certain trees. She said she supported it provided it was on new development that was coming to them . Suggested that Section 14.18.080 be moved up to follow the heritage tree policy for ease of use by the community. She said using the different table for costs and looking at the market value of replacement and installation trees, seems to be a more realistic fee schedule if we want' to use it for in-lieu fees than the arborist's schedule; which in the past just given what this Commission has done in the past, we tend to not feel comfortable with the ISA fee schedules. I think if we did a market rate calculation and just averaged it out, that may be a more appropriate fee schedule for the in-lieu fees. . She said there was consensus regarding the fee schedule; and asked if there was a cost associated with doing a tree management plan and should there be a fee schedule for that. Steve Piasecki: . Said that staff was discussing the plan and there would be a cost associated with it. Chair Giefer summarized: . There is consensus regarding tree management plan; the group has not discussed the fee schedule associated with that, but appear to be recouping the fees in general, which includes today's fees as well as fees in the future when the trees are removed. . No consensus on in-lieu fees with this number and no consensus on front vs. rear yard trees. Cupertino Planning Commission 12 February 27,2007 . There is a 3: 1 vote on additions to the tree list. Motion: Motion by Com. Miller, second by Com. Wong, to approve Application MCA- 2006-02 with the following changes: to 14.18.145, (page 2-18) to remove the words in the last paragraph "except for trees designated as heritage trees, no heritage trees shall be permitted to be removed in conjunction with an approved tree management plan"; Page 2-23, Item 4, top of page, remove "excluding any Oak tree with an 18 inch dbh or greater and any heritage tree"; Section 14.18.185, remove the reference to in-lieu fees; (Page 2-25) eliminate the two 48 inch box, and replace with not larger than 36 inch box trees and not be more than 2 for 1. Com. Wong: . Asked for clarification on Page 2-25, on over 18 inches and up to 24 inches, is the suggestion two 24-inch boxes or one 36-inch box, and for over 24 inches and up to 36 inches, four 24-inch box and one 36-inch box tree? Com. Miller: . Suggested not having the large numbers to begin with; perhaps the most we should be trying to replace is 2: 1. Over 18 inches and up to 24 inches, either two 24-inch box or one 36-inch box; over 24 inches, two 24-inch box or one 36-inch box; for heritage trees to keep the cost down, replace it with over 36 inches and a heritage tree, keep it to one 48-inch box. Steve Piasecki: . Referred to Page 2-15, the identification tag for heritage trees; change the passive wording to state "heritage tree No. X is protected by the tree ordinance; do not prune or cut before contacting the city." Com. Miller accepted the friendly amendments. (Vote: Failed 2:2; Corns. Miller, Wong voted Aye; Corns. Kaneda and Chair Giefer voted No; Vice Chair Chien absent). Steve Piasecki: . Said that staff would make calls to nurseries to find out costs of five protected species replacement costs by size to provide more information. Staff will also outline the areas where there is a lack of consensus and try to offer the alternatives; hopefully will facilitate the discussion in two weeks. Com. Wong: . Said he would vote against a continuance because he felt the 8 month period to discuss the issue was a disservice to the public. Com. Miller: . Asked Com. Kaneda to explain his position in terms of not making a distinction between the back yard and front yard. He said he felt there is an issue in terms of how to balance public rights vs. private rights, and he said he saw the back yard as being more of a private right area than the front yard, and was a compromise. He asked Com. Kaneda to comment on why he did not feel it was appropriate. Cupertino Planning Commission 13 February 27,2007 Com. Kaneda: . He said that he asked the question earlier about what is the current policy; and he understood the current policy was that back yards and front yards are protected. He said that he did not see a problem with that as it was only a small group of species and he could see protecting them in the back yard or front yards. Com. Miller: . Said it is not just heritage, it is all protected trees, and any other trees that may have been designated in the landscape plan as protected because they came in with an application. It could be a fairly large number of trees. Com. Kaneda: . Said it was his understanding that you have landscaping plans when you are talking about planned development primarily. Com. Miller: . We have had issue with this very thing; where people have moved into these planned developments and found the tree to be onerous and then chopped it down, and then they appeared in front of the Planning Commission trying to explain their actions. . Concurred that there was a mechanism; however it was an expensive mechanism that unfairly burdens the individual homeowner because we think there is a benefit to the greater community in doing so. . Said they adjusted the fees so that they are more reasonable; they have not adjusted the replacement requirements. The associated costs if an Oak tree are $5,000 per tree; it could be $10,000 for two replacement trees. . Said he received an email from a resident who said they were working on their landscaping plan and were going to put Oak trees in their backyard and when they listened to the discussion here, they decided against putting Oak trees in their back yard because they are too hard to get out and too costly to do so. Chair Giefer: . Said she heard the same comment about not putting in Oaks because they don't want to have to deal with it in the long terms. Com. Miller: . Said the Oak trees were a general concern; from a private property rights standpoint, it is important to allow some flexibility in the back yard; that is the basic premise. He said he felt the back yard is more private than any other place on the property and we should allow some flexibility and some reasonable costs or alternatively not over-burden a homeowner. . Said that staff pointed out that there had been some applications where the requirements as stated in the current ordinance were to spend $15,000 to replace a tree and not anyone on the Planning Commission was willing to insist on that position. Chair Giefer: . Said that is the reason they went with more of a market rate based cost system to alleviate that. Com. Miller: . Said he was still concerned that they are talking about thousands of dollars to a homeowner who might be trying to make ends meet and have two people in the household working, and nobody expects that suddenly they are going to have to spend $3,000 or $4,000 to replace a tree in their back yard. Cupertino Planning Commission 14 February 27,2007 . Said he did not mean to put Com. Kaneda on the spot, but felt it was important to flush it out more. Com. Kaneda: . Asked staff to provide information relative to the comment about market rate prices. Aid Snelling: . Said at a previous meeting, they priced the 24-inch, 36-inch box, 48-inch box, protected specimen trees, and in that particular case it was a Deodor Cedar that was removed. In that particular case, the trunk diameter of the Deodor Cedar was about 30 inches and the Commission rather than use the ISA guidelines which would require about a $15,000 replacement fee. . Said when calling different nurseries, the largest was a 48-inch box, which purchase price alone in market rate would have been about $800 for a 48-inch box. An applicant found a 72- inch box Deodor Cedar which was the replacement tree that the Commission approved, and it came out to close to $5,000; the difference between $5,000 and $15,000. Com. Kaneda: . Asked for clarification of Pages 2-59 and 2-60, relative to the prices for different types of protected trees. Aid Snelling: . Explained that the numbers on Pages 2-59 and 2-60 represent staffs recommended in-lieu fees based on purchase cost and installation; the ballpark figure the nurseries use is the same price as the purchase price, the purchase price is doubled to get purchase and installation. Com. Kaneda: . I understand that, on Pages 2-24 and 2-25 we have got this guideline for replacement trees; the concept is if you take out a large tree then you find out what is the equivalent; if it is a 24-inch diameter tree, then you are required to put in three 36-inch boxes for example. If it was a Deodor Cedar it would be $700 times 3, totaling $2,100. . Said he was not opposed to the current ordinance. Com. Kaneda: . Said he had several concerns and would prefer to continue the discussion. He said he felt 36 inches was unreasonable and did not give valuation based on the ISA guides. He questioned why there was not a prescriptive recommendation as opposed to the ISA recommendation. Aki Snelling: . A trunk diameter of 36 inches or larger is a fairly significant sized tree, and if it is an Oak tree, the value of that tree significantly goes up based upon that size, particularly because Oak trees are slow growing. . She said a tree of that size would be a significant age, and the reason we have suggested ISA guidelines because it would be very difficult to come up with a tree replacement standard for trees that large, typically you don't see trees that large that will be removed. Motion: Motion by Com. Kaneda, second by Com. Miller, to continue Application MCA- 2006-02 to the March 13, 2007 Planning Commission meeting. (Vote: 3-1-0; Com. Wong No; Vice Chair Chien absent). Cupertino Planning Commission 15 February 27,2007 Chair Giefer declared a recess. OLD BUSINESS: Chair Giefer: · Recalled that 6 months ago a restaurant operator on Stevens Creek came before the Planning Commission with regard to exposed neon that they had added to their sign without a permit and is currently not conforming to the current sign ordinance. She said it appears that there is a new tenant in the restaurant, but the exposed neon remains. · She asked staff to provide what the next course of action would be. Steve Piasecki: · Said staff would report back to the Planning Commission on the issue. NEW BUSINESS: 4. 2007 Planning Commission Work Program. Ciddy Wordell, City Planner, presented the staff report: . Explained that the work plan is presented to the Planning Commission each year, and is based on the City Council goals set and actionable items from the City Council program. Also included are some projects carried over from the previous year, and also private projects on the work program to get a sense of what the workload is and how it will fit with the other things that the Planning Commission and City Council plan to do. Also included are unprogrammed items that were things that people were interested in working on but did not get into the schedule. . There will also be an opportunity to consider some additional projects which is part of the work program. . Reviewed Exhibit A, Planning Commission work program 2007, new 2007 projects as listed below: . She reported that the City Council said that the Historic Preservation Policy which is part of their work program could be carried over to the Planning Commission. This was a result of their deliberations on the tank house and the feeling they needed to have some policies or guidelines about historic structures. Staffs intent is to look at their past efforts to address historic issues, to look at what the General Plan policies are, and to look at what the opportunities are and get some direction from City Council on where they want to go with it. . A new project on the work program is the General Plan Implementation Monitoring, which is required by state law. Staff will bring it to the Planning Commission in May for the opportunity to see things in the policies and strategies that are identified as things they should be working on, such as creating a One-Percent for Art Ordinance; talking about updating some plans, to identify the strategies and policies that need to be implemented and those that could be implemented in the next year. . Carryover projects include the Heart of the City Specific Plan, which needs to be updated to reflect the General Plan; the Crossroads Streetscape Plan was considered by the Planning Commission and City Council a couple of years ago and was put on hold so that the General Plan could be completed. . The Rl Ordinance as it relates to the hillside standards which is coming back next month and the tree ordinance amendments which was discussed tonight. . A project from last year is the Cleo Avenue Affordable Housing. Cupertino Planning Commission 16 February 27,2007 . The Green Buildings Program is continued and was also on the City Council list. A question is it also looking at sustainability and not just green buildings; and the intent is to look at more than just the green building strategy that is only a part of the city's sustainability program. . North Vallco Master Plan is underway; one community meeting was held in January and another is scheduled for March 8th, and one in April. Staff plans to get back to the Planning Commission and City Council earlier than July. . Private projects include Villa Serra residential, Larry Guy 21 unit residential, Furniture 2000 site, and Target addition of retail space. . Building permits include Vallco, Oak Park Village, and Whole Foods. . Unprogrammed projects include apartment conversion, senior housing incentives, and public transportation/light rail. Com. Miller: . Suggested that the Planning Commission propose to the City Council to move up the timing on the North Vallco plan. One of the issues that came up with the north Vallco Master Plan was that applications that come in during the planning process have a difficult time; people would like to see the planning process done; specifically with the Pacific Resources Project. The quicker it can be moved up, the less it will impact applicants who may want to come in with a proposal for that area. Com. Wong: . As we are being proactive in the North Vallco plan area, and in the South Valko area since those two projects are dead based on the initiatives, and we don't have anything in the pipeline now, how can we as a city be proactive in that area. Ciddy Wordell: . In South Vallco, one of the strategies and policies that will be discussed with the General Plan implementation, is it calls for a master plan in that area, and unless it is moved up in priority, there would be the opportunity when all of the General Plan policies are reviewed to say now is the time to do that and let's put it on the work program. Com. Wong: . My suggestion would be that we know the Crossroads streetscape plan is controversial; and a suggestion I would say is that streetscape plan that staff suggested would really make sense on Vallco Parkway, and Mr. Piasecki and I had that conversation. Is there any way we can do a Vallco South streetscape plan or master plan while there is a one year moratorium, unless there is a plan that was drastically different from what is proposed on both those applicants' sites that maybe during the down time of those 12 months, this may be an opportunity for the city to look into Vallco south as just as Commissioner Miller is doing in North Vallco. Ciddy Wordell: . In response to Com. Kaneda's request, she provided information on the Green Building Program. The policies and strategies in the General Plan are quite broad; that is the basis of what we are looking at from resource conservation, energy conservation, forming a task force to look at what the city wants to do, doing an inventory, and the Green Buildings Program is a part of that. A consultant will be hired for Phase I which is an audit of what the city is currently doing and part of what is in the General Plan as well. . They would do the audit over the next few months and we are hoping that they will come to the Planning Commission at the beginning of this process and give everybody an overview of what the issues are and what this initial phase as well as additional phases will be. Once they do the audit, they will evaluate the strengths and weaknesses, where the gaps are, and what Cupertino Planning Commission 17 February 27,2007 might be 'done to fill those gaps. We will set some priorities, when you fill those gaps, which projects then do you undertake; I think there seems to be a feeling that green buildings is going to be the way to go, but I think it remains to be seen. Then the General Plan calls for some sort of task force to oversee this, and we will need to do a lot of community outreach, community education and staff education; so I think it starts out very broad and will probably focus in on one or more projects. Chair Giefer: . Relative to some of the items on the projects list, she recalled that the Historic Preservation Policy years ago was put together and it was not enforceable and was not adopted by the City Council at that time. Ciddy Wordell: . That is why we want to start off by saying here's the history of what we have done regarding historical preservation. Steve Piasecki: . There is a big distinction between what they were doing in that past round and what we are talking about in this round; this came up because of Stocklmeir's property that the city owns; the tank house and McClellan Ranch Park; we are talking in all three cases about publicly owned facilities. In the past, there was a discussion about do we need historic preservation ordinance that would apply to private property and to private homes; we probably have relatively few of those, and we may take small steps and do the one and if people want to get into the other possibly. It is a different level and that would be explained to the Council when we proceed with this. Chair Giefer: . Said it was important to understand if they are looking for an ordinance or a guideline, and it would govern how they prioritize vs. something like North Valko, which she agreed should be a high priority in order to get ahead of the development. . Said she would like more staff time devoted to moving North Valko up as Com. Miller stated to make sure it is completed ahead of development applications that come in that area, specifically Apple. . In prioritizing the Commission's and staffs workload that would be one comment I would like to pass on is that if it is just more crisp direction on what the final product would be, that would help us in terms of moving forward on that, and also staff for prioritizing. . The other thing I would like to suggest is we are currently reviewing, as directed by City Council, the Rl, RHS overlay as part of the Rl. Another section that has become topical recently on the Council level is the design guidelines in the RI. As part of that under Section 1, under 19.28.060, Page 31; it talks about "the mass and bulk of a design shall be reasonably compatible with the predominant neighborhood pattern. New construction shall not be disproportionately larger than our out of scale with the neighborhood pattern in terms of building forms, ........ entry feature heights." She said she was bringing this to the Plannit may be something to suggest to Council that we review it and try to further define what that is. Com. Wong: . Commented that in 2005, they specifically talked about design review guidelines. He said he was not certain if the Council, Commission or staff wants t6 reopen the R 1 on the design review guidelines because what is currently on the books is working and he recommended more time before reopening it. Cupertino Planning Commission 18 February 27,2007 Chair Giefer: . Said she was bringing it up to be more proactive; it is an issue that has been identified as the interpretation of that section and what it means seems to be in conflict right now. . We had the house that we looked at in Garden Gate with the Juliet balcony, and there were features on the front of it that home even though it is a neighborhood in transition, it came to us from County, so there were homes that were developed that were larger, but on this particular street, it still had a lot of the original single story small homes on it, and some of the one story homes had been redeveloped as well. That home that came in with the balcony that was appealed was significantly larger, and I sensed that we were all surprised as an example at the entry height feature was one of the things that came out. When you read the language of this, it was disproportionately larger and out of scale with that portion of the neighborhood, so that proposed home was in conflict with what was in conflict with what was there, and so this is largely open to interpretation, and I do recall the discussions; what does that mean, 50% of the houses have changed, 25% of the houses on the street have changed; what do you do when if you are the first one to develop, should you be able to just come in and level and build a 6500 square foot home next to your neighbor's 2100 square foot home? Com. Wong: . Said that since 2005 there are less appeals of the DRC and of the Director coming to the Planning Commission; the appeals coming to the Planning Commission are the ones where both parties feel strongly about their principles and that is why we need a third party, either us or the fifth commissioner. Chair Giefer: . I don't feel as strongly about this, it was just something I wanted to bring to the Planning Commission's attention that I have noticed that this has been discussed more and more at Council. Com. Wong: . That is only because the most difficult ones that couldn't come to resolution should be coming to the Planning Commission and City Council. . Said that in 2005 the ordinance was revised to bring more privacy, more notification, and more prescriptive rules at the ordinance, so that much could be handled at staff level. It is a good policy and is working. Com. Kaneda: . The issue of monster homes is an issue up and down the peninsula and in the Bay Area; you must talk to other cities to discuss their policies; how different are our policies from other cities up and down the peninsula. . Can you see a clear direction that the cities are going. Is it toward prescriptive F ARs and building envelope. Steve Piasecki: . Said there were a full range of approaches to the issue of compatibility with the community; some communities are very particular, run very extensive processes that are costly and take a lot of time. Others such as San Jose is a matter of right, and you can build up to the setbacks; they are changing that now and are evaluating that. We are still far ahead of them in terms of our regulatory standards and the insistence upon some compatibility. . Said the tree ordinance is easier than this one; it is a difficult one to define. He suggested that the Commission let it run a little while longer to see how it works. There may be some examples that Chair Giefer referred to, and you will notice even in those examples, they are Cupertino Planning Commission 19 February 27,2007 getting pushed down under the ordinance. There will be a work program every year and the Commission can input into the Council, the Council can decide that is the highest priority, and move forward and do it. . Said the plate is so full and they would be hard pressed to bring anything substantive up again unless they added resources. Com. Kaneda: . One other issue is that as the issue of green buildings gets discussed, one of the arguments is there seems to be a general trend that houses are getting bigger and bigger, and what used to be a double wide closet is now a walk in closet plus a separate closet; but one of the discussions about green buildings on a residential scale, is that houses will need to get smaller. There is nothing sustainable about a 7,000 or 10,000 square foot single family home. My sense is to hang back and before you start trying to change something you changed fairly recently, to take a look at the standards and lay that template and look at that. Com. Miller: . The original ordinance that put more strict guidelines because people were concerned about overly large houses, was done in 1999 and we reviewed it in 2004, and I believe that we made some significant improvements to it. Specifically second story was very restrictive and it is a little less restrictive now and we did a better job in noticing and having people put up renderings on the property to make sure the surrounding neighbors were clear on what is being proposed, and there were several changes that made improvements, some of us would like to have seen more improvements made, but there were some improvements. It took almost a year to go through the process; it was very stressful with strong opinions on all sides, and I think that I am also of the consensus here that not enough time has passed since we passed that ordinance to really go back and reassess whether we need to do further modifications to it. We should allow at least the full five year period. Com. Kaneda: . Referred to the Historic Preservation Policy, and said when he first moved to Cupertino, it took him some time to find the downtown, city hall, as it is not on the main drive. There seems to be no downtown for Cupertino and no historic district. How many historic buildings are there in Cupertino? Steve Piasecki: . Page 2-43 of the General Plan provides a list, and is also online, including buildings and sites. Com. Wong: . Regarding green building, asked if it would include sustainability. There will be a task force where the public can get involved to give ideas prior to the public hearing; will that task force be open and broad and encompassing to make sure we include all of our stakeholders? . For the Historic Preservation Policy, Cupertino is not like a big city with many Victorian houses; it has the Eichler neighborhood with a policy on protecting that particular neighborhood, and I can see where we want to protect Stocklemeir property and places on public areas, but when you talk about private areas, what areas are we talking about. Ciddy Wordell: . Said the task force will be set by the City Council. Cupertino Planning Commission 20 February 27,2007 Steve Piasecki: . We don't know if there are any other historic areas, it will be Council driven and we think they wanted to get a handle on the public areas we discussed earlier. We need direction from the Council on that. Ciddy Wordell: . When inventory was taken approximately ten years ago, there were about 30 buildings on the inventory, and even though the City Council did not identify any mandatory measures they wanted to take, there are only two buildings they felt were of significance, one was Cupertino D'Oro Club on Homestead and the Petite Trianon at DeAnza College. Com. Wong: . Said the Stocklmeir property was a good example to try and protect, because there were some staff concerns that the building was dilapidated, but with some hard work from non-profit or private citizens the building can be saved. The other one is McClellan Ranch where there are some barnyards that could be saved. Chair Giefer opened the hearing for public comment. Jennifer Griffin, Rancho Rinconada resident: . Commented on the proposed removal of the service station at the Target site, to be replaced with retail. She questioned if it would be a loss of amenities for downtown residents and a loss of public convenience, leaving gas stations only at each end of town. . She expressed concern about the parking and traffic in the shopping area where it was already difficult in the Target lot. . She stressed the importance of protecting the Victorian houses in Cupertino and other sites such as Monta Vista High School, and the first Apple buildings. Chair Giefer closed the public hearing. Motion: Motion by Com. Wong, second by Com. Miller, to approve the 2007 Planning Commission work program, with the addition of recommendation to move the North Vallco project up if possible. (Vote: 4-0-0; Vice Chair Chien absent). REPORT OF THE PLANNING COMMISSION: The Environmental Review Committee: . Meeting was cancelled. Housine Commission: . No meeting held. Mavors Monthlv Meetine With Commissioners: Chair Giefer reported on the following: . The Fine Arts Commission was informed that the .25% contribution for development has already been collected. Staff reported they were not doing in-lieu; it is onsite. . The Public Safety Council and Mayor discussed how they want to address on a trial basis, improving the transportation around the tri schools area as well as Garden Gate and by Cupertino High School. The Council is attempting to find funds in this year's budget for a transportation project to help transport students to at least the tri school areas. Cupertino Planning Commission 21 February 27,2007 . Library growth is up 9% over last year. . TransportationlBike Pedestrian Committee was not rolled into Parks and Rec; they have likely interviewed for replacement commissioners at this time. Economic Development Committee: . No meeting held. REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: Steve Piasecki reported on the following: . Mentioned North Vallco meeting scheduled for March 8th and April 2nd . Planning Commissioners training is scheduled for February 28th. . Reminded commissioners of League of California Cities Planners' Institute. . Commissioners' dinner scheduled for March 19,2007. ADJOURNMENT: The meeting was adjourned to the March 13,2007 Planning Commission meeting at 6:45 p.m. SUBMITTED BY: Elizabeth A. Ellis, Recording Secretary