PC 03-13-07CITY OFCUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
CITY OF CUPERTINO PLANNING COMMISSION
AMENDED MINUTES
6:45 P.M. MARCH 13, 2007 TUESDAY
CUPERTINO COMMUNITY HALL
The Planning Commission meeting of March 13, 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: Lisa Giefer
Vice Chairperson: Cary Chien
Commissioner: David Kaneda
Commissioner: Marty Miller (arrived after roll call)
Commissioner: Gilbert Wong
Staff present: Community Development Director: Steve Piasecki
Assistant Planner: Piu Ghosh
Senior Planner: Aki Honda Snelling
Associate Planner: Gary Chao
Assistant City Attorney: Eileen Murray
APPROVAL OF MINUTES:
Minutes of the February 27, 2007 Planning Commission meeting:
Corrections Noted: Items 1 and 4, vote should read "(Vote: 3-0-0; Vice Chair Chien and
Com. Kaneda absent)" (Com. Kaneda arrived following votes on Items 1
and 4).
Motion: Motion by Com. Wong, second by Com. Kaneda, to approve the February 27,
2007 minutes as amended. (Vote: 3-0-1; Vice Chair Chien abstain; Com. Miller
absent).
Com. Miller arrived at the meeting.
WRITTEN COMMUNICATIONS:
Mr. Piasecki noted receipt of an email relative to an agenda item.
POSTPONEMENTS/REMOVALS FROM CALENDAR:
4. EXC-2007-02 Hillside Exception to construct a 689 square foot second story
Jennifer Jodoin addition to an existing residence for a total of 6,870 square feet,
Cupertino Planning Commission
March 13, 2007
(DeCarli residence) which exceeds the 6,500 square feet allowed, and an exception
11640 Regnart Canyon to build on a prominent ridgeline. Planning Commission decision
final unless appealed. Request postponement to the
April 10, 2007 Planning Commission meeting.
Motion: Motion by Com. Wong, second by Com. Miller, to postpone EXC-2007-02
to the Apri110, 2007 Planning Commission meeting. (Vote: 5-0-0)
5. U-2007-01, ASA-2007-01,
TM-2007-01, (EA-2007-O1)
Frank Ho (Baig residence)
10630 Linnet Lane
Use Permit and Architectural Site Approval for four
2,185 square foot single-family residences in a
planned development. Tentative Map to subdivide a
22,647 square foot parcel into four parcels ranging
from 4,575 to 5,247 square feet. Planning Commission
decision final unless appealed. Request postponement to
the March 27, 2007 Planning Commission meeting.
Motion: Motion by Com. Wong, second by Com. Miller, to postpone Item 5 to the March
27, 2007 Planning Commission meeting. (Vote: 5-0-0)
ORAL COMMUNICATIONS:
Keith Murphy, Cupertino resident:
• Spoke about the benefits of holding public hearings on different types of building projects,
even though the Planning Commission and/or Community Development Director may not feel
they are necessary.
• He referred to the issues of the Marketplace Shopping Center palm trees replacement and the
landscaping of the properties on the Richwood Drive/Miller Avenue location. He said, in his
opinion, if public hearings were held on those issues, the community would have had the
opportunity to provide input on the tree replacements.
Mr. Piasecki:
• Said that relative to the replacement of the palm trees, an arborist reported that it was
inappropriate to plant the replacement trees during the winter season and the property owner is
aware that the replacement trees should be planted within a month or two.
• Staff will look into the issue of the landscaping on Richwood Drive and also the issue
mentioned about cell towers.
CONSENT CALENDAR: None
PUBLIC HEARING:
1. U-2006-14, ASA-2006-25, Use Permit and Architectural Site Approval for
TR-2007-O1, Terry Brown anew mixed-use development: 2,500 square feet
10056 Orange Avenue commercial and three residential units. Tree Removal
of a Big Leaf Maple tree and planting of two Oak
trees. Postponed from February 27, 2007
Planning Commission meeting. Planning Commission
decision final unless appealed.
Cupertino Planning Commission 3 March 13, 2007
Piu Ghosh, Assistant Planner, presented the staff report:
• Reviewed the application for a Use Permit, architectural and Site Approval and Tree Removal
to demolish an existing single family home with a detached garage at the rear; construct two
for-sale mixed-use buildings; construct a detached two-bedroom unit at the rear of the
property; and removal of a specimen size Big Leaf Maple tree and replace it with two oak
trees, as outlined in the staff report.
• Staff recommends approval of the applications based on the model resolution; the applications
are exempt under CEQA and require no environmental action.
Com. Wong:
• Stated that the applicant is suggesting that the single lot will be subdivided into three portions.
Piu Ghosh:
• Responded that there are three legal lots on the site and the applicant will do lot line
adjustments to configure the existing lots into three new lots.
Com. Wong:
• Said he was not opposed to lot line adjustments, but expressed concern that staff considered
having it as one entity since there is going to be three residences and two office. He asked if it
was to have a homeowners association (HOA) for better communication regarding landscape
being ingress/egress, parking, etc. vs. having three legal lots.
Piu Ghosh:
Said there would be a maintenance agreement relative to the driveway and landscaping
agreements, it isn't necessary to have an HOA.
Steve Piasecki:
• Said that it was preferable to have one lot for better control. Staff would ensure whatever
agreements are written up are binding for all the different property owners. If he is
ambivalent, perhaps he would keep it all as one.
Com. Miller:
• It seems with three lots, a maintenance agreement would suffice as it is a relatively small lot.
Piu Ghosh:
• Said that the residences would have wheeled trash containers and the office spaces would
utilize wheeled containers also.
Bike racks will be provided.
Relative to tree replacement, she said that the replacement for the Maple tree would be a 48
inch Oak tree, and the applicant is also putting in an additional 24 inch Oak on the property.
Said that a privacy landscaping plan was not required for the project.
Terry Brown, Applicant:
• Explained that the project was a continuation of a project approved previously. Immediately to
the south the driveways are where that project requires them and the project to the north
requires them; the driveway on the north side of this property is shared with the project to the
north; the developable space on this project is dictated to us. We have made an effort to
adhere to the architectural style that the buildings we have done in the past. Relative to the
Maple tree, we had some previous discussion, and we made an effort to accommodate that tree,
but it is the wrong tree in the wrong place; all of the other trees in that block are Oak trees, and
Cupertino Planning Commission 4 March 13, 2007
there are probably 30 that have been planted over the years. The project to the immediate
south of that was approved a few months ago; we are relocating two mature trees, they are both
Oak trees. The arborists said that there is no good history with respect to relocating them,
because both arborists felt that both those trees were generally not worth relocating; they did
not have the kind of value normally found with an 18 inch diameter tree. We worked with
staff to meet the fairly limiting parameters with respect to the design, the predetermined
driveway locations, some architectural considerations.
He said he knew it was not standard to come before the Planning Commission and ask to
remove a large tree, in this particular case the tree is not a tree that is going to be a landmark
tree with respect to the project; it is going to be surrounded by this project, the project
immediately to the south. The last remaining piece of property is the church on the corner of
Orange and Granada and when that is done, the tree will be in the center of the project. He
said he agreed with staff that an Oak tree at the front entrance to the project is preferable and
they have lined up that tree with the existing mature Oak tree so that the project will be framed
with Oaks.
Said they attempted to meet the Monta Vista guidelines, and have worked with staff since
September/October and made most of the recommended changes, if not all.
Com. Wong:
• Asked what the difference was between having an HOA for the whole property vs. having a
maintenance agreement on three separate lots.
Terry Brown:
• The project immediately to the south was approved for three separate lots; he said their goal
was to provide home ownership opportunity for relatively small homes in that area. The
homes are for-sale units; building A on Lot 1 is a mixed use building with residence above;
Lot 2 is a mixed use building that the current property owner intends to keep; Lot 3 is a single
family residence at the rear of the property.
Chair Giefer:
• Suggested that the trash enclosure be located by the covered parking area.
• Relative to Page 1-10 of the resolution, she noted that it states the applicant shall maintain the
two Oak trees, and suggested it should state the property owner should maintain the Oak trees.
Chair Giefer opened the meeting for public comment. She clarified that a group of people for
timed speaking purposes constituted the speaker and two or more additional people, for a total
presentation time of 10 minutes. The persons not speaking would acknowledge that they are
giving up their time in allowing one person to speak on their behalf. Less than two persons plus
the speaker, the speaker would be granted 3 minutes of speaking time.
Jennifer Griffin, Rancho Rinconada resident:
• Expressed concern that such a large tree was being considered for removal in Monta Vista, as
Monta Vista did not have many large trees in the downtown area.
• She said she felt it was not prudent to remove the tree, particularly in light of the discussion of
the tree ordinance, and questioned the logic that there was enough room to plant Oak trees if
there was not enough room for the Maple tree.
• Relative to lot line adjustment, she asked how many parcels in downtown Monta Vista could
still be subdivided in the same manner.
• She emphasized that there should be adequate parking available.
Cupertino Planning Commission 5 March 13, 2007
Deborah Jamison, Cupertino resident:
• Said that whenever a report specifies that an Oak tree is being replaced, the species of the
replacement tree should be specified as there are hundreds of Oak tree species and more non-
native Oaks.
• Said there were many Coast Live Oak trees in the area which is a perfect opportunity to plant
something different and Valley Oak, Blue Oak are appropriate, and depending on whether
deciduous or non-deciduous is recommended for this area, there are a number of different
number of species of Oaks that could be planted instead. There are not many Big Leaf Maples
outside of our special area; that is a wonderful tree to have and the seeds are particularly
relished by our native wildlife; it is a very valuable tree.
• Said she had not studied the layout of the plan and was not qualified to say whether the tree is
in the wrong place. She recommended the Commission consider the value of the Big Leaf
Maple; if it is too big and needs to be replaced, there are a number of other species that don't
get as large. It is a good opportunity to get away from the mono-culture of the Oak tree in this
particular area and stick with the Maple species and even best of all, stick with this particular
tree.
Chair Giefer closed the public hearing.
Eileen Murray, Assistant City Attorney:
• Clarified that a lot line adjustment was a legal ministerial act, exempt from the Subdivision
Map Act; the only stipulations are that it cannot create more lots than originally existed and it
cannot create a substandard lot where lots were standard. She said it was done routinely and
frequently.
Com. Wong:
• Suggested planting a Maple tree instead of an Oak tree, replace one of the Oak trees with a
Maple tree; and said he would be content with a 24 inch box. It would be nice to save the
original Maple tree, but it is in the footprint; does staff have any preference as to species of
tree. (Staff responded no preference, and said it is up to the Planning Commission).
• Said he understood the position regarding value, and was concerned about the public's feelings
about replacing a native tree for the likeness, and said it could be two Maple trees at 24 inch
box, or one Maple and one Oak tree. He said he was certain Mr. Brown would be open to
whatever is fair and equitable, but felt at least one should be a Maple tree, if not both.
• He asked the applicant to review the trash enclosures.
• Said he was concerned about the location of the trash containers and the trash removal. He
said although not opposed to the project, he wanted to make it friendly with the residents
across the street, as they have a concern by having an intensity in the neighborhood which is
allowed by the Monta Vista guidelines.
Terry Brown:
• There are two trash enclosures; one is for the single building C at the rear, which are standard
residential pull units for curbside collection. There is a third trash area for Building B at the
center near the south property line; which are also wheeled units pulled to the curb. The trash
enclosure shown for the commercial and office spaces is larger.
Steve Piasecki:
• Said it could be indicated in the conditions that the two onstreet parking spaces shall not be
occupied during trash days.
Cupertino Planning Commission 6 March 13, 2007
Com. Miller:
• Supports the project; it meets the Monta Vista guidelines requirements; the architecture is
consistent with the area and it looks like a nice project. The issue with the trees, staff said that
just one 48 inch box tree would be equivalent in price to the Maple that is being removed. I
know we don't like to remove large trees, but this one doesn't work well by that building, it
would be difficult to maintain if we left it there. As one of the speakers suggested, perhaps one
of those Oak trees, would be appropriate if it was switched for a Maple if the applicant felt
inclined to do so. Otherwise I am in favor of the project.
Com. Wong:
• Supports the project; it meets the guidelines; you worked closely with staff; you looked into
the Maple tree and see how you can adjust the footprint and I think that by having two Oak
trees, it is a good idea. One of the trees should be a Maple tree and perhaps we can have one
24 inch Maple tree-and another 24 inch Oak tree.
• Said he was concerned about the trash collection, and asked the applicant to work with staff
regarding the trash collection. If both you and staff feel comfortable about it, I think there has
to be a sign showing that there are specific hours limited toward the morning. He said he was
an advocate for adequate parking.
• Said they did a good job on the architectural plans.
Vice Chair Chien:
• Said he did not have any issues with the project, and said it is well designed. Said he was
pleased to finally receive the arborist report; and requested in the future that any report include
a picture of the removed tree, as it is difficult to visualize it if the consultant is unable to
provide it.
• Supports the project.
Com. Kaneda:
• Supports the project.
• Noted in the report it states a 24 inch and a 48 inch Oak, not a 24 inch. He commended the
owner and architect for putting in more than is required.
• The building matches the context of the neighborhood; is well done, and rearranging the lot
lines makes the site work better.
Chair Giefer:
• Supports the project.
• Clarified that the applicant was proposing to put in a 48 inch box and a 24 inch box.
• Appreciate the applicant bearing with us; going with the correct arborist report, and coming
back and proposing trees more than what is required by the city; that shows good intent.
• I would also prefer that we specify it being a native Oak for the front tree and replacing the
Maple with the same Big Leaf Maple in the 24 inch box size. Some of the things we might
consider adding to the ordinance, is the one that changes the applicant to the property owners
in the model resolution; and bike racks are needed on the plan. I agree we need to resolve the
trash issues; we could move the trash for Building C to the adjacent parking structure or
covered parking; the other thing I heard was that the onstreet parking on trash day needs be
resolved either by posting No Parking during trash collection times.
• Clarified that the 48 inch box on the plans in the front is the Native Oak, and the 24 inch box in
the back is the Big Leaf Maple.
Cupertino Planning Commission 7 March 13, 2007
Motion: Motion by Com. Wong, second by Com. Miller, to approve ASA-2006-25,
TR-2007-O1, U-2006-14, with the following additions: That the applicant work
with staff to include bike racks on the property; Applicant to work with staff on
the trash collection to ensure that the location is proper, and to work on signage
on the front to ensure there is proper pickup of trash; Item 14 tree maintenance
shall be changed from the applicant to property owner; That the trees be one
Oak tree and one Big Leaf Maple tree, the front will be 48 inch and the rear will
be 24 inch box tree. (Vote: 5-0-0)
Chair Giefer declared a recess.
2. MCA-2006-01 (EA-2006-12) Municipal Code Amendment to Chapter 19.28 Single-
City of Cupertino, Citywide Family Residential (R1) Zones regarding buildings
Location proposed on properties with an average slope equal to
or greater than fifteen percent. Continued from January
23, 2007 Planning Commission meeting. Tentative City
Council date: Unscheduled.
Steve Piasecki, Community Development Director, presented the staff report:
• Provided a summary of the background of the application to review Chapter 19.28 Single-
Family Residential (R1) Zones regarding developments proposed on properties with an
average slope of 15% or greater, as outlined in the staff report.
• In January 2005, the City Council approved amendments to the R1 Ordinance, which became
effective within approximately 45 days, with a statement stating that any lot greater than 30%
had to implement the development standards of the RHS ordinance, and lowered the threshold
down to 15%, which meant that any of the lots in the area upslope from the 10% line would
have to be evaluated to determine if this applied to them. It also then applied to some of the
lots along the Stevens Creek floodplain. The Council heard comments that the issue was not
discussed extensively during the hearing process for the R1 ordinance, and the Council agreed
to revisit it and provide the opportunity to speak to the specific issue.
• The issue the Council and Planning Commission struggled with was that there were properties
with hillside characteristics either because of their location or their slope that are zoned R1,
and some are zoned agricultural. The bottom line is that they could have greater house sizes,
greater grading activity and as a result, the need for more retaining walls.
• At the January 23, 2007 meeting, the Planning Commission looked at the issue and requested
more information as outlined in the staff report, including how many properties are affected by
the new R1 Hillside Standards located along Stevens Creek watercourse and floodplain areas;
located in hillside areas west of the hillside transition line, and how many projects have been
affected by the new R1 Hillside Standards. Responses are contained in the attached staff
report, Pages 1 through 5.
• Reviewed the Planning Commission's options: To recommend retaining the current R1
hillside standards; recommend revising the R1 hillside standards by changing the triggering
point, geographical applicability, including or not including the lots along the Stevens Creek
corridor or at the base of the foothills, or setting a minimum lot size for applicability of the
hillside development standards; or revert to the R1 hillside standards that existed prior to the
2005 R1 Ordinance Amendment where only development on slopes of 30% or greater are
subjected to the hillside standards, regardless of geographical location.
Com. Miller:
• In the RHS ordinance we reduced the allowable building area based on the average slope of the
lot, and my question is wouldn't it be more relevant to focus just on the slope of the building
Cupertino Planning Commission
March 13, 2007
pad instead of the entire lot, because houses are not built over an entire lot and very often, and
probably even in this area. I have seen some applications, where there might be a very steep
area on the lot and also a very large flat area and yet that lot would be penalized even though
the slope of the area might not impact the flat area where the house is built at all.
Steve Piasecki:
• Said it was an option; and that same factor applies to any other RHS zoned properties where
people prefer to build on relatively flat areas, but you could suggest that as an option.
Com. Miller:
• When the RHS ordinance was crafted, what was the reason behind using average as opposed to
specific building sites slope?
Steve Piasecki:
• He said he did not have the answer as it was prior to his working at the city. He said he
thought the sense was you could argue in doing what you are suggesting that there would be an
incentive to build on flatter areas. At the same time in the RHS and the General Plan they told
people that they should not be on prominent ridgelines which tend to be the flatter areas, hence
there is some conflict with the prominent ridgelines issue.
Com. Wong:
• Based on the research, parcels affected located along the Stevens Creek watercourse and
floodplain corridors about 177 parcels, and parcels affected that are located upslope of the
hillside transition line in the hillside R1, is about 111 parcels; what kind of outreach have you
done to these parcels because if they agree or disagree, they are going to be adversely impacted
by whatever decisions is made tonight.
Gary Chao, Senior Planner:
• Prior to this meeting and I think actually one of the attachments to the last staff report, around
January prior to the first Planning Commission meeting, we sent out a city notification to
everyone west of the Union Pacific Railroad Tracks informing them that there was going to be
an item that the Planning Commission and City Council would consider with regards to the
15% R1 hillside standards. In addition to that, around the same time, shortly after we posted a
bulletin on the city website. Many people were referred to the website when they called for
additional information.
• Said that feedback was mixed; some people were pleased, some people didn't realize there was
an overlay that was a result of the 2005 R1 ordinance; many were pleased to hear that there
were some additional assurance of hillside protection on some of the R1 lots, but on the other
hand, there are some property owners who are concerned with the overlay. Some were
concerned with the applicability of that, and what that means in terms of future additions and
redevelopment of their properties. It has been a mixed bag of input.
Steve Piasecki:
• In response to Vice Chair Chien's question about the Council's vote at a previous meeting, he
said he understood that the Council kept the R1 zoning, and the zoning is staying R1, they
changed the threshold. They moved it from 30% slope down to 15% slope.
Vice Chair Chien:
• Asked if it was staff's understanding that the Council's decision and intent was to keep the
development standards of these lots at R1.
Cupertino Planning Commission
Steve Piasecki:
March 13, 2007
No, the development standards above 15% would be the RHS, the site development standards,
but the potential for subdivision would stay within the R1. They don't require that any new
subdivision request would have to comply with the RHS ordinance; they specifically left it at
R1 and said if it was an acre and in a R1-20 designated area, you could conceivably get two
lots in that acre if it is well designed and works well. If you were in the RHS, you would have
to do a slope density analysis and find out what your minimum lot size is based on your
average slope over the entire acre, and you may not get two lots. They left the subdivision
potential alone, but said they required compliance with all of the other site development
standards related to creating house size, retaining walls and all of the other stuff, setbacks that
are in the RHS, whichever is more restrictive.
Referred to a map, and illustrated an area zoned RHS; and stated that when Council recognized
that there were some exceptions, some areas were still zoned R1, and they were allowed to
have much greater house sizes and different standards than all of the other properties in the
designated green area. They also have expressed concern about the hillside protection which
resulted in the issue of lowering the threshold. It is like treatment for all the other properties
that have had to live with all the RHS standards including subdivision requirements.
Com. Kaneda:
• Are the standards based on the fact that they are on a hillside and there are issues with
protecting the hillside?
Steve Piasecki:
Predominantly environmentally related to the house size, grading, retain the bigger houses
need bigger retaining walls; the real simple analysis is if you had a 20,000 square foot parcel
and are zoned R1, and if you don't have this threshold of 15%, let's say your lot is 20% slope,
you could build a 45% built FAR which would mean a 9,000 square foot house on that 20,000
square foot lot, and in fact we have had a few that have done that; and we recognize that, we
work with the applicants, we tried to get the best we could but they were still large homes and
took a lot of effort.
Com. Kaneda:
• Asked how they arrived at 15%, as opposed to 10% or 20%.
Gary Chao:
• The General Plan states that hillside protection is something that the city is focused on and
there is an index or appendix in the General Plan that talks about different slopes of properties,
specifically relating to hillsides, and according to the General Plan, this is the reason why
Council selected the 15%. The trigger point was that according to the General Plan minimum
slope problems start to occur at 15% or greater. That is where you start to get into more of
cuts and grading activities, retaining walls, heights of retaining walls, the necessity of retaining
walls, and placement of building come into play; it gets more complicated.
Com. Kaneda:
• Is there a limit to not building on slopes over 30%?
Steve Piaseclci:
There is a limitation in the ordinance that houses that are on 30% or greater, they need an
exception from the ordinance; it is just a procedural process that allows staff to focus closer on
how to make that work. In some cases it works fine; you may step down the hill; you may
build the house into the hill; you may do a lot of things, but you get greater scrutiny.
Cupertino Planning Commission 10 March 13, 2007
Chair Giefer:
• In the staff report you talked about the cut and fill and need for retaining walls. Which is
better for the hills in terms of building, the R1 or the RHS in terms of cut and fill and the use
of retaining walls.
Gary Chao:
• In the R1 ordinance prior to the 15%, there weren't any limits in terms of cut and fill; there
were no guidelines. It is only in the RHS ordinance that talks about master grading quantities,
having professional landscapers to do the landscaping plan to deal with the drainage and the
runoff and also the slope stability of the site. The RHS ordinance would address it better.
Steve Piaseclu:
• Said to keep in mind in the previous ordinance, if you exceeded 30% or greater, the RHS
would kick in; when you get into those steeper slopes, you still have all the protections of the
RHS. The only debate is 15% or 30% or something in between, or go back to 30%. There is
flexibility in both ordinances for additions to homes; it is just we won't get a 9,000 square foot
on a 20,000 square foot parcel under the RHS if you have a sloped lot, which most of these are.
Chair Giefer:
• What is the average size home in the R1 15% overlay creekside? (Staff response: It is likely
2,200 to 2,400 square feet range found in the sampling.
• Asked if the topography is equivalent to the example, did staff believe those residents have
some FAR left if they want to add on or redevelop their parcels?
Steve Piasecki:
• The lower 2,000 square feet could go up to 4,100, almost doubling even under the RHS. The
slope in this case is 17%, I think the other example we looked at; this is a 25% average slope
and you get a reduction; of course the lot size is smaller, only 10,000 square feet; but you get
to go from 2,700 or if there was the other example, a little over 2,000 up to 3,400; so you still
have some flexibility; but you have less as the slope gets steeper. In this case, Com. Miller's
point is well taken because you can see where the home is built; it is on the lower flat area that
has been created and the back of the lot you can see where the slope is back here.
Chair Giefer:
• If I am in an R1 lot with a 15% overlay and I am affected by that, does that mean that I also
have the seasonal building where I am not permitted to go in and cut and fill after November
for hillside preservation.
Steve Piasecki:
• Said he understood if it is in the RHS, it applied to both; staff will look into the issue.
Chair Giefer:
• Because it would be whichever is more stringent; is that correct.
Steve Piasecki:
• If you leave it at the 15% rule that is currently in place, that is correct; or if you change it to
30%, it would be less; depending on what you are at; what the slope of the properly is.
Chair Giefer:
• What was the reason for adding it to the RHS?
Cupertino Planning Commission 11 March 13, 2007
Steve Piasecki:
• The concern is, as the slope of the property increases, our hillsides we have fault lines, we have
ancient landslides, that you get into more potential land instability with slopes. If people are
disturbing the property, and you have a lot of rain, you will load the hillside up and I am sure
you will hear again. We have had some slides back at the south side of Lindy Lane in the past
that took one house.
Chair Giefer opened the meeting for public comment.
John James, Lindy Lane:
• Said he understood the City Council requested that the Planning Commission address the R1
15% hillside zoning at this time, not creekside zoning. He said in his opinion, the creekside
issue should be part of another meeting.
• Requested that the Planning Commission keep the rural setting of North Lindy Lane, preserve
and protect the hills of Cupertino. If the overlay is removed and the hillside zoning becomes a
pure flat R1, a landowner could build at 9,000 square foot house on a one-half acre lot for 45%
of the lot size. Showed an aerial photo of the largest house in Cupertino, approximately
12,000 square feet; another building site would probably be in the area of those trees on the
steep hillside, but only if the overlay is removed.
• Showed a photo of the Sun lower building site off Lindy Lane; the owner has a preliminary
approval to build a 3,200 square foot house not including a lower third level garage. How
would a huge house fit; how big would the new required retaining walls have to be to hold up
their hillside?
• Showed a photo of a narrow path of the driveway into the Sun lot; and asked where would the
larger house fit; you would have to dig into the side of the hill and put a huge retaining wall to
hold the earth back and probably one along the road because you would have to lower the lot
in order to be able to get the hillside in. He illustrated where the Knopp building site was and
the trees they are trying to protect.
Julia James, Lindy Lane:
• Asked for an explanation of Com. Wong's comment at one of the meetings stating that he
knew they made a mistake by zoning these hills R1; it should be RHS. She said the city is
inconsistent; R1 on the north side of Lindy Lane and RHS on the other side.
• Please keep the 15% slope in place then we can all feel like we want and just as Mayor Kwok
said at the 2005 meeting; please keep our hillsides with our beautiful trees safe from
destruction, with houses taking the place of trees and a lot more retaining walls.
Tim Maslyn, Cupertino resident:
• Said when he purchased his home in February 2005, he was given the R1 ordinance and did
not recall seeing the 15% overlay mentioned. He said it was confusing to have his lot R1 with
two different regulations to follow.
• There has been focus on the size of the house; my proposed home is approximately 3,000
square feet including the garage, which is under the maximum. The size of the house isn't one
of the bigger points to me; to me it is on page 5 down at the bottom where it says "both the
properties shown will have to have adjustments to their side elevations and in the front" so
what I am going to end up doing is building a hillside look to the front and I am also now
facing redesign of a proposal. Actually my house I think is in the planning stage, although it
wasn't shown up there, so I don't mean to speak to a specific situation, but I am near the
creekside. I have been delayed since I turned it in January. I am facing a delay and possible
costs to redesign.
Cupertino Planning Commission 12 March 13, 2007
My lot is flat, and I think Com. Miller had a good point; where I am building is primarily
going to be flat and I don't see my house being on a hillside; I know we are trying to protect
hillsides, but I am down near the creek, I just happen to have a large slope down near the back
and in the front and I have a lot of large flat area. That is where I was planning on building
and staying within the boundaries. However, due to this regulation, I am now going to have to
redesign and have a design I am not pleased with. I ask that you consider this.
Barry Pangrle, Lindy Lane:
• Asked if the intent of the measure was to preserve the hillside, he did not know how it could be
accomplished. Everything that is at a significant slope is already 12HS, hence taking lots that
were already deemed earlier, to a different state than they were purchased is extremely unfair
to the owners.
• He said when he purchased the home in 1996 they looked in a number of places in Cupertino
and at that time had an option of either going into an area which would have had smaller lots,
with an extremely large house on it, and for about the same amount of money decided to move
into the area on Lindy Lane with a nice view and larger lot and older home. The real estate
agent said that the value was in the property, not the house. Now he is being told that the value
of his property is going to be reduced because of what seems to be a fairly arbitrary decision
being made.
• He encouraged people to drive down Lindy Lane; even the large house that was shown is
really not obtrusive. I regularly go up and down the hill and watched the house being
constructed, if you drive around there, you can see the house, but it doesn't look nearly as big
as it does from the aerial view; I think it is quite tastefully done and I think it adds to the view
of the neighborhood.
• Encouraged the Planning Commission to consider going back to the original pre-January 2005
state for those properties.
Sue Moore, Lindy Lane:
• Said whatever the decision, the Planning Commission should consider the retaining walls,
because if they are needed in order to expand or build big houses, it impacts the area.
• Showed photos of the retaining walls and said that the hills on the other side where some parts
are steep, some parts aren't; but if you are going to build big houses, it would need more
retaining walls and it is not in keeping with the rural atmosphere; it does have a great impact.
Marie Lin, Mt. Crest Place:
• Opposes the application.
• Asked that the ordinance be removed for 15% slope overlay on top of the R1 ordinance. She
said she could see in her area all the newer buildings that have great foundations because of the
new building code and because of improvement of signs and building. It is much more sturdy
than before; the piers are much deeper and the house itself serves as a retaining wall for the
hill; the house is supporting the hill and will reduce the sliding.
• She said although she did not have any major planning for the near future, she was pleased to
see the well built new houses with the deep, sturdy foundations.
• Said she felt removing the 15% slope density would be a good idea because it helps to stabilize
the hill.
Doug Knirck, Mt. Crest Drive:
• Expressed concern about the devaluation potential with the new ordinance.
Cupertino Planning Commission 13 March 13, 2007
James Hall, Santa Theresa Drive:
• My front access is on the 10% line; in the back of my property, if you were to stand there, you
would be about 80 foot over my roofline, so I have a very steep slope if you count my entire
property which makes no sense, and the person who built this house didn't use the old
property, he used about the forward third. I think the average slope is a very poor metric in
this case. I have one retaining wall that does not extend across the entire property; it is thigh
high, retaining walls have not been an issue. I have not had any flooding in 30+ years.
• Asked if he would be able to rebuild and recreate his present home. He noted that his lot was
narrow in the front with some distance between the neighbors, and not far from the street.
Anita Shew, Mt. Crest Place:
• Said when she purchased her home in 2004, there was already a retaining wall there; the
purpose of the retaining wall was not to build a large house, but to retain the soil to prevent
landslides. She said with the 15% overlay, it would decrease the value of her property.
• She requested that the ordinance be put back to the R1 ordinance to protect the value of her
property.
Candan Taysi, Lindy Lane:
• Urged the Planning Commission to keep the 15% threshold on the hillside. She said she was
concerned mostly for the hillside; without that 15% threshold, people are going to be able to
build bigger homes and she was not as concerned about bigger homes as much as about the
retaining walls. She said so far the area has been destroyed and going forward if people were
allowed to continue that and build bigger homes and building all these retaining walls to hold
the homes, the rural area of Cupertino would be lost.
Charlie Taysi, Lindy Lane:
• There are two groups of people here; one group is trying to protect the hillsides and the other
are trying to protect their income portfolio. He said his priority was to keep the hillside
beautiful for all the Cupertino residents.
• The flat land and hillside are different; if you put a building in here (illustrated location on
map), you don't have to put all the retaining walls and concrete, and you are not going to
destroy any of the views; but if you put big large homes in that area, you will change the looks
of the hillside.
• She said it was up to the Planning Commission to decide how much they want to destroy the
hillside.
Viktor Sinzig, Terrace Drive:
• He said they were told that the value of his property was going to decrease and he felt it was
unfair. They signed a petition two years ago and have not received much information since
then; they just learned about the issue and don't believe their property should be devalued.
Ron Berti, Lindy Place:
• Opposes the application.
• The resolution that occurred at the meeting in 2005 was that the people who owned those
properties would be allowed to subdivide by the R1 ordinances, but in other aspects would be
asked to support RHS, meaning the major impact is on the size of the floor plan and on the
setbacks. It was meant to be a compromise.
• When my home was built in the 70s, I don't think RHS existed and whenever the city imposed
RHS on my property, that is what the city did, out of a sense of trying to protect the hills. This
little notch somehow escaped and was incorrectly treated as R1; that is fine. The big fight two
years ago was, we will treat it as R1, but we will impose the RHS as an overlay; that is what
Cupertino Planning Commission 14 March 13, 2007
we were told when we lost that fight. We were told not to worry about it, the RHS is going to
apply at least to the footprint of the home and to the setbacks; so they can subdivide in Rl, but
the other ordinances will apply.
There has been an explosion of activity in that area since then; there are now three building
lots that have been preauthorized subdivisions, therefore the number of homes on a private
driveway will go from about 6 to about 12.
We are going to see a lot of development on that street; the restrictions are at the margin, they
are consistent with the rest of the town and the way that the RHS is employed in the rest of the
town; they are appropriate and they are reasonable. There is no reason to restrict this; the 15%
is not an arbitrary number; I am advised it is imposed because that is the slope that a fire truck
can get up the hill. To me, it makes sense to do this; this is hardly a taking in the sense of
eminent domain.
Vice Chair Chien:
• Asked Mr. Berti to share his recollection of the 2005 meeting; as he said it was a compromise
to have it subdivided based on R1 standards and then development standards using RHS.
Ron Berti:
Said his understanding was that the rule in the city is that because this area is zoned R1, the
subdivision would be handled under R1 ordinances, but because it is a 15% slope, that was the
change that was being contested at the time; that the lower restrictive ordinances would hold.
There is a mixed environment as a way to approach justice, for a situation that is very odd to
begin with. The small triangle is very unique in the city; it should have been RHS in the
beginning; it did not turn out that way and the compromise that City Council tried to structure
was that compromise.
Chair Giefer:
• Asked Mr. Berti who lives across the canyon from the R1 zoned hillside, if he felt it was
equitable that they have greater subdivision rights he does.
Ron Berti:
Said yes, whenever the city imposed RHS on his property, it took away his right; which is
appropriate because you couldn't build on his property as it is too steep. It is too steep on
these properties as well, but the city has been aggressive about pursuing subdivisions and
further development on that hill.
He said he felt it was inappropriate, but they have monetary interest, and it has hurt him
personally because his view now is an 80 foot long retaining wall whereas it was previously a
horse in a field. He said the purpose of the Planning Commission is to try to strike a balance
and to impose the authority of a city when it makes sense in terms of protecting the hillsides.
Frank Sun, Lindy Lane:
• Said they supported protections, but to sacrifice a few is not the way to go. It is hard earned
money, whatever the value people have and that is the after tax value; it is not right by
changing the law arbitrarily and changing the value.
• Clarified that in 2005 they were told that the area was going to be rezoned and there would be
a 15% overlay. That happened without public input, without the input of this Commission, so
the members changed it here; we were told 27 properties were affected in the Lindy Lane area;
and 25 of us signed a petition that started a process.
• The Commission voted for the removal of the 15% overlay; that is the first thing that
happened. When it went to the Council, the Council discussed extensively about the 15%
overlay; all five Council members favored the removal of the overlay, but because the issue
Cupertino Planning Commission 15 March 13, 2007
was not on the agenda, they legally could not vote on it; hence the Council members did not
vote for the 15% overlay, but they did vote to stop the rezoning from Rl to hillside. There is
some confusion that Council intended to stop the rezoning, but keep the 15% overlay. All the
Council members favored removal of the overlay and stop the rezoning. Neither items were
written in the agenda, but somehow they were able to vote to stop the rezoning and the 15%
overlay was not voted even though it was discussed extensively.
He urged the Commission to remove the 15% overlay.
Harold Sinzig, Terrace Drive:
• Said he purchased his 3 bedroom home almost ten years ago and found out that he will have
restrictions in the event he rebuilds, and he was womed that there are so many restrictions that
will devalue his home. He said his property was unique, much of which is still hill, and he was
concerned about the ordinance.
• Said he heard that they had to put retaining walls in to put roads in; basically the retaining
walls are here to stay.
• He said he was concerned and recommended switching it back to the way it was.
Luciano Dalle Ore, Lindy Lane:
• Opposes the application.
• Expressed concern that when people say just put in the RHS overlay, they are really
understating that beyond just house size restrictions; there are a number of other issues that
come into play as soon as you get the RHS definitions. It is the biggest problem and that is
what people run into, because unfortunately people talk about monetary interest, but the truth
is that we would just like to be able to buy the lot. If you have to change designs multiple
times because of certain restrictions, it affects the property values.
• Rules have been imposed which were made for very large lots into very small lots. People are
concerned about what has been done with the 15% overlay, and some think that the Council
approved the RHS in the same evening and tried to rezone part of the houses RHS, and then
they put in the 15% overlay. The overlay was there previously, and there was a further push to
rezone his property and other properties into RHS, and the Council voted unanimously on it.
• Said that there was no intention to rezone on the City Council's part. He expressed frustration
at hearing the same discussions repeatedly. He said he wanted to be a good neighbor, but he
purchased property and had to pay a certain amount of money for that on the basis it was sub-
dividable and was under different rules, and suddenly changes in rules midstream is not good.
• Said there was another proposal that says we will just then apply the 15% rule to only a small
section; which says you are trying to rezone again a small portion of the stuff and not worry
about anything else.
• If people understood the impact of what it takes to do RHS, there would likely be more input
from the rest of the public.
Frank Shew, Mt. Crest Place:
• Asked that that 15% overlay be removed. My house was built in 1969 and there is no way the
plan would be approved today because it is basically a rectangular shape that goes straight up
to the second floor and the second floor cantilevers out from the first floor. I will eventually
remodel, and I suspect I will have many problems and costs in terms of getting the house
remodeled and approved the way the current plans are.
• I don't know what other people plan to do with their properties, I know that other people are
concerned about hillside protection; I just don't see how this ruling can directly affect hillside
protection. Retaining walls is a function; they have to be there; it may look ugly, what you do
is you try to distract from that; they serve an engineering function. The 15% overlay does not
Cupertino Planning Commission 16 March 13, 2007
resolve any of the issues that people are concerned about. I would prefer that you remove the
15% overlay.
Mark Santoro, Lindy Lane:
• Said it was a bad rule and has been handled poorly, with negative impacts on the people who
live there, and it should be removed. It is overwhelmingly opposed by the people who are
impacted by it.
• The 15% overlay says that if your property has an average slope of 15%, you are bound by two
sets of building requirements similar to being double zoned; if you have an average slope over
15% and it even ignores the building pad.
• This particular section of the code reads as follows: "Building proposed on properties with an
average slope .....restrictive". Who decides which is more restrictive -staff decides. In fact it
is not pick the R1 or pick the hillside, it is pick line by line each item and which one applies.
The overlay was passed without any public input; there has been a lot of stalling when the
public tried to remove it; we have been trying to remove it for two years. It is misguided,
unclear; it is unfair and can lead to abuse; it violates property owners' rights and lowers our
property values. He illustrated examples of how small a 15% slope is, house that is flat with a
slope in the backyard and samples of inconsistencies in the requirements.
• Language is confusing; it has two sets of rules; it is up to someone to determine; it is difficult
for a homeowner to read an ordinance, let alone read two and decide which is more restrictive.
Adding confusion is not good. It adds expense; does everybody have to do a survey to decide
if they have a 15% slope or not; who decides? That is what zoning is all about.
• Cupertino is going to go into a state of decay in that area because houses have a limited
lifetime; on a 15% slope it is difficult to remodel, it is expensive; people either tend to not do
it, do an inferior job or just not remodel. Our time and money are being wasted, we spent two
years trying to get this heard again after we brought it up initially. The only thing that has
been determined in the two years is that there is a lot more than the 27 properties we thought
were involved; perhaps hundreds as we have heard this evening. The impact is unknown; it
should be removed now as it is still unknown who is impacted and how.
• Reviewed the history of the issue dating back to 1993 when an attempt to rezone the area was
voted down by City Council, which occurred again in 2005. The history of the issue was also
outlined by another speaker.
• What is this about? It is not about safety in the hills. We have had civil engineers, soils
engineers come in and give talks about the fact that safe homes can be built on these slopes.
We are not arguing about slopes over 30%, we are arguing about slopes under 30%. They
have stated that the retaining walls can actually stabilize hills with proper piers and things
without being big obtrusive retaining walls; what this is about is property owners rights; and
the people who are arguing for this are those of us who are impacted by the overlay and it is
about our property values.
• Said the Fifth Amendment to the Constitution does try to protect their rights and realtors have
said that their property values are being dinged by hundreds of thousands of dollars each. He
said he did not think they were preserving the hillsides, they are being taken away.
• What are we proposing? The old Rl ordinance has a section which is actually being slightly
misquoted so let's be specific. Section C2 of the current ordinance limits houses to 500 square
feet on slopes of 30%, Rl; they have to come before the Commission to get something bigger
if they want to build over 500 square feet on a 30% slope. We have already shown how
ridiculous 15% slopes are. We want to retain our property values. Please don't take the
money out of our pockets; when we bought our land it was zoned R1, we didn't have an
overlay. We are not money grubbing asking for something that wasn't there before; we are
asking to just retain what we paid for; not for other things that have been implied. We just
want things put back the way they were when we bought our properties. We are asking for no
Cupertino Planning Commission 17 March 13, 2007
new concessions, nothing new, no rights to do anything we couldn't do before; we just want
things the way we were when we bought our property.
This Commission voted once before to suggest repealing this 15% overlay ordinance; we hope
you repeat your wise vote once again and vote the same. We are not sure why we are back
here, but hope you will vote the same way you voted last time. Please vote to remove Section
19.28 050 Section C1 of the R1 ordinance; we are suggesting leaving C2 in place which is the
30%. We also believe in protecting the hills; we are not arguing against that.
Sherry Fang, Lindy Lane:
• Said that according to the City of Cupertino community outreach bulletin, the intent of the
ordinance is to protect the hillside. She said she felt the right way to preserve the hillside
setting is to use public funds to buy private properties and turn them into parks. For example,
the City of Cupertino purchased Blackberry Farm and is making plans to turn it into a public
park; another example is the Mid Peninsula Regional Open Space District in January
purchased 238 acres of hills above Cupertino and Saratoga which will be turned into a trail
connection and recreation.
• It is wrong for Cupertino to burden property owners with two sets of building rules; it is unfair;
it is wrong for Cupertino to diminish the property values without compensation. 50% of the
residents here are Asian, Indian, Chinese heritage and it is in their culture to take care of
elderly parents; oftentimes there are three generations living under the same roof and they need
the flexibility to be able to build bigger houses. The homes that are already built there are
mostly built by people of European descent, so with this transition in the population, keep in
mind that having the flexibility to accommodate three generations under the one household is
very desirable.
• Private property rights are the foundation of American democracy. Please don't trade it in for
a cause that is good but poorly executed. Please do the right thing by deleting Section Cl.
Sara Arzeno, Lindy Lane:
• She urged the Planning Commission to please keep the 15% zoning. She pointed out that all
residents of Lindy Lane are affected, not just the hillside residents. She said that her home
used to look out on the beautiful green hills, and now has monster homes, and retaining walls
surrounding them. She said they live in a fish bowl with no privacy, and their property value
and quality of life have plummeted. There home is not the same as when they purchased it,
and who can compensate them for their losses.
• In terms of property rights, the notion that it is a one way concept is outdated; property rights
has to do with what one person does in one place affects the entire community. It is not just
one person's right to do as they wish; it affects everybody who lives in that area, who sees
what is being done.
• I also would like to say that in some other areas when you look at the map and see this
aberration of zoning in Cupertino, one might ask if this is even spot zoning. It is strange how
this has come to pass; we have come and talked to you about it for years. That is pretty much
what I would like to say; I have lived on Lindy Lane for 9 years and when we moved in, we
were told that the lots across the way could not be developed because they were hillside.
There is a misunderstanding and inappropriate decisions being made that affect all of us; but
you do not have to live on top of a hill and own expensive property to be negatively affected
by what has gone on.
• Keep the 15% zoning; that is the right thing to do!
Jennifer Griffin, Rancho Rinconada resident:
• Said they need to revisit the ordinance; land issues and zoning are very complicated and can go
on for years. There are other counties where you cannot build in some instances on building
Cupertino Planning Commission 18 March 13, 2007
pads because you have no water; there are lotteries to try to get sewer permits, and people wait
years to get water permits. Cupertino is blessed with lots of water and beautiful hillsides.
Said she was not certain what the sewer problems are but if building more up there, they may
have potential problems. It is up to the city to try to protect the hillsides and the health of the
residents of Cupertino; it is an area subject to earthquakes, and tremendous impact from water
damage on hillsides. It is up to the city to protect everyone, and the city is trying to make sure
that the hillsides are protected for the inhabitants; how we go about this is a long process.
When you buy real estate it is a gamble; she said she hoped the city would retain the 15% and
make sure that the hills are safe.
Ron Berti, speaking on behalf of Humbarto Arzeno:
• Some local cities don't have any regulations about this; they leave it up to the Planning
Commission and to staff in those cities to make the judgments on a case-by-case basis.
Cupertino tried to do by putting rules on the books and now there is a contention about it.
• He said he predicted after hearing people speak tonight that adjustments might be called for in
the policy. He said that the average slope probably isn't the best way to measure the slope of
the lot and if there is a big enough pad or there is a flat spot in the property, there may be some
other measurement. Remodelers should be protected in some way or another; my concern is
new subdivisions; on the north side of Lindy, we are going from 6 homes to about 12, all being
done on fairly small lots with rather large homes.
• He said this will be the measure of the performance of the Planning Commission. If those
properties are treated like R1 and there is no further restriction, the small restrictions of RHS
and it is treated as if it were flat property, he said he would be forced to believe that the
Planning Commission is incapable of seeing a hill when it is in front of them.
Chair Giefer noted that a letter was submitted from from Shavir and Monera Nomanhoi saying
they wanted to have the 15% grading removed.
Chair Giefer closed the public hearing.
Chair Giefer asked staff to respond to speakers' questions:
• RHS and R1 -why are they not comparable. R1 15% overlay -why don't we just go for RHS
and make them completely compatible.
Steve Piasecki:
Said it was not the question before the Commission tonight, but is one option the City Council
could have chosen, to rezone the entire area to RHS.
A speaker raised the point that there was a compromise struck; we won't see even going to an
RHS, so that you will retain subdivision rights but you will have to design and develop the
homes under the RHS standards if you are above the previously 30%, now 15%. He said there
was some validity to that comment.
Chair Giefer:
Asked if it would require a General Plan change to rezone the current Rl with 15% overlay to
RHS.
Steve Piasecki:
• Said he would look into it; if it was required, it would be a procedural process and a job plan
amendment and a zoning change would be needed.
Cupertino Planning Commission 19 March 13, 2007
Chair Giefer:
• Said there appeared to be some confusion whether they were changing zoning or just looking
at the overlay.
Steve Piaseclci:
Said the Planning Commission was just looking at the overlay issue; it was mentioned in the
staff report and by some speakers that there wasn't a lot of discussion about it. He said there
was some validity to that perception and the Council directed that the Commission revisit it.
He said there had been only two cases presented in conceptual form and one of the speakers
spoke tonight. This is an opportunity tonight to change it back, keep it, or to find some other
way of doing it. There were many comments that some of the edge properties at the base of
the foothills; had developed on flatter portions which goes back to the question if you want to
include them or not include them; you could make a judgment that they have already built on a
predominantly flat portion; there is not a lot of opportunity to climb the hill, but there is an
order of magnitude difference. As the Commission is aware between 45% on a 20,000 square
foot lot vs. 45% on a 10,000 square foot lot; it is a much bigger deal.
Addressed speakers from Mt. Crest Place who referred to a map of Mt. Crest place and stated
that those properties are not the subject of whether they retain the 15% or not, they are in a
different zone all together; there are a few properties that probably take their address off of Mt.
Crest Place.
Clarified that the Planning Commission is not considering the rezoning of that agricultural
designation; the only issue is under the R1 ordinance, do you keep the 15% threshold or do
you go back to 30% or something in between. The topic of the zoning of the agricultural zones
on the Mt. Crest property and the one property in the middle is not before the Planning
Commission tonight.
Question:
• If the speaker's house was demolished, which ordinance would he have to build under; he is
R1-15 now.
Steve Piasecki:
There is an ordinance in the Municipal Code addressing legal non-conforming uses in legal
non-conforming buildings. If his house was destroyed, the ordinance states you can rebuild it
as it was. If he wanted to change it, depending on what you decide and City Council decides,
he would come under the RHS if he is above 15% slope.
You don't need an as-built plan to determine, you can redetermine, based on the remaining
foundation, and photos, what existed previously. We also have some county records. We
would honor that and follow the rules.
Clarified what the Council voted on at a previous meeting. Said that the Council was aware of
that they were voting on; when they do an ordinance change, they have a first reading of the
ordinance, a second reading and if there is any confusion, it would have been pointed out and
they very clearly wanted to go this way to protect the hillsides. He said he recalled their
comments and them electing to do so. He pointed out that not many people were attending the
meetings at that point, and possibly could have missed something.
Chair Giefer:
• If you are building a home in R1 15% overlay lot, it was not clear if you had to meet the RHS
or the R1; there was the feeling that you had to meet both those ordinances.
Cupertino Planning Commission 20 March 13, 2007
Steve Piaseclci:
• It says whichever is the more restrictive; there is really only a limited area that staff has
identified in some of your exhibits that show you where the R1 is more restrictive; otherwise
RHS clearly is in all circumstances. You could try to address some of that wording, make it
just RHS or something to simplify it.
Chair Giefer:
There was also a comment made that RHS lots were substantially larger than R1 lots, and on a
recent subdivision on Rainbow Drive, there were numerous RHS lots as small as 10,000
square feet.
Steve Piasecki:
• Said he would look into why those were so zoned. He said if it was a perfectly flat lot, he
could understand why that might have occurred; otherwise, it was not very likely.
• Said that building a house on a slope can reinforce a slope; some instances are used where the
foundation of a house is to retain a hill and foundations have been used for that purpose, as
opposed to creating more retaining walls if they can be buried behind the houses. It is a
function of the site characteristics and the design of the home.
Vice Chair Chien:
Relative to subdivisions, what is the difference between a subdivision under the RHS
jurisdiction vs. the R1 jurisdiction.
Steve Piasecki:
The slide shows most of the zoning in the Lindy Lane, north of Lindy Lane areas R1-20, so
you have 20,000 square foot, roughly one-half acre minimum lots sizes. Under the RHS
district, you will see (illustrated on map) varying numbers, RHS 15, 40, 21, 40. What
happened in those instances is the property owner prior to the subdivision had to document
what the slope was and then apply a slope density formula; the slope of the land relative to the
allowable density and then they zoned it to the appropriate minimum lot size under the RHS
based on that slope. The one off Regnart Court is relatively flatter than the obviously RHS
which is about an acre minimum lot size. If you drive up there you will see that it is very
graphic. There is a different approach to allowing and determining the minimum lot size and
the RHS is based on the slope, in the R1-20 it is a matter of right that you can apply for a
20,000 square foot lot no matter what your slope is. However, you still have to design it so
that it fits in well, so it can still be denied. The RHS is more restrictive.
Com. Wong:
• There was concern about the Moxy property and the Knopp property could be a potential also.
Obviously these property owners went through the process and they got approval for
subdivision. Did they legally subdivide it and why did staff feel comfortable subdividing these
properties, now that the concerns of the people on the southside see these larger homes on the
other side, and not see apark-like setting like they used to see.
Steve Piasecki:
• You have pointed to two of the subdivisions that have occurred and have raised issues and
questions; Dr. Sun's property was another one that had come before the Council; I believe
portions of some, if not all his are above the 30%.
• Said that staff was not necessarily comfortable about subdividing in the hillsides; it is always a
task especially when the allowable houses are fairly large. Staff worked as best they could
with the property owners to make things work, save trees, minimize cuts and there was a lot of
Cupertino Planning Commission 21 March 13, 2007
concern from the neighbors about drainage, mud coming down that private road and other
issues. People were concerned about Mr. Santoro's house; the retaining walls and the slope
behind some of the homes. There are a number of issues.
Clarified that it was not unusual in the hills; it doesn't matter whether you are under RIIS or
R1; there are a lot of concerns with what happens with hillside lots. It is a relatively unstable
area and that is why the hills are there.
Com. Wong:
• Asked what process was followed for them to be subdivided.
Steve Piasecki:
• They followed the rules in place at the time for subdivision and those are not being debated
tonight, and with the two houses that have occurred in the last two years, staff is working with
them to make sure they follow the RHS development standards rules.
• There is not a lot of subdivision potential; which is why subdivision isn't the substantive issue;
it is more how you develop what you subdivide.
Com. Wong:
• He said he felt they should move forward to make a decision since the issue could drag on for
a long period. He expressed concern about the comments from residents stating they lived on
north side of Lindy and and some on the south side of Lindy Lane, but it was important to
remember that the residents on both sides are part of the Cupertino community. He said
everyone is entitled to their opinion, but he was disappointed to see neighbors pitting against
each other. Applied citywide, it affects the hillsides as well as the creekside residents.
• I visited the Maslyn property and it is a very flat building pad, but because of his back yard
being very steep, he is adversely impacted by this rule. Some folks did buy property here
based on previous owning and they are taking a risk by buying that property, paying a
premium price, expecting rights to build in the future. I can understand their concerns that their
expectation by paying a premium, they expect some expectations, but the rules can be
changed. For folks who have lived here for many years who enjoyed the parklike setting across
the street, as the city grows, we want to protect our hillsides, but also our city is growing and
we also want to respect their property rights. I understand we can find ways to protect the
hillsides, but how can we balance the property owners' rights when they buy their property?
• It is a difficult decision that I feel that the 15% should be struck and reversed back. I feel
strongly about that and that is because of the value of the property. There are ways to protect
the hillside, RHS does a very good job in doing that. I think that there have been many
attempts, many public hearings prior to trying to rezone it, and it was done through a due
process, and I think that by repeating itself, a lot of people feel very frustrated and it
disappoints me to see both sides coming here back and forth, back and forth.
• Supported recommending to the City Council to strike the 15% and go back to the 30%.
Com. Kaneda:
• Asked staff to clarify that the ordinance is on the books, yet there was mention in 2005 that the
Planning Commission voted the ordinance down.
Steve Piasecld:
• The issue of what do we do with what the people have called an anomaly is something we have
raised because we are very much aware of it. The Commission at the time said no, we will
leave it the way it is; when that issue was then brought to the City Council, they said they
would like to incorporate a 15% rule because of their concerns about the hillsides. The 30%
threshold was the way it was, and that is what the Commission position was and that is how it
Cupertino Planning Commission 22 March 13, 2007
went to City Council with the Commission's recommendation to leave it at 30%. When the
Council received it, they were concerned about hillside protection; we had had one or two of
the subdivisions occurring and some of the development happening and neighbors' concerns; it
was brought to the forefront. The Council decided they wanted to go with lowering the
threshold and that is what they decided. The issue came up with how much discussion did that
get, were people really aware of it, and that is why we are back. The 15% change happened
two years ago and is the rule on the books now.
Com. Miller:
• Relative to comments made from speakers, regarding retaining walls, there are ways to adjust
for the retaining walls. As staff mentioned we can insist that perhaps they step their buildings;
there is also some creative retaining walls that you can't tell it is a retaining wall, it just looks
like vegetation, and there are some examples in the city of that. Someone else commented that
there were very few retaining walls that were over three feet.
• What has been imposed is not a good solution. It is unfair and confusing to be judged under
two ordinances and to have to decide as a property owner, which of the ordinances is
appropriately applied to their property. It is a nightmare for anyone attempting to remodel and
that seemed to affect the properties on the north and south sides.
• Recalled that previously, the City Council voted 5-0 to remove the 15%; however staff
clarified that the item was not agendized and they could not vote.
• I think if we were going to do something there, it would be better and clearer to rezone it
hillside; but that is not what we are here for tonight. We are here only to consider whether this
particular piece of code is reasonable or not, and my concern is, it is not reasonable and has
unintended consequences which we haven't fully studied and can affect far more properties
than we are talking about here tonight on Lindy Lane. As such I would recommend removing
that for those specific reasons but would be willing to bring this application back again as a
rezoning, and to consider it that way, as opposed to this very confusing proposal.
Chair Giefer:
• Said the key issue for her on the overlay or rezoning has always been equality between people
who live on hillsides. There is a small niche in Cupertino zoned R1 and the opposing hill, or
the other side of the canyon is zoned RHS. The right side is a hill, the left side is a hill, but
they are not equal; the owners of both pieces of property don't share the same rights for
owning properties with similar characteristics. When Council voted and approved this, it was
for hillside protection, not creekside protection. The creek was an unintended catchall as part
of this ordinance and Council always talked about it as hillside protection. Most of the creek
watershed is already built out in terms of having homes in it, so there is not a lot of subdivision
potential and other things, so I think that should not actually be part of this discussion because
I think Council enacted us to specifically to protect hillsides several years ago.
• Said they were not denying anyone's property rights; they have the right to subdivide, either as
RHS or as R1. There is the opportunity to build, rebuild and remodel their home just as
anyone else in the community. If you need to build a larger home or you need an exception,
you have the mechanism to do that today. She said everyone enjoys property rights, it is
equality in her mind on how the different types of property with the same characteristics are
treated.
• She said that property values in the Mt. Crest area have not declined as some people stated.
She noted that in the 20 years she has resided, her property value has not declined.
• Relative to public input, we have heard from many people and many are those who spoke two
years ago. Probably the Mt. Crest homeowners are surprised to learn that this does not apply
to them because they are in agricultural; so I think there is a lot of uncertainty in terms of
Cupertino Planning Commission 23 March 13, 2007
where you live, how your property is zoned and if this applies to you. I believe the Council's
intention was to look at the hillside above the 10% line, not the creekside.
Vice Chair Chien:
Said he has been a Planning Commission for only 13 months and was not a Commissioner
when the Commission made its last decision. He said he has been apro-property rights activist
for many years and understood and sympathized with the speakers about property rights and
privacy rights.
Said it was a difficult decision and there was lack of data available, the Council instituted this
hillside protection in our last General Plan Amendment, yet I have also heard that when they
try to vote to re-appeal the 15% overlay they weren't given the opportunity to do so. So my
comments now are more addressed to my colleagues. I would be comfortable if we actually
found out what the intent of our Council is and perhaps my colleagues can enlighten me on
that. But I cannot move forward until I know what our Council has advised as this is one of
those rare cases where a decision has been made and now were coming back and being asked
to look at it again and in the past I believe that if a Council has made a decision we have
actually even deferred back to them to for clarification. I'm not sure if that's certainly one
option we can proceed with but there's certainly a discrepancy in what I am hearing tonight.
Steve Piasecki:
• Explained that the issue came up to the City Council shortly after they adopted the change.
They were looking for an opportunity to stop the presses which wasn't an advertised action
and rehear the issue and give people the opportunity then to start talking to it. They could not
vote on the issue because it was not advertised, and the Council wanted to revisit it.
• He said because the issue has been followed for such a long time, it would be advantageous to
have some agreement, disagreement or consensus to move forward and avoid people having to
live with the uncertainty.
Com. Miller:
• Said that the City Council sent the issue back to the Planning Commission for their input
before they could revote. He said he felt it was incumbent upon the Planning Commission to
provide that input, make a decision and move forward.
Com. Wong:
• Reiterated that when the issue went to City Council there was some confusion and they wanted
to give the public a second chance. Another public hearing was held so that the public could
offer more input. He said with five commissioners present, he would like to have the
Commission make a decision and forward a recommendation to City Council.
Chair Giefer:
She said as an option they could recommend to the Council that they move forward on the
rezoning if they felt that is more equitable; it doesn't have to be only if they felt it is a hillside
issue as opposed to a creekside or something else.
Vice Chair Chien:
• Said that the creek issue is irrelevant; and that the intent of the Council seems to be to protect
the hillside and therefore they should not be considering the creekside properties along Stevens
Creek Corridor; therefore it is a non-issue to him.
• Said he appreciated his colleagues' comments. He said if the Council's intention was to
protect the hillside, the rule they instituted did a poor job of it; they should have technical
Cupertino Planning Commission 24 March 13, 2007
reports, civil reports and soil reports in order to seriously consider protecting the hillsides. He
said limiting the size does not accomplish that.
He recommended to the Council that if they are serious about protecting the hillsides, they
consider rezoning the entire area instead of having the 15% overlay.
Com. Kaneda:
• Said he was the newest Commissioner and felt he did not have enough information to make a
decision.
Cbair Giefer:
Summarized that they were deadlocked on another issue; and said she would support
recommendation of rezoning to move for RHS which is her original position on the issue.
Com. Miller:
• Said it was presently his position and they were voting on whether or not to keep or remove the
15%.
Chair Giefer:
• Said the staff report indicates that they could also move forward with recommending rezoning.
Motion: Motion by Com. Wong, second by Com. Miller, to move Ordinance 19.28.050
to strike Section 1, Paragraph 1. (Revert to 30%).
Com. Wong:
• Pointed out that they could entertain more recommendation to the Council.
Chair Giefer:
• Commented relative to Com. Wong's recommendation to remove the 15%, that if the slope is
greater than 15% and they sent something that later on we would look at a zoning change, it
would be a disservice to half the people in the audience and others.
Com. Wong:
• Said the intention on his motion is that based on what staff agendized tonight is that the 15% is
an overlay on the whole city of Cupertino, no difference from the creekside to the hillside.
The ordinance says that there is a 15% overlay on the whole city of Cupertino.
Steve Piasecki:
• That is currently how it is worded. It does not make it a territorial discrimination one way or
another; it applies to citywide.
Amended Motion: Motion by Com. Wong, second by Com. Miller, to move Ordinance
19.28.050 Section 2 Paragraphs 1, Change 15% to 30% which was the
origina12005 intent. (Vote: 3-1-1; Chair Giefer voted No; Com. Kaneda
abstained.)
Com. Wong:
• Clarified that they made a recommendation to the City Council because they are not a decision
making body.
Cupertino Planning Commission 25 March 13, 2007
Steve Piasecki:
• Said the Planning Commission is recommending to go back to the 30% as the threshold for
when the l RHS standards apply to any lot within the city. It will go back to City Council,
and has to be advertised, and won't be the next meeting, but the following meeting.
Com. Miller:
• Said he would vote against it, and clarified his concern about the wording and the unintended
consequences of the 15% overlay.
• Said he was still open to other solutions, but I did not feel that the one in place was fair,
equitable, or appropriate for the city.
Chair Giefer:
• Noted for the record that by removing the 15% prior to acting on any other types of hillside
protection, she agreed with Com. Miller that they will have some unintended consequences of
that language; however she felt they were removing any hillside protection that they have
currently for the R1 Lots and she said she was uncomfortable removing that prior to having a
substitute.
Steve Piasecki:
• Said that the recommendation will go on to the City Council at their first meeting in April. He
suggested that people go to the website where it will be noticed and continue to monitor it.
Interested parties may also contact staff member Gary Chao.
Chair Giefer declared a recess.
3. MCA-2006-02 Municipal Code Amendment of Chapter 14.18 (Heritage and
City of Cupertino Specimen Trees) Continued from January 23, 2007 Planning
Citywide Location Commission meeting. Tentative City Council date:
April 10, 2007.
Aki Honda Snelling, Senior Planner, presented the staff report:
• Reported that at the February 27`" meeting, the Planning Commission met and discussed the
tree ordinance but at that time was unable to reach consensus on the tree ordinance since the
full Planning Commission was not available at that date and continued the meeting. The five
particular sections that the Commission focused on and could not reach consensus were;
specimen tree list, the rear yard versus front yard tree removal, in-lieu fees, tree management
plan and the replacement trees.
• She reviewed the Planning Commission considerations and alternatives on each issue as
outlined in the staff report.
• Staff recommends that the Planning Commission recommend the City Council approve the
staff recommended draft ordinance and also recommend approval of establishing the tiered tree
removal, the retroactive tree removal tree management plan and the in-lieu fees as well.
Com. Wong:
• Asked staff why they did not feel comfortable making a recommendation to the Planning
Commission so that they could look at it.
Aki Snelling:
• She said there were so many diverse ideas and the city attorney thought it would best if there
was a subcommittee formed. Staff was looking for some ideas from the Planning Commission
on how to formulate the criteria.
Cupertino Planning Commission 26 March 13, 2007
• The city attorney suggested having a subcommittee to come up with different criteria for the
use of in-lieu fees.
• Said that if the Planning Commission chose not to form a subcommittee, staff could present
some ideas.
Steve Piasecki:
• Suggested the approach to state an in-lieu fee structure be established and some rules be
established on how the money would be allocated to purchasing and installing trees in the city
and to be developed later.
Com. Wong:
• Said the concern was that one of the reasons why the other Commissioners wanted to continue
it was that staff was going to present some type of minimal in-lieu fee to get an idea of what it
would look like if they made a recommendation.
Steve Piasecki:
Suggested it be handled as a side bar to state that they need to develop it further. If you feel
that there should be such a process to provide more flexibility where trees cannot be
accommodated we will handle it as a side issue and it needs a little more work and we are not
ready to give you that strong recommendation on what that might look like. The city attorney
suggested a committee that the Commission could focus on and come up with a
recommendation to the full Commission, which would then go the City Council. It is a way to
work the issue, and is separate from what is being considered tonight.
Com. Wong:
• Asked staff to clarify why they were supportive of the other Commissioners comments.
Aki Snelling:
• Clarified that staff did not make a recommendation on that; but is recommending what the city
arborist had recommended which is in the last staff report. Staff is not making a
recommendation based upon the vote that the Commission made last time.
Steve Piasecki:
• Staff feels they are reasonable ones that will provide for good replacement overall and are
based upon an expert's opinion.
Com. Wong:
• Asked if they were market rate prices vs. the arborists' prices.
Aki Snelling:
• They are based just on the purchase price; what staff had recommended before was that rather
than using the ISA guidelines to appraise the trees, to write a more reasonable fee would be to
use a tree replacement and installation cost of replacement trees.
Com. Miller:
• Said that it appeared one of the main reasons why the in-lieu fee is being proposed is because
of the arborist and staff's support of the arborist recommendation that in some instances a
single tree being taken out, be replaced by multiple trees. If that was not the case than an in-
lieu fee would not be needed at all.
• Said he was reverting back to see where there are reasons and circumstances where that might
make sense, particularly in new developments but when it comes to a single family home on an
Cupertino Planning Commission 27 March 13, 2007
average lot in Cupertino of 6000 or 7000 sq. feet and that home owner loses a single tree. I am
not sure what the justification is for replacing it with as many as eight new trees. He asked
staff to address that.
Steve Piasecki:
• The only justification is one of equity. If you are going to require that of anon-residential
property owner we should apply that equally to a residential property owner. You can make
whatever recommendation you feel is appropriate and you can talk about one-for-one.
Com. Miller:
• Said he was referring to new development, not non-residential property owner.
Steve Piaseclci:
• Are you saying it does not matter if it isnon-residential or not?
Com. Miller:
I did say that it is hard and the significant burden falls on the individual residential home
owner. Perhaps we treat commercial properties differently.
Steve Piasclci:
Then you can make that recommendation. You are going to have a lack of equity between
residential and non-residential but that is fine.
Com. Miller:
I am not sure if that is fair either. Regardless of where the tree falls down, why is there a
reason for replacing it with multiple trees.
Steve Piasecki:
• You do not have to.
Aki Snelling:
• What you have is just the previous Commission recommendation. It is not necessarily what
the staff was recommending.
Com. Miller:
Staff recommends eight-for-one fora 24-36 inch tree. He said he could not embrace the
concept if you lose a tree why are you required to replace it with as many as eight trees? That
in turns generates the problem if you live on a small property you cannot fit them all and
because of this recommended wording the city is now asking the applicant to pay an in-lieu fee
because they cannot fit all these trees that the city is requiring on his property to begin with. If
we went back to the tree management program which is now what the staff is recommending,
this situation would never come up in the first place.
Steve Piasecki:
• Said it was a good point worthy of discussion by the Commission; it does seem excessive. I
don't know what the right number is but you can scale this down or cut it in half.
Com. Kaneda:
• Wasn't there an issue that if you take out a 30 foot canopy and replaced it with 5 foot canopy,
even if it is aone-for-one replacement for a tree, that you need to put something more than
that, and that is why you had multiple.
Cupertino Planning Commission 28 March 13, 2007
Steve Piaseclu:
~ Said it may be why he was suggesting the rigorous replacement guidelines. I don't know if it
is leaf for leaf canopy-wise but it does create a different problem.
Com. Kaneda:
I can see putting in more than one tree; I don't know if I can see putting in eight trees, but I can
see putting in more than one tree if you take down a large tree. However, I think there is an
issue as trees grow out, and we touched on this in the last meeting. If you look over a hundred
years and you take out one tree and are forced to put in eight trees and they start to grow up
and then you have too many trees and then you have to take out one tree and then put in eight
more trees, eventually you have a forest in your front yard. There has to be some mechanism
to handle that phenomena.
Chair Giefer:
Referring to the February 27 minutes, staff's original recommendation for in-lieu fees was the
arborist rates, the ISA guidelines. The value of that would be the in-lieu fee which as a group
we decided that did not make sense, which is why we started to look at market rates.
There is a difference between box size and tree trunk size; the box is not as big as the tree
trunk. Referring to Com. Kaneda's point, she said she would have a problem eventually
because there would be too many trees. If there was no in-lieu fee how would the canopy
replacement be corrected? It is impractical to put that many trees in an area where you know
we do not have that much room for in twenty years for that many trees. Are there any other
ways besides an in-lieu fee to support canopy replacements?
Steve Piasecki:
The concept that we are dealing with is that trees are going to go through a life cycle and you
are probably not going to get the canopy replacement short of creating something really
absurd. I do not know if I would make that my principal criteria. Maybe what we could
suggest is if we set a lot size and if the lot size is less than x, you will have a different
expectation of tree replacement than if the lot size is large enough to accommodate the
replacement trees. Maybe eight is just too much anyway. The mechanism to control this in
probably in the non single family cases would be the tree management plan. That plan would
be brought forward and they would say they are putting in eight and I am going to thin it down
to four in ten or twenty years. That is going to be accepted and recognized and we will select
the four on the health characteristics or what have you. I would suggest you scale back the
number and maybe have a threshold for lot size that would let you get a lot more realistic.
Chair Giefer:
Or you maintain the in-lieu fee because then you do not have to plant the trees. My other
question is on page 3-17 of the proposed language of the ordinance is that this is part of the
tree management plan. For clarification, protected trees are also available to be included in a
tree management plan. Staff indicated it was correct.
So if I have any of the five trees on the tree list, or any species of Oak that is on our tree list
and it is included in my tree management plan and I as the owner of those trees have not
nominated that as a Heritage tree because it is on private property and only I can make that
nomination and move that forward. I can go ahead and remove any of these protected trees as
part of the tree management plan. Staff said it was correct.
Asked why the ISA pricing is different from the market rate pricing.
Cupertino Planning Commission 29 March 13, 2007
Alci Snelling:
• The ISA guideline varies not only by tree type and size and the health of the tree; they also
take into consideration the real estate value of the location. There are a number of factors they
look at to come up with this valuation so it varies between tree to tree from location to
location, not necessarily by type of tree.
Chair Giefer opened the public hearing.
Debra Jamison, Cupertino resident:
• Illustrated a book relative to restoration of native plants in the landscape and discussed the
benefit of native trees to the environment and how they provide a connection to natural and
cultural past.
• Suggested the following changes to present to City Council:
° Add to the Purposes in the ordinance, a letter H "Provide to the habitat to native birds and
other wildlife."
° Add a letter I "Provide better understanding and opportunities to learn about the natural
and cultural history of Cupertino" because those are benefits of trees as well.
° The addition of the following native tree species: Western Sycamore, Bay Laurel, and
Madrone
• She urged the Commission to emphasize the need to educate the public about the issues she
discussed, not only through written material but also through classes about native trees and
shrubs, both in nature and their uses in the garden.
Elaine LaVeene, California Native Plant Society:
• Submitted a speaker card but was not present. An invitation was included to the upcoming
Going Native Garden Tour. For more information, go to www. c~ ~n~ ative~7ardentour.org
Jennifer Griffin, Rancho Rinconada resident:
• Said she was a proponent for tree protection in Cupertino, which has a strong tradition of
trying to protect trees in Cupertino particularly many species of Oak.
• She said the Big Leaf Maple tree is on the protected tree list and it has to be over 11 inches to
be protected. Earlier in the meeting there was mention of an unfortunate incident where
someone who was developing a commercial property in downtown Monta Vista had a large 18
inch diameter protected Maple tree in the back yard and that tree was not protected; it was cut
down. It set a very dangerous precedent. If you do not see how large a tree is, it is easy to cut
it down on paper.
• Said she wanted to ensure that the trees are protected in the front yard, the side yard and the
back yard and protect all trees on construction sites.
Sherry Fang, Cupertino resident:
• Said she was an avid hiker and loves trees and wild animals. The U.S. population is projected
to be around 450 million by the year 2050; currently there are 300 million; where will the 150
million live? She said she believed more land will be developed and more trees will be cut
unless private money is used to purchase private land, or determine how to stop population
growth.
• She said that on her way to the meeting, she saw about 15+ deer sitting on the Knopp property
under the big Oak trees. She suggested the city purchase the property while it was still
undeveloped.
• Jumping on the green wagon may look good for politicians but please think of the individuals
who have to administer and live by the rules on a daily basis. Will beefing up the tree
Cupertino Planning Commission 30 March 13, 2007
ordinance prevent more trees from being cut? When you talk about the penalties of several
thousand dollars and the projects are in the millions of dollars, people will continue to break
the law. How could we have prevented the downed Oaks on Lindy Lane? We need better
enforcement. I believe if you leave the public alone they will do the right thing. Please do not
expand the protected trees list. Sometimes things backfire; the more you try and protect
something, the more the public will steer away from it because it has consequences. Less is
more.
Alci Snelling:
• Said that the in-lieu fees were not in the ordinance; the City Council will have to adapt
including the in-lieu fees in their fee schedule. She said there is language in the tree
replacement standard about in-lieu fees but the actual in-lieu fee dollar amount will not be in
the ordinance.
Com. Wong:
• Expressed concern that they were trying to make a recommendation but without a written
recommendation by staff, it is difficult for the Commission.
Steve Piasecki:
• Which is why we are suggesting if you feel in-lieu fees are a good idea to leave the language
as is. Suggest to the Council that we need to develop the specifics on implementation of that
idea; it can be reasonable amounts. It provides another opportunity for property owners who
cannot accommodate the trees on site.
• You are talking about offering another option in the ordinance that you need to develop and if
you do not develop it, it will not be available.
Com. Wong:
• Said he maybe more comfortable if he saw more details, but presently was not in favor of it.
Steve Piasecki:
I don't know if we can give it to you right now. It is going to be fairly costly when you price
the cost of the tree and the cost of the installation.
Vice Chair Chien:
• Said the process began because there were several community members who were abusing the
ordinance by cutting down trees in the middle of the night. The reason they were cutting down
trees illegally was because of the high cost for a permit to cut the tree down legally.
• We said we were going to look at the ordinance and how do we reduce that so there is an
incentive to come in. I think we have done that. That is a tremendous accomplishment on the
part of staff to make the cost to come in to apply for a permit much less onerous?? Now it is
$150 per tree, for the first tree; if you disobey the rule and are caught it goes back to $2,500.
We hope it will be an incentive for our community members to follow the law.
• Relative to the specimen tree list, he said he did not concur with the reason for not expanding
the list that it would complicate matters. He said he would consider adding trees to the list;
adding one or two trees does not complicate staff's job.
• Said he did not see a distinction on the rear yard vs. front yard tree removals; the trees are
living organisms and should be protected, regardless of their location. Code enforcement as it
exists now has a right to go into a back yard to see if there is an offense being committed
relative to cutting down trees, presence of illegal sheds or other illegal activities.
Cupertino Planning Commission 31 March 13, 2007
• The in-lieu fee is a good option for individuals who do not have the room to replace a tree. He
said he supported a subcommittee to look into what the mechanisms should be for use of the
in-lieu fees.
• Supports the tree management plan which is very creative and innovative. He said he does not
support what is proposed in the model ordinance for the replacement trees, but supported the
February 27"' motion on Page 3-4. There were two categories for replacements. If you were
over 18 under 36 inches in diameter we asked you that you replace it with two 24 inch box or
one 36 inch. If you are over 36 inches we ask that you replace it with one 48 inch box or one
36 inch box.
Com. Kaneda:
• In the email from Debra Jamison there is comment about Oaks that I found very interesting.
There are 500 species of Oaks, many of which are non native. Speaking to the specimen tree
list I would be in favor of amending the language to say "native Oaks" and leave it to city
arborist to say what species are native Oaks. It does not make sense to me if we are talking
about native trees for everything else to just make a blanket statement of Oaks.
• Said he concurred with Vice Chair Chien's comments about rear yard vs. front yard tree
removals, and he did not see a strong difference between front yards and back yards. I would
like to see something where if a tree is a problem and someone needs to take it out that they
have a mechanism for removal; such as an in-lieu fee, for replacement of the tree. Said he
supported the in-lieu fee concept of taking the money and planting trees in public location or
somewhere else.
Said he supported the tree management plan. He asked what the basis was for the original
recommendation that the arborist made for tree replacement?
Aki Snelling:
• That was just the arborist attempt to come up with some equivalency.
Com. Kaneda:
• Was that based on the value of the tree?
Aki Snelling:
• It is difficult to come up with a specific standard because there are several varieties and types
of trees. He tried to come up with a standard list to use overall.
Steve Piasecki:
• We agreed that seemed excessive based on earlier discussion.
Com. Kaneda:
• Said in earlier discussions about property, they discussed the value of the tree, and tried to
match the value of the trees with the replacement trees. He said it would make sense to come
up with language that would adhere to that.
Steve Piasecki:
• He encourages simple guidelines for the neighbors who want to remove a tree. If you drive
around town with all the flowering trees, Cupertino has done a fairly good job making sure that
we plant trees in the community.
Com. Kaneda:
• I do not have a strong feeling that we should add to the tree list. I am reading that the arborist
had a strong case for the trees that were on the list and a weaker case for adding additional
Cupertino Planning Commission 32 March 13, 2007
trees. At this point I do not feel strongly that we should add to it. I do feel strongly that we
should amend the language for the Oak trees.
Com. Miller:
Discussed property rights. One of the reasons that we protect the trees is because we think
there is a public good in doing so. There is a benefit to the neighborhood and the community.
However, we are asking an individual property owner in many cases to foot the entire bill for a
public good, which is unfair. That leads to two arguments. One is that when we require these
very expensive replacement costs and it is the replacement costs is double what you see in the
table, and an additional $1,000 for the arborist, and another couple of thousand dollars to pull
the tree out. In the end, it costs thousands of dollars for every tree you pull out and then
replace with another tree that somewhat approximates the canopy of the last tree. If the city
decides that is a reasonable thing to do then the only issue for me is where does the fairness or
the burden of financial responsibility fall. Certainly the home owner bears some of that, it is
on his property; but I think it is considered a public benefit, a public good, then some of the
money for that replacement should come from the community or the city. I would suggest that
the Council reasonably set a precedent by approving a citywide beautification program in
which they are allocating funds for beautifying private property including planting flowers on
private property. That presents a precedent for this is not such an unreasonable argument. One
approach is that we decide as a community this is an important thing we want.
This is an important public good. Then the only issue is what is a fair funding of it. The other
way to go is to say it is unfair and the community does not want to pay for it and then in that
case the replacement costs should be reduced. We did a good job of reducing the replacement
costs of the application. The full amount of the costs is still in the thousands of dollars because
of the amount of money to pull the tree and install and replace the trees.
He discussed the issue of compliance. He said if they insist on requiring large amounts of
money for large trees from small home owners, they will not get compliance. We are spending
a lot of time trying to adjust this ordinance so we do get compliance but we are leaving out part
of the solution. I see two solutions to this with respect to replacement costs. One is that the
financial burden is shared between the homeowner and the community or that the financial
burden is reduced for the homeowner. That leads into the issue of the backyards. I thought
some areas of the ordinance we treat backyards differently. If there is a tree, it does not matter
where it is, if it needs to be protected it needs to be protected, back yard or front yard. On the
other hand when it comes to privacy protection we have all kinds of rules. If a neighbor builds
a two story next door he must shield his neighbor and his neighbor's backyard so no one can
see into his neighbor's backyard. In that sense we are making that back yard very private to
the homeowner but in this sense except for trees. A next door neighbor is not allowed to look
into that back yard. However, if there is a tree in there the neighbor is going to be able to look
at that tree. I am having trouble understanding why when we decide the property rights of the
homeowner vs. the property rights of the neighbor. The most private place in someone's
property is his backyard. If there was any place where you should have the right to take trees
out or not it should be there. There is one exception to that and that is Heritage trees because
there are not that many in the city and we designate them and when you buy the property you
know you have a Heritage tree and a responsibility to it. Other protected trees can grow up
and become protected just by happenstance and then all of the sudden you are into a very
expensive problem that you never really anticipated in the first place.
Said he supported the concept of backyard trees would change the exception to that rule on
page 3-21, stating "exclude any Oak tree with an 18 inch diameter at breast height" It is an
issue; do we want people to plant Oak trees or not? What you are saying is if you are going to
plant anything in your back yard do not plant an Oak tree because you run into a problem later
on. Why would you exclude that; change it to any tree except a heritage tree. Whether it is an
Cupertino Planning Commission 33 March 13, 2007
Oak tree or not, we want to encourage people to plant trees, not discourage them from
planting.
• Said he did not support in-lieu fees and felt there was no reason to replace one tree with more
than one tree. He said he agreed with Com. Kaneda's suggestion to change to native Oaks.
• Said he did not support adding to the tree list because he accepted the arborist's point of view
that the primary reason was to protect the large canopy trees in Cupertino. Debra Jamison
suggested that there are things that they may want to protect and he agreed. He said he also
agreed that they wanted to do something in the way of either protecting or encouraging the
growth of native trees but putting them on the protected list may not be the best solution.
• It would give a message to people not to plant them because they are going to run into
problems and thousands of dollars if they have to pull them out. He suggested ways to
encourage people to plant native trees, including providing a preferred list when they apply for
a permit for tree removal. They would not be included on the protected list, so that if they
have to be thinned out later, it is easy to do so.
Com. Wong:
• The tree ordinance is not working; it is costly and does not encourage folks to come into city
hall and apply for a permit to cut down a tree. We want folks to comply and we are moving a
recommendation to the City Council, and differ on some points. The difficult part is after City
Council approval, how to educate the community on using the policy.
• Said he concurred with Coms. Kaneda and Miller regarding the tree list, to include native trees.
He said he was not comfortable with adding to the current list.
• Said he was willing to compromise on the rear yard and support protected trees.
• In-lieu fees do not make sense; the policy is not written and is only conceptual. He said it was
difficult to support a conceptual plan and he wanted to see more details.
• Supports the Tree Management Plan. The reason why we are having this ordinance is to have a
fair and equitable replacement plan. If someone abuses it they should be penalized, perhaps
with a fee. The The tree replacement has to be reasonable; for a small lot of 6,500 square feet
what is suggested currently does not make sense. He said that Com. Miller's suggestion of it
being a public benefit vs. property rights should be addressed by the City Council as well.
Chair Giefer:
• It occurred to me while everyone was talking about the in-lieu fees vs. the tree replacement
values that there may actually be a compromise that we can come to tonight as part of the
language in the current policy. It is a valid argument that if I live on a 6,000 sq. foot lot and I
need to get rid of a Deodar Cedar I cannot put eight Deodar Cedars in its place; it is not
practical.
• A creative approach is to change the language of Section 14.18.185 "tree replacement" on
Page 3-21; change to "tree replacement or in-lieu fees" and combine the two. The tree needs
to be removed because it is pulling the house apart. What my objective has been is to try to
replace as much of the canopy as we possibly can because it is important to have a lot of tree
coverage in our urban environment where there is a lot of paving, it shades the home. I would
suggest we change that section and call it Tree Replacement and/or In-Lieu Fees.
• Section A, second line "standards or in-lieu fees for approval" where you have replacement,
you just add in-lieu fees. We know what the market value is; if we base the tree replacement
sizes on the market value and the in-lieu fees on the market value, it would be simple.
• Suggested on Page 3-4 to change "two 24 inch box and one 36 inch box" to "three 24 inch
box" because trunk height and box size do not equate. A 24 inch box tree is a tiny trunk. I do
not think we are even close if we just go with the low amounts. On the higher ones we are
getting better there but that would be a simple fix. If we add a third column on page 3-23
where it is the market value associated with those box sizes listed in the staff report, it might
Cupertino Planning Commission 34 March 13, 2007
be a simple way to establish the replacement and in-lieu fees. The purpose of an in-lieu fee is
if you cannot replace that Deodar Cedar with three or four trees on your property, we want to
try and replace canopy then you need to plant the trees somewhere.
Com. Wong:
• Are you saying to replace at least one of them?
Chair Giefer:
• One or the other or a combination of both. If I am required to plant three or four trees and I
only have room on my lot, once the Director has agreed to the tree removal permit and I only
have space for two trees, the third one goes to the in-lieu fee.
Com. Wong:
• You are also going to give one of the options that they can just pay all the in-lieu fees and not
replace the tree.
Chair Giefer:
• I think that when we remodel a house or we are expanding a house and the arborist comes out
and says you can get rid of that tree and your replacement are these, the first priority should be
always be to have it replaced on the owner's property if they have space. We are going to have
5,000 square, 6,000 square foot lots where you cannot put a big tree. What are those people
going to do?
Com. Wong:
• Wasn't the intent to protect a tree somewhere on the property?
Chair Giefer:
• You have to have an arborist go out there and look at it. If the arborist looks at it and says it is
a healthy specimen, there is no reason to cut it down but you want to cut it down for whatever
reasons and you get your permit. The arborist would be able to say you have.room for a tree or
you do not have room. We have never discussed this before but what I am trying to do is
provide an alternate and a way for us to move this forward.
Com. Miller:
• I thought that is what staff proposed and that staff had suggested one of the reasons for the in-
lieu fee is because we are asking them to plant more trees than they had space for.
Chair Giefer:
• Correct; it has been the value of those and where they go that has been the issue. This
simplifies it if we go with the market based rate that allows us the flexibility of saying "replace
the tree on your property or make a contribution to the in-lieu fee and it will be planted
somewhere else within the city."
Com. Miller:
• Said he did not see the fairness in asking them to replace one tree with more than one tree.
Chair Giefer:
• I think that one of my objectives that I hoped we would agree on is how we are going to
replace that canopy? If you do not replace it with multiple trees you are not going to get it
anywhere close.
Cupertino Planning Commission 35 March 13, 2007
Com. Miller:
• Said he supported privacy planting as long as there was a program to thin it out as well.
Com. Kaneda:
• What does the current ordinance say about backyard trees and tree removal?
Aki Snelling:
• There is nothing specifically in the ordinance that talks about differentiating rear yard vs. front
yard trees; there is no distinction. If it is a protected tree of that size, and it is in the rear yard
currently you would have to follow tree removal permit application and go through the
Planning Commission for approval. The Planning Commission would determine if there is a
replacement tree requirement.
Com. Kaneda:
• Asked Chair Giefer if she supported if someone took out a tree in the back yard they could just
give a straight in-lieu fee?
Chair Giefer:
• Said the first priority always should be that the owner replace the tree on their property.
Com. Kaneda:
• And if they don't want to?
Chair Giefer:
• She said that part of the suggestion is that one of the things the arborist should evaluate when
they inspect the tree, is do they have space to reasonably grow the replacement trees?
Com. Kaneda:
• Said on one hand, he saw the value of protecting the trees; and on the other hand he saw
clearly the privacy issues and I can see plenty of people who will want to take out a tree in
their backyard, that is a protected tree and maybe they just want sun in their backyard or to
have a swim pool. The compromise is that you allow them to do that through the in-lieu fees.
Therefore you are going to get a tree somewhere; it may not be where it was but it will be in
the city of Cupertino.
• Com. Miller made a good comment on coming up with a native tree recommended list. I like
that but then possibly as we get into this in-lieu planting if we are going to go ahead with that,
if we want to look at native species beyond the five species, if we had a list you could
potentially plant a variety of native species instead of just those five protected trees.
Chair Giefer:
• Said she preferred to replace them with only the native species, because it makes more sense
for the city water wise.
• Suggested that the Bay Laurel and California Sycamore be added to the protected tree
ordinance.
• Said she saw no difference between the rear and the front yard in terms of tree permit; the
process is simpler and more affordable for people to be in compliance.
• Said she supported in-lieu fees, and would support a subcommittee to define the in-lieu fee as
an alternative.
• Said she felt the tree management plan Com. Miller originally proposed is very creative; and
moving forward would be a good solution for people who do overplant initially.
Cupertino Planning Commission 36 March 13, 2007
• Asked for comments on the idea of adding the language of in-lieu fee with tree replacement.
Vice Chair Chien:
• Said it was a good idea, but he understood that it is already on Page 3-22. It is not hashed out,
what the city attorney is referring to, is now that we have a fee, the fee goes into a fund, and
there needs to be articulation about how that fee is spent. That is something that needs to be
determined at either the Council level or at a subcommittee level on the Commission.
• Clarified that they were not offering people an option of paying to get out of their tree
problem. The first order of priority when cutting down a tree, whether legally or illegally, is to
have that tree replaced.
• We developed an in-lieu fee schedule because we found that there are certain cases, and I
would argue that they are not the majority of our cases, they are the exceptions in my opinion;
some cases they are very crowded and the reason they had to cut it was because that area was
overplanted, and therefore we have this idea the in-lieu fee for those cases where replanting is
not an option due to space.
• Said the majority of cases would be people on average lot sizes, 6,000 to 8,000 square feet,
who chose to remove a tree and they have space to replant the tree. The in-lieu fee would not
be an issue for them.
Com. Miller:
• Relative to public right of way, there was an issue there that if it is in the public right of way, it
is public property. The issue is no one should be permitted to make an application for
designation of a heritage tree if it is in the public right of way, unless and until we figure out
what the liability is for the city and the homeowner if we do such a thing.
• With respect to the fee on the tree management plan, I am concerned that may be excessive; it
is adding to the cost, and typically when you come up with a planting, the staff is going to have
to review your landscape plan to begin with and you are adding a tree management plan that is
going to be part of the landscape plan. Maybe we charge something on the order of what we
are charging for an application, but charging close to $1,000 just for the tree management plan
when it is probably going to be considered as part of the larger planting plan is going to
discourage compliance.
Com. Wong:
• Reiterated Vice Chair Chien's comment about the in-lieu fee, the fee is not to replace trees; it
is important that the tree be replaced. He expressed concern that if they allow an option of
paying a fee, if the person can afford to pay the fee to get a swim pool in or take down a tree to
get more shade, the tree should be relocated vs. being put into a pot.
• Said he was not comfortable with in-lieu fees until the issue is flushed out in writing.
Chair Giefer:
Said she concurred with Vice Chair Chien that the language was already present. The
remaining issue is whether to move ahead on that decision, and decide whether a
subcommittee is needed to make the recommendation to Council on what the fees are and how
they should be managed.
Relative to size of the replacement trees, the goal is to replace canopy, and referring to Page 3-
4, the 18 inch up to 36 inch, we are not going to get close to canopy replacement on; and 18 to
36 inch diameter tree with two 24 inch box trees because they are going to have very small
trunks or one 36 inch." I suggest we would go up one more which is still a lot less then was in
the staff appendix provided in the ordinance and I would suggest at least three 24 inch boxes or
two 36 inch box trees, because the size of those trees are not going to be substantial initially.
The box size does not equate to the trunk size at all.
Cupertino Planning Commission 37 March 13, 2007
Com Wong:
• Again it would go back to, does the property have enough space to accommodate all those
trees?
Vice Chair Chien:
• Said he supported what was on Page 3-4.
Com. Kaneda:
• Said he would prefer adding one to each.
• Said he supported three 24 inch box and two 36 inch box.
Com. Miller:
• Said his preference was one-for-one tree replacement only.
Com. Wong:
• Said he supported one-for-one tree replacement.
Chair Giefer:
• Supported one-for-one tree replacement.
Com. Wong:
• If a tree has to be replaced, I would rather it be moved on the location. I am sure that there
should be a location for at least one tree, and it may mean that the footprint of the house has to
be a little bit smaller.
Com. Kaneda:
• What about just moved, not moved on site but off the site, donate it to the city or something
similar?
Com. Wong:
• Said it would defeat the purpose, that if you move a protected tree to another site then that
neighborhood or that business will be losing that protected tree.
Com. Kaneda:
• The house would be losing the protected tree; the neighborhood may or may not, but the city
will not.
• Asked Com. Wong if he would be happy with moving the tree.
Com. Wong:
• Said if they make the necessary findings, then they can move the tree.
Steve Piasecki:
• He cautioned the risk factor of moving mature trees, stating that the few they had moved were
lost at a rate of 50%. The preference is to replace the tree one-for-one rather than move it; it is
not very practical to move the trees.
Com. Kaneda:
• That is why we have those findings in the ordinance for public health, safety and welfare.
Cupertino Planning Commission 38 March 13, 2007
Steve Piasecki:
• Cautioned that he felt it was not a good solution, just replace in the ratio mentioned, with the
in-lieu fee option that if someone wants to relocate a tree they can certainly do it on their own
and try and make that work.
Vice Chair Chien:
Explained the rationale for his support of Page 3-4; there are Commissioners proposing aone-
for-one and two suggesting going as high as three. Part of the problem of the original
ordinance was that people saw that replacement, they looked at what was asked of them to
replace when the cut a tree and there were none if you recall.
In the current ordinance there are no standards of telling the applicants what they should
replace with, and when those decisions have come before the Planning Commission, I voted
for the one-for-one replacement as I didn't think it was fair to ask anymore of them, given that
the ordinance did not state that.
Now that we are at a stage that we are recrafting the ordinance in hopes of improving it, I think
we need to take baby steps as a disincentive to people to cut down trees, and I think that we do
that by increasing the number that they have to replace. When they look at it, they think they
shouldn't do it; but instead if we follow one-for-one, it is essentially what we have had before.
If we go as high as three I think we are not taking the baby steps we should be taking; we don't
want to shock the community; two is a good compromise.
Com. Wong:
• Suggested atwo-tier system, if someone removes a tree legally they only have to replace one-
for-one, but if they do not do it legally they should be penalized, and that the penalty could be
discussed, either fee or higher replacement.
Vice Chair Chien:
Said Com Wong's suggestion is good and is a concept he had in mind; the one of retroactive
rather than non-retroactive; however, the ordinance does not do a good job in making that
distinction and it would be an administrative nightmare for staff to have two separate
ordinances, one for retroactive vs. one that is non-retroactive. Unfortunately we don't make
that distinction, it would complicate things.
Steve Piasecki:
• Said it would imply holding a type of judicial process to afErm if it was done legally or not,
and there may be many reasons why they were not responsible for the tree being removed. He
suggested not looking at it as being punitive, but that they be given a price break if they come
in early and work with staff. If not, they would be charged full fare, not as punishment, but an
incentive to come in early.
• The distinction with the Big Leaf Maple, in the arborist's viewpoint they don't have as much
value as they are fast growing as opposed to an Oak tree which is very slow growing and has a
bigger value. The arborist felt that one 48 inch box was a suitable replacement value for that
tree because of the type of tree it was, not for any other reason.
Chair Giefer:
• What I am asking is we had an 18 inch box Maple that was removed and replaced with 48 inch
box tree which doesn't correlate at all to what we are talking about tonight; I want to trend the
data on what arborists recommend in the past.
Cupertino Planning Commission 39 March 13, 2007
Steve Piasecki:
• Said he did not know, but felt what the arborist was suggesting was excessive; closer to what
the Commission is talking about seems more reasonable; and having an in-lieu fee option
provides another option for the property owner, which is a good thing. He said he did not know
the ratio.
Chair Giefer:
• Said that it strikes her that to be more consistent with what the arborist is recommending for a
replacement, the numbers are more consistent and also helps us get closer to trying to replace
canopy.
• What I am thinking about, is over the past four years, all of the arborists, when a tree is
removed, the arborist makes a recommendation on how many trees should be replanted
appropriately to replace the specimen sized trees removed. His calculation was based on the
financial aspect of it; it is not always that way; we see other values made. What I am trying to
get at is, for me the primary objective is what are we going to do to try to replace the canopy. I
don't agree that eight 24 inch box is the number; that is too many. It strikes me that replacing
it with two is too few for a tree of that size.
Steve Piasecki:
• Noted that the arborist was changed, and so the trending will not show a pattern. A suggestion
might be, as we only seem to be hung up on what is the replacement, the quantity of
replacement, is the Commission in a position where you can move on everything else then
have discussion on the replacement and see if you can reach a consensus on that, at least we
can get the bulk of the ordinance through you, even if you had to say let us do some more work
on that, at least the Council would have everything else, or maybe you are able to resolve it
tonight, what the replacement is.
• Said the fee schedule was separate from the ordinance; it is set by City Council; the
Commission can make a recommendation, but the Council decides on that, and it is budget
related as well.
Com. Miller:
• I propose this new concept that part of the reason for protecting the canopy is a public good
and not a private good, and therefore if you intend to do that there should be some
recommendation that the city pay part of the cost for that. Would any of the commissioners
like to comment on whether or not that is reasonable?
Steve Piasecki:
• There is no mechanism that I am aware of, but the Commission could send a separate minute
action to the Council raising this philosophical issue and asking that Council look at whether
they would be willing to assist with the tree canopy replacement.
Com Miller:
I understand there may not be a mechanism, but I was asking if it sounds like a reasonable
idea.
Vice Chair Chien:
• Everything we talk about here is for the public good, but we don't ask the public to pay for
everything that we do, so by that argument, no. Because the tree is on private property, he said
he did not see the nexus for the public to pay for that.
Cupertino Planning Commission 40 March 13, 2007
Chair Giefer:
• Said the city attorney made the same comment at a previous meeting with regard to using
public funds to pay for private trees.
Motion: Motion by Com. Wong, second by Com. Miller, to approve MCA-2006-02, with
the following conditions: Regarding tree list, change to native Oak trees, and no
additional trees will be added to the list; no permit required for removal of rear
yard trees; no in-lieu fees; Tree Management Plan approved; remove Heritage
trees; Tree replacement plan is one-for-one; Addition of city phone number to
tree list (Vote: Motion failed 2-3-0; Chair Giefer, Vice Chair Chien and Com.
Kaneda voted No.)
Motion: Motion by Vice Chair Chien, second by Com. Kaneda, to approve MCA-2006-02
with the following conditions: No exemptions for the rear yard trees; Implement
in-lieu fees based on the model resolution; Implement Tree Management Plan
based on model resolution; Implement replacement trees based on Page 3-4 of
staff report (for trees up to 18 inches and up to 36 inches in dbh, that two 24 inch
box or one 36 inch box be replaced for trees over 36 inches; one 48 inch box
Heritage tree or one 36 inch box, not Heritage tree); add word "Native" to "Oak
tree"
Amendments to Motion: Vice Chair Chien amended the motion to include the phone
number of the city offices on the tree list, and the addition of the
Bay Laurel and Madrone trees to Heritage tree tag.
Amendments were accepted by Com. Kaneda.
(Vote: 3-2-0; Com. Wong No; Com. Miller No)
Chair Giefer:
• Relative to the tree list, she suggested considering some suggestions made in Deborah
Jamison's email: Western Sycamore, Madrone, and Bay Laurel trees.
• Said that she recommended the Bay Laurel, California Sycamores, and Western Sycamores be
added to the list because they exist in the wilds, the riparian areas and creek corridors in
Cupertino and their beauty and majesty and they provided animal habitat.
Com. Wong:
• Explained that although he voted No, he felt they made long strides and were moving forward
toward the right direction; but there were some items he disagreed with fellow Commissioners
and had to be worked out with the City Council. He said he supported the revisions, and
commended staff on the excellent job they did over the six months.
Com. Miller:
• Commended staff for the excellent job, but said he did not support the ordinance because it did
not fully addressed the property rights issues or the compliance issues.
OLD BUSINESS: None
NEW BUSINESS: None
Cupertino Planning Commission 41 March 13, 2007
REPORT OF THE PLANNING COMMISSION:
The Environmental Review Committee:
• Chair Giefer reported that the February 28"' meeting including discussion on sustainability;
staff provided a report on progress on hiring a consultant to audit the General Plan and do a
nexus between the current policies and procedures within the city and the General Plan.
Housing Commission:
• No Report.
Mayors Monthly Meeting With Commissioners:
• No Report.
Economic Development Committee:
• Com. Wong reported that the meetings are held quarterly, and the committee has not met yet.
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT:
Chair Giefer:
• Reported that the consultant from Global Green would be kicking off the discussion on
sustainability at an upcoming Planning Commission meeting. Following discussion, a study
session was scheduled for March 27, 2007 beginning at 5:30 p.m., followed by the regular
Planning Commission meeting.
Steve Piasecki
Reported that the North Vallco community workshop was held on March 8, and a meeting will
be held in April.
Reported that Com. Kaneda was featured in the San Jose 1Vlercury News Business Section
relative to installation of solar panels in his office building.
ADJOURNMENT: The meeting was adjourned to the March 27, 2007 Planning Commission
study session and meeting beginning at 5:30 p.m.
• ~ ~
SUBMITTED BY:
Elizabeth llis, Recording Secretary
Approved as Amended: April 24, 2007.