.02 R-2008-14 Chia Ching Lin
CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014
DEPARTMENT OF COMMUNITY DEVELOPMENT REPORT FORM
Application: no applications (see Discussion, first paragraph)
Applicant: Chia-Ching Lin
Property Location: 21947 Lindy Lane, APN 356-25-029
Agenda Date: July 22, 2008
APPLICATION SUMMARY: J
Director's referral of architectural and site plans for a new, two-story 4,499 square-foot
single-family residence with basement
RECOMMENDATION
No recommendation
PROJECT DATA:
Lot Area: 20,473 square feet
Existing Zoning: Rl-20 (Single-Family Residential, minimum lot size 20,000 sq. ft.)
Basement Area: 1,977 sq. ft.
First Floor Area: 2,040 sq. ft. (w /0 garage)
Garage Area: 541 sq. ft.
Second Floor Area: 1,918 sq. ft.
Total Floor Area (w /0 basement): 4,499 sq. ft.
Total Floor Area (w / basement): 6,476 sq. ft. (basement not countable toward building area)
Maximum Floor Area: 5,500 sq. ft. (not FAR-based, restricted by property covenant)
Floor Area Ratio: 22 %
% of 2nd Floor to 1st Floor
1 st Story Front Setback:
1 st Story Side Setbacks:
1 st Story Rear Setback:
2nd Story Front Setback:
2nd Story Side Setbacks:
2nd Story Rear Setback:
Grading Quantity (cubic yards):
Cut and fill, basement grading excluded.
On-Site Parking:
Proposed
74.3%
56' - 4"
9',14' -11"
80' - 9"
56' - 4"
10' - 4", 32'-6"
90'
1,268
Minimum Required (Maximum Limit)
not limited, (but FAR~45%)
20'
combination of 15', no side less than 5'
20'
25'
combination of 25', no side less than 10'
25'
(2,500)
2 enclosed 2 enclosed
4+ unenclosed 4 unenclosed
BACKGROUND
The applicant (Chi a-Ching Lin) is proposing to construct a 4,499 square-foot, two-story
residence with basement on a 20,473 square foot lot located along the north side of
Lindy Lane. The immediate neighborhood is predominately older, ranch style, one to
2-1
Arch. Plans for 21947 Lindy Lane
Page 2
July 22, 2008
two story homes. Newer dwellings are all larger, two-story homes with a variety of
architectural styles and building finishes. Most of the homes in this northerly Lindy
Lane area are on lots of 20,000 square feet or more. The neighborhood has a semi-rural
character without any sidewalks or street lights.
The neighborhood of homes on the south side of Lindy Lane are also largely, ranch
style, two-story dwellings with a more suburban character because of the regimentation
of 10,000 square foot lots along the toe of the slope and larger lots upslope.
History .
The property is Lot 2 (middle lot) of a 1.6-acre, 3-lot subdivision on Lindy Lane,
commonly known as the "Moxley Property", that was approved by the Planning
Commission on July 9, 2001.
In 2004, the City Council subs~quently approved the final map and subdivision
improvement plans. The subdivision created three lots of slightly over 20,000 square
feet each. In that same year, the Planning Commission expressed concern about the size
of the houses that could be built on the three lots, and discussed the possibility of
rezoning the property from its current Rl-20 designation to Residential Hillside. In lieu
of the rezoning, Mr. Moxley agreed to a covenant to limit the size of all structures to
5,500 square feet on each lot.
The three lots were subsequently sold to different property owners. The owners of Lots
1 and 3 (21949 and 21943 Lindy Lane) were issued building permits for roughly 5,500
square foot homes in 2005 before generally more restrictive R1 zoning ordinance
amendments went into effect. Thus, none of the newer homes on Lindy Lane: 21949,
21943 and the adjoining 21951 (building permit issued in 2003) had discretionary single-
family design review because all fell below the planning permit thresholds in effect at
the time. The construction of each house has been controv~rsial with some neighbors.
As a result of site preparation for Lot #2 conducted by the subdivider, five specimen
size oaks were removed from Lot #2 - four approved for removal, one not. The
replacement requirement in the tentative map was one-for-one with the replacement
being a 36" box oak. The five new oaks were planted in 2007 and are shown on the plan
set.
DISCUSSION
Neighborhood Concerns
In May 2008, the applicant erected story poles and staff mailed a notice and plans to
surrounding property owners within a 300 feet radius, notifying them of the pending
residential development. Because of the level of concern about the project, staff
continued to refine the design with the applicant and try to address neighbor concerns.
2-2
Arch. Plans for 21947 Lindy Lane
Page 3
July 22, 2008
Because of the past history of controversy and the enclosed submitted comments
(Exhibit A), the Director elected to refer the plans to the Planning Commission for
review and decision.
Staff has received letters,emails and telephone calls from nine neighbors with one email
of support. The neighborhood concerns are summarized below:
.:. Protect redwood trees on property. (Note: There are no redwood trees on this
property)
.:. Address construction impacts on the neighborhood.
.:. Relocate house to protect valley views of house on upper lot (Lot #1).
.:. A stepped foundation would conform better to the slope of the land, rather than,
the cut and fill that creates a flat pad.
.:. Not fond of stone exterior for the entrance.
.:. Privacy protection plan should include the front yard to screen views of the
house from the south side of Lindy Lane and Lindy Place.
.:. Discrepancies in the location of the easterly sideyard retaining wall and the
overall wall height is too tall.
.:. The proposed house appears to be inconsistent with the letter and intent of the
R1 zoning ordinance, which is to enhance the identity of residential neighbors;
ensure provision of light, air and a reasonable level of privacy; ensure a
reasonable level of compatibility in scale of structures within neighborhoods;
and" reinforce the predominantly low-intensity setting in the community.
.:. Second floor and balcony shall be consistent with the requirements from the
Residential Hillside (RHS) zoning district.
.:. Project creates significant and adverse impact to passive solar design and natural
lighting.
.:. Project will block views of the valley, and sunrise views (from the first floor)
during certain times of the year.
.:. Project encroaches into the required one-story building envelope, which is
measured from natural grade, not finished grade.
.:. The mass of the second story is much larger than the second story mass of the
adjacent residences and is not compatible.
.:. Retaining walls are proposed less than 5 feet from the property line and
potentially threaten existing support piers for the uphill property.
Please refer to exhibit A for additional details on the neighbors' concerns.
Neighborhood Compatibility
One of the principal purposes of the R1 Ordinance is to ensure a reasonable level of
compatibility in scale of structures within a residential neighborhood. This is basically
achieved by having developments adhere to a set of specific development parameters
(Le., maximum lot coverage, floor area ratio, building height, second floor to ground
floor ratio, building setback, building envelope) to curtail development intensity to a
2-3
Arch. Plans for 21947 Lindy Lane
Page 4
July 22,2008
level generally accepted by the community. Typically the City has allowed new homes
to be maximized within the approved framework of the R1 Ordinance provided that the
design and the style of the home are consistent and/ or compliment the neighborhood.
Building permits were issued in 2005 for the Lot 1 (upslope) and Lot 3 (downslope)
homes. Both owners elected to build up to the maximum, which is 5,500 square feet
and their second-stories were limited to 35% of the first story, which were the zoning
rules in effect at the time of construction. The zoning regulations for this area changed
in November 2007 and the owner of Lot 2 has elected to build a smaller house (4,500
square feet), set it back from the front driveway, and build a larger second story (74.3%
of the first floor), which is allowed by the new zoning amendments.
The applicant has modified the design to eliminate its previously heavy appearance and
to achieve greater neighborhood compatibility between the older, smaller ranch-style
homes and the newer, larger homes of mostly European and modern architectural
styles. The concrete tile roof was changed to a lighter slate or clay tile roof. The roof
veneer was removed from the turrets and entrance and limited to just the base of the
house. Thick balcony balustrades were replaced with the thinner iron-steel railings.
The applicant will also be adding fenestrations to the windows to break up overall
window sizes. Overall staff believes the applicants will be creating an acceptable
balance between the older and newer residences in the neighborhood.
Retaining Wall Height & Location
The applicant has lowered the building pad three feet to reduce the height of the
retaining wall facing the downslope property to 6 feet or under. Retaining walls meet
property line setback regulations and will be reviewed, along with the basement and
foundation, by the applicant's geotechnical engineer and the City's geologist prior to
building permit approval. Lowering the building pad, raises the height of the upslope
retaining wall by three feet, but that wall is not visible to the upslope property owner.
The R-1 ordinance requires retaining walls in excess of five feet to be screened with
landscaping or faced with decorative materials.
Construction Activities
A construction management plan should be required as part of a building permit
application. Construction activities must meet the City noise ordinance and required
construction hours. The applicant will address this at the hearing.
Light and Air, Obstruction of Passive Solar House Design and Obstruction of Views
Compliance with the R-1 building setbacks and building envelopes is by definition
providing adequate air and light to adjacent residential parcels. Building separations
between Lot 2 and Lot 1 (upslope) is even generally greater than the minimum building
setbacks with most of the proposed second story wall length 14 to 17 feet away from the
property line and 27-30 feet away from the upslope residence wall. In reviewing Sheet
2-4
Arch. Plans for 21947 Lindy Lane
Page 5
July 22, 2008
A-8, the elevation of the second floor of the proposed residence is below the elevation of
the first floor of the Lot 1 (upslope) residence. The view from the Lot 1 residence is
essentially that of a recessed one-story dwelling.
The solar design aspects of the R1 zoning ordinance have been misinterpreted by the
neighbors (Exhibit B). While the City may allow variances to setback and height to
accommodate passive or active solar equipment or house design, no such modified
structure shall infringe upon solar easements or adjoining property owners. There are
no solar easements on the properties.
The City does not regulate the protection of views in hillside areas (Exhibit C: CMC
section 19.40.050(L)). As the plans are proposed the Lot 2 house occupies a middle
elevation that maintains or creates a second story view for each of the three adjacent
lots. There are no viewshed easements on the properties.
Privacy Protection
The project is screened from Lindy Lane by the presence of the mature trees downslope
from the property and the existing house on Lot 3. The project will be required to
adhere to the required privacy protection standards outlined in the R1 Ordinance,
which include screening of second story window and balcony views into adjacent side
and rear yards. Landscape screening was not required for rear yard views because the
rear yard property owner is at a grade elevation above the second floor of the proposed
house. The ordinance allows adjacent property owners to waive or modify those
landscaping requirements in writing in the event that privacy landscaping is not
wanted.
Submitted by: Colin Jung, Senior Planner .~ I
Approved by: Steve Piasecki, Director of Community Developm~
ENCLOSURES
Model Resolution for approval
Model Resolution for denial (available at hearing)
Exhibit A: Neighbor comments
Exhibit B: Excerpt from solar provisions of R1 Ordinance
Exhibit C: Excerpt from Views and Privacy provisions of RHS Ordinance
Plan Set
HCuptNt/Planning/PdreportjpcReports/2007/2007 Arch Plans 21947 Lindy Lane.doc
2-5
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO.
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO APPROVING
A RESIDENTIAL DESIGN PERMIT FOR A NEW 4,499 SQUARE FOOT, 2-STORY SINGLE
F AMIL Y RESIDENCE AT 21947 LINDY LANE
SECTION I: PROTECT DESCRIPTION
Application No.:
Applicant:
Location:
2007 residential design permit
Chia-Ching Lin (Krishnapura & Minasandram Residence)
21947 Lindy Lane
SECTION II: FINDINGS
WHEREAS, public notices have been given in accordance with the Procedural Ordinance of
the City of Cupertino, and the Planning Commission has held one or more public hearings on
this matter; and
WHEREAS, the applicant has met the burden of proof required to support said application;
and has satisfied the following requirements:
1. The proposal, at the proposed location, will not be detrimental or injurious to property
or improvements in the vicinity, and will not be detrimental to the public health,
safety, general welfare, or convenience;
2. The proposal is consistent with the purposes of this chapter, the General Plan, and
zoning ordinance;
3. The proposal will use materials, design elements and simplified building forms that
compliment the existing and neighboring structures;
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter, the architectural and site plans are hereby approved subject to the
conditions which are enumerated in this Resolution beginning on page 2 thereof; and
That the subconclusions upon which the findings and conditions specified in this resolution
are based and contained in the public hearing record concerning the residential design
permit for 21947 Lindy Lane set forth in the Minutes of the Planning Commission meeting of
July 22, 2008, and are incorporated by reference as though fully set forth herein.
SECTION III. CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT
DEPT.
2-6
Resolution No. 6490
Pa9;e 2
ASA-2007-12
Novenaber13,2007
1. APPROVED PROTECT
Approval is based on plan set titled: "The Krishnapura's New Residence/21947 Lindy
Lane/Cupertino, CA 95014" consisting of 13 sheets labeled A-O through A-8, A1.1, C-
1, C-2 and L-1 dated 4/4/08, except as amended by the Conditions contained in this
Resolution.
2. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions. Pursuant to
Government Code Section 66020(d) (1), these Conditions constitute written notice. of a
statement of the amount of such fees, and a description of the dedications,
reservations, and other exactions. You are hereby further notified that the 90-day
approval period in which you may protest these fees, dedications, reservations, and
other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail
to file a protest within this 90-day period complying with all of the requirements of
Section 66020, you will be legally barred from later challenging such exactions.
3. GEOTECHNICAL REVIEW
Prior to building permit approval, basement, retaining walls, grading and drainage
shall be evaluated and designed by the applicant's geotechnical engineer and
reviewed and approved by the City Geologist and City.
4. CONSTRUCTION MANAGEMENT PLAN
In conjunction with the building permit review, the applicant shall submit a
construction management plan to address staging of construction materials, loading
and unloading areas and parking for construction vehicles. The Director of
Community Development shall review and approve that plan.
PASSED AND ADOPTED this 22nd day of July 2008, at a Regular Meeting of the Planning
Commission of the City of Cupertino, State of California, by the following roll call vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
ATTEST:
APPROVED:
Steve Piasecki Marty Miller, Chairperson
Director of Community Development Planning Commission
G:CuptntjplanningjPdreportjResj2007j2007 Arch & Site Plans for 21947 Lindy Lane approval.doc
2-7
EXHIBIT A
Telephonic Comments from Neighbors concerning development plans for 21947 Lindy
Lane.
1. From Andrew Tan. 21932 Lindy Lane:
He is concerned about the three redwood trees across from his house and does not
want to see them removed. He also does not want any construction to be too
nOISY.
2. From Bill Guengerich. 21950 Lindv Lane:
He said the City should use its powers to place house so views from upper lot are
not obstructed.
3. From Sara Arzeno. 21902 Lindy Lane:
She expressed her concerns with future construction impacts on the neighborhood
and said there should be a construction management plan in place.
H: ColinjlWord Docs/R-2008-14b.doc
2-8
Page 10f2
Colin Jung
From: Luciano V. Daile Ore [Idalleore@gmail.com]
Sent: Wednesday, May 28,20085:22 PM
To: City of Cupertino Planning Dept.; Colin Jung
Cc: 'Cristina Daile Ore'
Subject: Comments on proposed new residence at 21947 Lindy Lane
Dear Mr. Jung
These are our comments regarding the new residence at 21947 Lindy Lane.
1. First of all, we would like to let you know that we are very pleased with the process of requiring story poles
and neighbors notification. Although this process is more cumbersome and may create initial tensions, if
handled in an appropriate way, it is far more preferable than to present the community with a fait-accompli
which may result in long term resentment between neighbors. As you may understand, given recent
history, a peaceful coexistence is by now of paramount importance for us all.
2. We also understand that the owners have been in conversation with their neighbors over the long week-
end regarding possible compromises which may result in alterations of the proposed plan. Since we are
extremely supportive of these discussions, we find ourselves in the unenviable position of having to
balance our need to be conciliatory in our approach and feedback with our need to formally record our
issues. As such, we will list them along with our stated desire that these issues be discussed in a
constructive and informal process with the owners rather than through a formal process within City Hall.
3. (We understand this is being addressed) The front of the house does not seem to take into account the fact
that the house is placed on a slope - the cut and fill approach appears to result in nesting a "flat land"
house on the side of the hill, which does not take advantage of (and actually appears to fight) the
topographical features of the lot, and also requires possibly higher retaining walls than necessary.
4. We are not particularly fond of the stone exterior for the entrance. While we understand and respect the
fact that these are the owner's choices, we would like to make sure that this has not been an added
requirement by the city which may not necessarily reflect the owner's (or for that matter the neighborhood)
wishes.
5. The privacy protection planting plan drawings are not completely clear. We would like to confirm that there
is a plan to hide the house from the side of the access road and from the residences on the south side of
Lindy Lane and Lindy Place by deploying a screen as close as possible to the road. Given that there is a
generous front setback, the owners would still be able to preserve the English style impression of the
entrance once past the privacy screen, while still protecting whatever is left of the rural character of the
north side of Lindy Lane.
6. From the point of view of compromises on size and/or scale, we would have no issues of supporting an
expansion of the house up to 5,500 sq ft. and/or increase of height of the two front turrets, as long as
privacy concerns are satisfied through the use of appropriate screening and as long as the height and
placement are coordinated with the neighbors.
We really appreciate the effort that you and the rest of the staff are investing in trying to get our community to
worKt-ogmnenoward a peaceful-sotatlon.
Best Regards
Luciano & Cristina Daile Ore
Luciano V. Daile Ore 122101 Lindy Lane I Cupertino, CA 95014 U.S.A. I m. +1 (408) 962-48041 h. +1 (408) 257-
2-9
5/28/2008
Colin Jung
From:
Sent:
To:
Subject:
Bob Rodert [brodert@comcast.net]
Tuesday, May 27,200812:20 PM
Colin Jung
Re: Responses to your questions about the Two-Story Residential Permit for 21947 Lindy
Lane: R-2008-14 & RM-2008-16
The excellent photograph clarifies everything, Colin. I'd forgotten that
there's a third lot up there. That's going to one cozy hillside when the
Lot 2 house is finished! Thanks for the clarification.
Bob Rodert
21912 Lindy Ln
Cupertino
257-2607
Colin Jung wrote:
> Bob:
>
> Attached is an aerial photograph of the property. You may know it as Lot # 2 qf the
Moxley subdivision, the vacant lot next to the Mittals and across the driveway from Frank
Sun. It has story poles on it that should be visible once you walk a ways up the
driveway.
>
> There are two large oaks at the rear of the property that are unaffected by the
development. There are also five recently planted oak trees on the lot that was required
mitigation for previous tree removal on the property-- four in the rear along and a fifth
in the front. All should be on the landscape plan.
>
> Colin Jung.
> Senior Planner
> City of Cupertino
>
> 408-777-3257
> <<R-2008-14 Vicinity Map.doc>>
>
1
2-10
Colin lung
Senior Planner
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
May 28, 2,008
Hardcopy via Mail
Dear Colin:
I am writing to you regarding the proposed residence at 21947 Lindy Lane. I live adjacent at
21943 Lindy Lane, which is the East neighbor. Unfortunately, I am unable to approve the
proposed drawings as submitted for the following reasons:
1. There are inaccuracies and discrepancies on the location of the retaining wall in relation
to the property line on different pages (there may be other inconsistent depictions, but I
only checked a few dimensions).
2. The height and proximity of the proposed retaining wall is of extreme impact - more than
10 feet as drawn on the front elevation and section and only six feet away from the
property line
3. Privacy regarding the 2nd floor balcony and landscape screening that has been proposed
In reviewing the drawings provided by the city of Cupertino, I found that there are inaccuracies
in the distance between the property line and the proposed retaining wall closest to my property.
It has been represented as six feet on the Topo and Grading plan, but is reflected as eight or even
ten feet on the Elevations and Section, while the dimensional setback still remains at 14 feet 7/8
inch. Thus, it looks like there are different widths of the driveway (area between retaining wall
and garage). The scale used on the cross-sections and the elevations provides additional distance
depicting more openness between the two properties than what is planned to be built, which is
misleading. Based on the dimensions on the topographical plans, there is six feet between the
property line and the retaining wall, which creates a very tall retaining wall to be in very close
proximity to my property. I have a concern of the location of retaining wall, where it is only six
feet from the property line and thus too close to my property.
The walkway that I have adjacent to the proposed project sits approximately six feet below the
exposed base of the proposed retaining wall. Thus the retaining wall starts at a point that is six
feet above the grade of my rear walkway. Ifwe add the six feet starting point, plus the ten feet
retaining wall (that is only 6 feet away from the property line) plus an additional 25 feet of house
creates 41 feet of structure that is just 15 feet away from the property line (see the attached
diagram). With this retaining wall so close to my property, this creates an extreme impact on my
property, where anyone who walks the walkway will have a towering structure above them and
there will be loss of sunlight along the rear of my house.
Instead of a solid-ren-foot retaining wall, other city engineers lypicalty-atlow a four foot retaining
wall with an inset of four feet for another four foot retaining wall, and finally another four feet
inset and then the retaining wall, so that there can be planting and a stepped scale to the vertical
element, not to mention the stepped loading on the walls. The landscaping that is being used to
2-12
screen the vertical element is an Evergreen Creeper Vine, which at the specified size (per a
landscaper) can take four to eight years to fill in and soften the wall. If cinder-block is used, a
split-face block would soften the wall and provide attachment for the vines, which would be
preferred to just a cement wall.
The privacy for our property is at issue, since there is insufficient screening for the house. The
concern is the 2nd floor balcony will over look my backyard. Three 25-foot high shrubs (which
are not called out on the legend) are proposed as well as two IS-gallon plums, but the proposed
2nd floor balcony of my neighbor sits well above the shrub and the plum and thus they will look
over these plantings and directly into my backyard. Further, in speaking with a landscaper this
shrub typically comes in IS-gallon size and typically start at 4-6 feet tall. The landscaper further
stated that these shrubs grow approximately 1-2 feet a year, which translates into 10 to 20 years
of growth prior to reaching 25 feet. I am open to recommendations on how to alleviate our
pnvacy Issue.
I met with Shesha regarding these issues and he committed that he would limit the retaining wall
to less than six feet in height, but stated that that he most likely would not be able to move the
retaining wall further away from the property line. Even with a six foot retaining wall, there is
still a significant narrowing affect because of the close proximity of the retaining wall. We
would like to see the retaining wall move further away from the property line and possibly step
the retaining wall to eliminate this crowding/towering affect.
I am willing to work with Shesha. If revised plans address my all of my concerns satisfactorily, I
will with withdraw my objection and approve the revised plan.
If you have any questions, please feel free to contact me at (408) 828-1210.
Thank you,
Edward Chan
21943 Lindy Lane
2-13
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JEFFREY B. HARE
Attorney at Law
A Professional Corporation
501 Stockton Avenue
SanJose California 95126
Tel: 408-279-3555 Fax: 408-279-5888
JbhlaW@pacbell.net
May 28, 2008
STEVE PIASECKI
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF CUPERTINO
10300 TORRE AVENUE
CUPERTINO, CA 95014
RE: COMMENTS RE: RESIDENTIAL DESIGN REVIEW
MINOR RESIDENTIAL PERMIT FOR 21947 LINDY LANE
R-2008-14 AND RM 2008-16
Dear Mr. Piasecki:
Seema Mittal and Sarvesh Mahesh, owners of the property located at 21949 Lindy
Lane, Cupertino,.haveretained my law office in connection to the pending application for
a Minor Residential Permit and Residential Design Review for the adjoining property at
21947 Lindy Lane (hereinafter the "Subject Parcel"). Ms. Mittal and Mr. Mahesh oppose
the Application for the reasons set forth herein.
While it is our understanding that the "decision" to be made on Thursday, May
29, is not a hearing per se, but instead is a staff-level review of the application, we also
understand that it would be appropriate to submit a summary of our issues and concerns
with the project. It is our hope that a mutually satisfactory solution that satisfies the letter
and intent of the City's ordinances and guidelines can be achieved.
Background
As you are probably aware, my clients purchased the property at 21949 Lindy
Lane in February, 2005, after having conducted a thorough and comprehensive review of
the City of Cupertino zoning regulations, discussions with Staff of the Community
Development Department, as well as a studied review of the approved plans for not only
their site, but the adj acent site which is now the subj ect of this application for design
reVIew.
Ms. Mittal is a licensed Architect, and she took extraordinary measures to design
her property not only to conform to the City's existing design standards, but also to
2-15
Design Review
May 28, 2008
Page 2
incorporate energy efficient design elements to the maximum extent possible.
Specifically, Ms. Mittal designed the south eastern exposure to maximize use of passive
solar energy for both heating and lighting, as well as created a breezeway design for
natural cooling, and took other steps to significantly reduce overall dependence on the
use of mechanical heating and cooling systems. The completed design also included
elements to take advantage of the wonderful views of the lights of the valley floor, as
well as the sunrises during all times of the year. My clients proceeded with the
construction of their home with the explicit understanding that zoning regulations
implemented on March 1, 2005, imposing a residential hillside overlay on the R1 zoning
district in the hillside area, would limit the size of any structure on the adjoining property
to around 3,500 sq. ft. and placing a 45% cap on the size of the upper floor (around 1,000
sq. ft.), thus preserving their views and privacy.
On April 18, 2008, my clients saw the story poles that had been constructed for
the subject parcel, and shortly thereafter, learned for the first time that the City of
Cupertino had adopted Ordinance 07-2011, which amended Chapter 19.28 of the
Municipal Code to relax the restrictions on development within a IS-lot area. The
amendments, it turns out, allowed design plans that were drastically different than the
previously approved plans for the subject parcel. The new design plans include a
doubling of the second story area (from around 1,000 sq. ft. to over 2,500 sq. ft.), and
additional elements that will cause the proposed structure to exceed all reasonable
parameters of mass and scale for the parcel. These modifications drastically alter the
previously approved design that was the basis of my clients' design. The placement and
orieiltation of the elevated portions of the proposed structure will effectively defeat the
passive solar design elements incorporated by my clients, and completely obstruct city
light views from all living spaces, in direct contravention of the purpose and intent of the
Ordinance.
Zoning Regulations
The proposed development of the subject parcel appears to be inconsistent with
the letter and intent of the City's single-family residential development regulations. As
set forth in Section 19.28.010, the purpose of the Single Family Residential (R1) zones is
to "create, preserve and enhance areas suitable" for development in order to :
A. Enhance the identity of residential neighborhoods;
B. Ensure provision of light, air and a reasonable level of privacy. ..
C. Ensure a reasonable level of compatibility in scale of structures within
residential neighborhoods;
D. Reinforce the predominantly low-intensity setting in the community.
2-16
Design Review
May 28, 2008
Page 3
Section 19.28.050, which was amended by Ordinance 07-2011 in October, 2007,
expressly identifies the hillside area within which the subject parcel is located, and
provides that any second floor area and balcony "shall be consistent with the
requirements from the Residential Hillside (RHS) Zoning District (Chapter 19.40). This
Ordinance also provides that the purpose of the RHS zoning district is to regulate
development commensurate with community goals as set forth in the General Plan, and to
ensure that utilization of land for residential uses is balance with the need to conserve
natural resources and protect life and property from natural hazards. Toward that
objective, the purpose of the RHS regulations includes the following:
B. Ensure the provision of light and air to individual residential parcels;
C. Ensure a reasonable level of compatibility in scale of structures within
residential neighborhoods;
D. Maintain a special relationship between structures and within neighborhoods;
E. Reinforce the predominantly low-intensity setting of the community;
F. Maintain a balance between residential development and preservation of the
natural hillside setting.
Pursuant to Section 19.40.130, the Director of Community Development is
empowered to make reasonable interpretations of the regulations and provisions of the
RHS Ordinance, "consistent with the legislative intent thereof." (~19.40.130). In
reviewing an application for a Minor Residential Permit, the Director can approve,
conditionally approve, or deny the application. The application can be approved only if
the Director makes all of the following fmdings:
1. The project is consistent with the Cupertino General Plan, any applicable
specific plans, zoning ordinances and the purposes of this title.
2. The granting of the permit will not result in a condition that is detrimental or
injurious to property or improvements in the vicinity, and will not be
detrimental to the public health, safety or welfare.
3. The proposed project is harmonious in scale and design with the general
neighborhood.
4. Adverse visual impacts on adjoining properties have been reasonably
mitigated. (~19.28.090).
2-17
Design Review
May 28, 2008
Page 4
Violations of Zoning Ordinance
My clients respectfully submit that the proposed development of the subject
parce110cated at 21947 Lindy Lane does not conform with either the letter or the intent of
the above-references provisions of the City's zoning regulations.
1. Project creates significant and adverse impact to passive solar design.
Both the R1 and RHS zoning ordinances expressly state that a fundamental
purpose of the respective ordinances is to ensure provision oflight and air. As noted
previously, the dwelling at 21949 Lindy Lane was deliberately designed by Ms. Mittal to
maximize the potential for passive solar heating, and to maximize the use of natural
lighting with the southern exposure. The placement of the story poles made it suddenly
apparent that the revised plans for the subject parcel would significantly and adversely
impact these features which were carefully designed in reliance on the previous1y-
approved plans. Not only will the proposed project significantly reduce my clients'
access to passive solar energy and natura11ighting, but their access to views of the lights
of the valley and to views of the sunrises during certain times of the year will be
obliterated. Moreover, the mass depicted by the story poles do not include the elevated,
second-story covered deck.
Here, the Design Guidelines are fairly explicit, stating, in pertinent part, as
follows:
Solar Design.. The setback and height restrictions provided in this chapter
may be varied for a structure utilized for passive or active solar purposes,
provided that no such structure shall infringe upon solar easements or
adjoining property owners. (~19.28.060(I)(Emphasis added).
One need only review the proposed mass and scale of the proposed structure to
see immediately that it would severely impact the passive solar features so carefully and
thoughtfully incorporated in the design of the uphill property by Ms. Mittal.
2. Project is not harmonious in scale and design with the adjoining properties.
There are several indicia of possible violations of the design guidelines that relate
to the overall massing and scale of the proposed structure. For one, the City's ordinance
provides a limitation of a maximum exterior wall height measured from the natural grade
measured at the property line, and a twenty-five degree roofline angle measured from the
ten-foot high line. (~19.28.060(G)(2)(a)). As seen in the diagrams distributed to the
neighbors, the building envelope exceeds these restrictions by several feet, in some
instances because the measurements were taken from the finished pad, and not the natural
grade. In addition, the project includes a covered, SOO-square foot upper story deck that
adds a significant amount of mass to the second story that is not depicted bv the story
poles.
2-18
Design Review
May 28, 2008
Page 5
The lower lot (Lot 3) has a 1200 sq. ft. upper story. The upper lot (my clients'
lot) has 1300 sq. ft. of upper story. The proposed project will have a 2,500 sq. ft. upper
story mass (including the covered deck not depicted by the story poles). Because of
previously imposed restrictions, the predominant size ofthe upper stories were limited to
around 35% of the lower story mass.
3. Retaining Walls are provo sed less than 5 feet from prolJertv line. and
potentially threaten existing support piers for the uphill property.
The proposed drawings depict a series of lightwell retaining walls located less
than 5 feet from the property line - in violation of the minimum setback requirements.
Section 19.28.060(F) specifically states that the minimum side setback for a lightwell
retaining wall shall be five feet. Of equal concern to my clients, it is anticipated that the
installation of these retaining walls will require extensive digging and excavation in and
around the area where my clients placed the support piers for their property. Section
19.28.100(D), which sets forth the required findings for approval ofa two-story
residential permit, includes a finding that:
The granting of the permit will not result in a condition that is detrimental or
injurious to property or improvements in the vicinity, and will not be detrimental
to the public health, safety or welfare. (~19.28.100(D)(2)).
Here, the slope of the land approaches a 30% grade. In addition to their concern
over the generous allowance that permits the homeowner the right to grade up to 2,500
cubic yards on a lot that measures less than one-half acre, my clients are extremely
concerned that the tJ::enching and grading necessary to locate the lightwell retaining walls
this close to their property poses a serious risk of failure of the hillside integrity.
4. Based on the proposed design of the proiect. the Director cannot make all of
the necessary findings required under the Municipal Code.
Section 19.28.090 sets forth the findings that the Director of Community
Development must make - and must make all of them - in order to approve an
application for a Minor Residential Permit. As explained herein, the project is not
consistent with the Cupertino General Plan, the zoning ordinances, and the stated
purposes of Title 19. Approval of the permit will very likely result in a condition that is
detrimental or injurious to property or improvements on the adjoining lot, and in the
event of major slope failure, could pose a real risk to the public health, safety and
welfare. The project, with its mass and scale, is clearly not harmonious with the other
structures in the neighborhood, especially with a second story that is at least twice the
size of the second story elements of the properties on either side. Furthermore, the
adverse visual impacts, as well as the adverse impacts on the passive solar elements of
the uphill property, have not been reasonably mitigated.
2-19
Design Review
May 28, 2008
Page 6
Conclusion
My clients respectfully therefore request that the proposed application be denied
for the reasons set forth herein, and that the project applicants be directed to return with
an application that meets both the letter and intent of the City of Cupertino General Plan
and zoning regulations.
Request for Notice and Copies of Documents
In addition, I request that you place my law office on the distribution list for all
notices of any actions related to this matter. Further, I request that I be provided with
copies of any and all letters, e-mails and other documents which have been submitted in
connection with the pending application for the subject parcel.
Respectfully submitted,
~~
cc: Colin lung, Senior Planner
Charles Kilian, City Attorney
Clients
2-20
Colin Jung
From:
Sent:
To:
Subject:
ronberti@comcast.net
Monday, July 14, 200810:00 AM
Colin Jung
21947 Lindy Lane
Hi Colin
I received a letter last week from the Planning Department to the effect that there's a
hearing on 21947 Lindy Lane on July 22nd. Unfortunately~ I will be out of town on that
day.
I assume that this is largely a pro forma event, that the plans have largely been signed
off and validated as consistent with city policy.
The one question I have is that one agenda item addresses a side facing second story
balcony. I'm curious if the balcony faces southeast or southwest, which is the only
circumstance in which I really care. You may know that this new home will look directly
at mine across the small Lindy Lane valley.
Perhaps we could have a short discussion this week? You can call my cell (408) 515-5111.
Looking forward to hearing from you.
Ron Berti
11406 Lindy Place
1
2-21
R\ o~c\~~LR...
19.28.060
Cupertino - Zoning
EXHIBIT B
5. The perimeter of the basement and all lightwell
retaining walls shall be treated andlor reinforced with the
most effective root barrier measures, as determined by the
Director of Community Development.
G. Height.
1. Maximum Building Height. The height of any
principal dwelling in an R1 zone shall not exceed twenty-
eight feet, not including fireplace chimneys, antennae or
other appurtenances.
2. Building Envelope (One Story).
a. The maximum exterior wall height and building
height on single-story structures and single-story sections of
two-story structures must fit into a building envelope defmed
by:
1. A ten-foot high vertical line from natural grade
measured at the property line;
2. A twenty-five-degree roof line angle projected
inward at the ten-foot high line referenced in subsection
G(2)(a)(1) of this section.
b. Notwithstanding the building envelope in
subsection G(2)(a) of this section, a gable end of a roof
enclosing an attic space may have a maximum wall height of
seventeen feet to the peak of the roof as measured from
natural grade, or up to twenty feet with a Minor Residential
Pernrit. .
3. Second Story Wall Heights. Fifty percent of the
total perimeter length of second story walls shall not have
exposed wall heights greater than six feet; and shall have a
minimum two-foot high overlap of the adjoining first story
roof against the second story wall. The overlap shall be
structural and shall be offset a minimum of four feet from
the first story exterior wall plane.
a. The Director of Community Development may
approve an exception to this regulation based on the fmdings
in Section 19.28.110 D.
4. Entry Feature Height. The maximum entry
feature height shall be fourteen feet.
5. Areas Restricted to One Story. The City Council
may prescribe that all buildings within a designated area be
limited to one story in height (not exceeding eighteen feet)
by affixing an "i" designation to the R1 zoning district.
H. Second Story Decks. All new or expanded second
story decks with views into neighboring residential side or
rear yards shall fIle for a Minor Residential Pernrit, subject
to Section 19.28.090, in order to protect the privacy of
adjoining properties. The goal of the pernrit requirement is
not to require complete visual protection' but to address
privacy protection to the greatest extent while still allowing
the construction and use of an outdoor deck. This section
applies to second-story decks, patios, balconies, or any other
similar unenclosed features.
1. A second-story deck or patio may encroach three
feet into the front setback for the principal dwelling.
2005 S-4
2. The miitimum side-yard setback shall be fifteen
feet.
3. The minimum rear-yard setback shall be twenty
feet.
I. Solar Design. The setback and height restrictions
provided in this chapter may be varied for a structure
utilized for passive or active solar purposes, provided that
no such structure shall infringe upon solar easements or
adjoining property owners. Any solar structure that requires
variation from the setback or height restrictions of this
. chapter may be allowed only upon issuance of a Minor
Residential Pernrit subject to Section 19.28.090..
(Ord. 1954, (part), 2005; Ord. 1868, (part), 2001; Ord.
1863, (part), 2000; Ord. 1860, ~ 1 (part), 2000; Ord. 1834,
(part), 1999: Ord. 1808 (part), 1999; Ord: 1799 ~ 1, 1998;
Ord. 1784, (part), 1998; Ord. 1637, (part), 1993; Ord.
1635, (part), 1993; Ord. 1630, (part), 1993; Ord. 1601,
Exh. A (part), 1992)
19.28.070 Landscape Requirements.
To mitigate privacy impacts and the visual mass and
bulk of new two-story homes and additions, tree and/or
shrub planting is required. The intent of this section is to
provide substantial screening within three years of the
planting.
A. Applicability. This requirement shall apply to new
two-story homes, second-story decks, two-story additions,
or modifications to the existing second-story decks or
existing windows on existing two-story homes that increase
privacy impacts on neighboring residents. Skylights,
windows with sills more than five feet above the finished
second floor, windows with permanent, exterior louvers up
to six feet above the finished second floor, and obscured,
non-openable windows are not required to provide privacy
protection planning.
B. Privacy Planting Plan. Proposals for a new two-
story house or a second story addition shall be accompanied
by a privacy planting plan which identifies the location,
species and canopy diameter of existing and proposed trees
or shrubs.
1. New trees or shrubs shall be required on the
applicant's property to screen views from second-story
windows. The area where planting is required is bounded by
a thirty-degree angle on each side window jamb. The trees
or shrubs shall be planted prior to issuance of a fmal
occupancy pernrit.
a. New tree or shrubs are not required to replace
existing trees or shrubs if an Internationally Certified
Arborist or Licenses Landscape Architect verifies that the
existing trees/shrubs have the characteristics. of privacy
planting species, subject to approval by the Director or
Community Development.
2-22
\<. ~s o~ ~\ Nt.M.UJ..-.
19.40.050
Cupertino - Zoning
Exhibit C
feet on lots which are greater than one acre. The setback
shall be measured from the top of bank of the watercourses
or from existing riparian vegetation. whichever is greater.
The setback from riparian vegetation will be measured from
the drip line perimeter.
I. Development Near Prominent Ridge1ines.
1. The development of new, independent structures
shall not disrupt a fifteen percent site line from a prominent
ridge as identified in Appendix A. The fifteen percent site
line shall be measured from the top of ridge at the closest
point from the structure.
2. Additions to legally existing homes located within
the fifteen percent site line of a prominent ridgeline may not
further encroach into the site line, e.g., the addition may not
add height or bulk which may increase the disruption to the
fifteen percent ridgeline site line.
3. Should these requirements become impractical,
alternatives will be considered through the exception
process.
J. Development on Slopes of Thirty Percent or
Greater.
1. Site plans for all development proposals shall
include topographical information at contour intervals not to
exceed ten feet and a horizontal map scale of one inch
equals two hundred feet or larger. Areas where slopes
exceed thirty percent shall be identified on the site
development plan.
2. No structure or improvements shall occur on
slopes greater than thirty percent unless an exception is
granted or unless no more than five hundred square feet of
development. including grading and structures, occurs on
an area with a slope greater than thirty percent.
K. Trail Linkages.
1. Among other items required to be identified on
the site plan, the site plan shall identify trail linkages as
shown in the General Plan Trail Plan, on and adjacent to the
site.
2. If a trail linkage, as shown in the General Plan
Trail Plan, is identified across a property being developed,
no development shall take place within that area except if
approved through the exception process.
L. Views and Privacy. It is not the responsibility of
City Government to ensure the privacy protection of the
building pernlit applicant or owners of surrounding
properties that may be affected by the structure under
construction. However. the Director of Community
Development may confer with the building permit applicant
to discuss alternate means of preventing privacy intrusion
and preserving views. (Ord. 1725, (part), 1996; 000.1658,
(part), 1995; Ord. 1634, (part), 1993)
19.40.060 Building Coverage, Setbacks and Height
Restrictions.
All. provisions of this section may be deviated from
upon an exception granted by the Planning Commission in
accordance with Section 19.40.140.
A. Floor Area.
l.a. For lots with less than ten thousand square feet of
net lot area the maximum floor area ratio shall be forty-five
percent of the net lot area.
Formula: A =;: 0.45 B
A = Maximum allowable house size.
B = Net lot area.
b. For lots with more than ten thousand square feet
of net lot area the maximum floor area shall be four
thousand five hundred square feet plus 59.59 square feet for
every one thousand square feet over ten thousand square
feet of net lot area. In all cases the maximum floor area
shall not exceed six thousand five hundred square feet
without an exception.
Formula:
A = ((B-10,OOO)/I,OOO)(59.59) + 4,500
A = Maximum allowable house size
prior to instituting the maximum
6,500 square foot building size.
R = Net lot area.
2. Lots Within Clustered Subdivisions Containing
Common Open Space. Lots within clustered subdivisions in
which land is reserved as common open space, may count
a: proportionate amount of the reserved private open space
for calculating the allowable house size, except that no
developable lot would be subject to greater than a forty-five-
percent floor area ratio prior to slope consideration. The
average slope of a lot within a clustered subdivision shall be
calculated on the developable lot.
3. Slope Adjustment Criteria. For lots with an
average slope greater than ten percent. the allowable floor
area, prior to instituting the maximum six thousand five
hundred square foot allowable building size, shall be
reduced by one and one-half percent for each percent of
slope over ten percent. For lots with an average slope over
thirty percent the allowable floor area shall be reduced by
a constant thirty percent.
Formula: C =
A=
A x (1-(1.5 x (D - 0.1)))
Maximum allowable house size
based on subsection 1 above
prior to instituting the maximum .
6,500 square foot building size.
Maximum allowable building for
lots with greater than 10%
average slope.
Average percent slope of net lot
area.
C=
D=
2-23
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CHIA-CHING LIN
45741 CHABLIS COURT
FREMONT CA 94539
TEL: (510)-623-0681
FAX: (510)-623-0681
THE KRISHNAPURA'S
NEW RESIDENCE
~
21947 LINDY LANE
CUPERTINO. CA 95014
!" 501
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