PC 11-25-2014 CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
CITY OF CUPERTINO
REGULAR PLANNING COMMISSION MEETING
APPROVED MINUTES
6:45 P.M. NOVEMBER 25,2014 TUESDAY
CUPERTINO COMMUNITY HALL
The regular Planning Commission meeting of November 25, 2014 was called to order at 6:45 p.m. in the
Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA. by Chair Paul Brophy.
SALUTE TO THE FLAG
ROLL CALL
Commissioners present: Chairperson: Paul Brophy
Vice Chairperson: Winnie Lee
Commissioner: Margaret Gong
Commissioner: Don Sun
Commissioner: Alan Takahashi
Staff Present: Assistant Director of Community Development: Gary Chao
Assistant City Attorney: Colleen Winchester
Associate Planner: Colin Jung
APPROVAL OF MINUTES:
1. Draft minutes of October 28,2014 Planning Commission meeting:
MOTION: Motion by Vice Chair Lee, second by Com.Takahashi, and unanimously carried
5-0-0 to approve the October 28,2014 Planning Commission minutes as written.
2. Draft minutes of November 6,2014 Planning Commission meeting:
MOTION: Motion by Com. Takahashi,second by Com. Gong,and carried 4-0-1,Vice Chair
Lee abstained,to approve the November 6,2014 Planning Commission minutes
as written.
WRITTEN COMMUNICATIONS: None
POSTPONEMENTS/REMOVAL FROM CALENDAR: None
ORAL COMMUNICATIONS: None
CONSENT CALENDAR: None
Cupertino Planning Commission 2 November 25, 2014
PUBLIC HEARING:
3. EXC-2014-09,TR-2014-42, Hillside Exception to allow the development of a 5,213 sq. ft.
(EA-2014-07) single family residence with a 1,412 sq. ft.basement on slopes
Darrel Harris (Yao/Li greater than 30%; Tree Removal permit to allow the removal of
Residence) 21730 Rainbow Dr. three specimen size Coast Live Oaks. Postponed from
October 28, 2014 Meeting. Planning Commission decision final
Unless appealed.
Colin Jung,Associate Planner,presented the staff report:
• Reviewed the overhead presentation for the application for Hillside Exception to allow the
development of a 5,213 sq. ft. single-family residence with a 1,412 sq. ft. basement on slopes greater
than 30%, and Tree Removal Permit request to allow the removal and replacement of three specimen
size Coast Live Oak trees.
• He reviewed the proposed site plan,house elevations, geotechnical review, and geologic review. The
city geologist reviewed the reports, conducted his own research and a site visit and concluded that the
project is geotechnically feasible if you follow the structural recommendations of the consultants for
both the house foundation and the retaining walls. The city geologist recommended minimizing the
use of a filtration system as a solution for drainage; instead the city geologist was recommending
what has been applied to other hillside homes, relying on a stormwater detention tank. The city
geologist also recommended that the mass grading not be allowed during the rainy season. He
reviewed the history of the informal trail through Rainbow Drive to the Fremont Older Open Space
Preserve which has been in existence for over two decades and used by local residents. The property
owner has agreed to move the existing easement to a more accessible area in exchange for the city
abandoning the dedicated easement in his front yard; he will create a new pedestrian access easement
through the rear of his property near the same area where the existing informal trail exists. It is
uncertain how much of a realignment the property owner would decide he needs to do; if he decides
to realign the trail away from the driveway, he will be required to create a new access across the rear
of his property or sides which may involve some additional grading and switchbacks to create a
usable trail; and also that the trail access to the property must be maintained throughout the life of the
hillside exception and this includes during the residential construction of the project.
• He reviewed the Tree Removal request as outlined in the attached staff report.
• The ERC reviewed the proposal on October 16t" and recommended the adoption of a mitigated
negative declaration; and asked the Planning Commission to look at the feasibility of a trail across the
property. Staff recommends approval of the hillside exception per the findings and approval of the
tree removal request per the findings.
Staff answered Commissioners' questions.
Colin Jung:
• Said staff does not feel the existing easement is very usable as it is too steep; it was never improved
and goes through two properties. While there is an option of creating an improvement across the
property for that established easement, they don't have the authorization or approval to cross the
adjacent neighbor's property; it would be similar to a small trail segment that would stop at the
property line. Staff prefers the existing alignment or new alignment that creates the same access to the
land and has lined up the approvals with the adjacent property owners, for real access vs. future
access.
Cupertino Planning Commission 3 November 25,2014
City Attorney:
• The city has an existing easement elsewhere on the property;the people who own the property are the
applicants and the city has an easement going across but in a location that is not being used; then the
city would vacate that easement and acquire the easement where the used trail currently is or in
another alignment.
Colin Jung:
• Said one of the adjacent property owners is an avid user of the trail and has said she would be willing
to sign off on an easement that would cover that portion of the road. The adjacent property owner is
Barry Barnes who does business with the city and he said he did not have an issue with granting the
easement and he did not ask for any compensation.
Gary Chao:
• Said that Barry Barnes' would have to sign for the easement to formally take place on his property.
There needs to be other conversations with everyone using the driveway, especially at the terminus of
Rainbow Drive that has a gate blocking vehicular access, where people merely walk around the gate.
A more formal definitive pedestrian path needs to be carved out to allow a more formal entrance to
the area.
Com. Takahashi:
• Asked if after gaining full legal access through the easements, would the trail then be more formally
recognized with signage?
Colin Jung:
• He reiterated what he said in terms of the other conversations they need to have with other neighbors
including the applicant later because when you approach the terminus Rainbow you are presented
with a big gate and if you don't know better you wouldn't trespass or attempt to go around it. They
could talk to the group of owners who benefit from that entry point later on to figure out a good way
of dealing with the issue. There are some security issues, but it is desirable to have an access point
for the pedestrians,where they can see it and not be turned away from using it.
Com.Takahashi:
• For the two tree removals that staff is recommending, is it possible to have some type of conditional
element associated with the removal of those trees, i.e., move forward with the project, determine if
the trees are indeed detrimentally impacted or dying and removed after the fact to see if they possibly
could survive.
Gary Chao:
• Said the Planning Commission could provide staff the direction for them to work with the applicant
and city arborist to try to save those trees to the maximum extent possible. The applicant will be
responsible for providing the trail improvements. If he decides to eliminate the access point which is
likely because of the intersection with the driveway, he will have to create alternative access; either
condition 33 or 34 in resolution.
Chair Brophy:
• Addressed the issue of compliance with the fire department's standards relative to turnaround where
they want to be able to do it even if there are cars parked there. This would account for a large
amount of the grading. He said he understood the concern of the fire dept. in having access to a
property in case of emergency,but given the concern about doing an undue amount of grading, could
they go back to the fire dept. to see if there is a way that cannot only save the applicant money but
Cupertino Planning Commission 4 November 25, 2014
also deal with the long term issue of whether or not grading affects the risks of landslide despite
doing state of art design.
Colin Jung:
• Said they worked with the fire dept. and the design of the turnaround does reflect the fire dept.
requirements for their trucks, and is there an opportunity to go back to the fire dept. and ask if that is
necessary or is there another alternative to minimize the flat area they are asking for. He said that if
the Commission desires, they can direct staff to work with the applicant to have that conversation
with the fire dept. that the Commission desires to minimize grading. Are there any alternatives?
They need that amount of space and see if there is any other less impactful turnaround.
Daryl Farris,Architect:
• Commended Colin Jung on the excellent report; said they were pleased with the outcome and are
willing to work with the conditions as stated.
Chair Brophy opened the public hearing.
Rose Ann Wolpert,Rainbow Drive:
• Said she has been using the trail for many years and appreciates that it is maintained. Her main
concern is that they would be able to still use it. She questioned the timing of the trail installation;
and asked if the new switch backs which will be needed are going to be installed ahead of time,
because if they are not, the proposed area is very steep. She said she would like to see that happen
before the other part of the trail is blocked.
• Said she shared ownership of the private drive with the applicant and also with another neighbor and
was concerned that the road would likely be damaged during construction; and asked whether it is
possible to have a performance bond or some assurance that will fund any damage to the roadway.
Lisa Giefer,Regnart Rd.:
• Complimented Colin Jung for his hard work as it is difficult to get all the necessary property owners
to agree on what the right thing to do is. Said she and others appreciated having the trail which she
has used for more than 20 years. The realigned trail is steeper than the existing informal trail; how
will they know what that new trail is going to look like; who will determine what that form factor is?
• The current trail is a deer trail, if considering a lot of switch backs that might also cause erosion
issues in the future. The resolution has information about trail maintenance stating that if a tree does
fall on the trail, the owner is responsible for removing the tree. If torrential rains occur in the future
and the trail gets washed out, who would be responsible and what are the metrics for getting that trail
reestablished? Said she wanted assurances for that issue as well as assurance that they would be able
to use the trail throughout the project; they want unhindered access to the trail throughout the
construction and staging. Said she was grateful that all the property owners are in agreement that
they should continue to have access to that trail.
• Said her home was north of the lull, and she was fortunate to have a view,but had concerns regarding
the retaining walls and screening. The information online doesn't talk about screening the downslope
retaining walls and the upslope retaining walls. Residents who live north of the project will likely
have a clear view and she wants to make sure they are not looking at concrete walls.
• Said she agreed with Com. Takahashi to have the trees slated by staff for removal; give them chance
and see if they survive the construction; if they don't they can be removed later. Said she supported
the project provided they make sure the trail is accessible, it doesn't need to be ADA compliant. She
said she appreciated all the work that has gone into the project so far.
Helene Davis,Palos Verdes Ct.:
0 Said she has also been using the trail for over 20 years, and thanked the homeowners, Mr. Barnes,
Cupertino Planning Commission 5 November 25,2014
Jonathan Yow, Cathy Li and the Wolpert families for agreeing to keep access to the trail. Said she
wanted access to the trail while the project is under construction; her personal feeling about signage
after the trail was complete was not to have any signage; keep it a neighborhood secret,the way it has
been for 25 years. She thanked staff for the work done on the project and expressed her appreciation.
Greemie Van Buren,Rainbow Ct.:
• Said she used the trail once a week and commented that the trail is a little steep, and was the easy way
to get to Fremont Older. She said she was pleased that they were keeping the trail and not getting rid
of the access. She expressed concern that there were many bushes in the area where the new trail will
be and she hoped they would clear the bushes for the new trail and make sure that the trail was
walkable, even if somewhat steep. She said she would like to continue hiking to Fremont Older
Preserve.
Rich Schumacher:
• Said he had been using the trail for many years and appreciated what everyone has done to maintain
access. He said he liked to climb the hill with his mountain bike.
Chair Brophy closed the public hearing.
Chair Brophy:
• Noted receipt of emails, all but one for maintaining the trail access to Fremont Older; one stated
opposition to the removal of three specimen size Coast Live Oak trees, and opposition to hillside
exception to build a 5,000 sq. ft.house.
• Reviewed the concerns voiced by speakers.
1. Ensure that there be unhindered access during the staging and construction of the house.
Colin Jung:
• Stated it was covered under the last condition of exception of resolution, maintenance of pedestrian
access; "property owner shall maintain pedestrian access through the property to facilitate
...............not be unreasonably withheld." That covers it now and prior to the construction of the
house; the applicant will be granting the easement and getting a vacation of the existing easement,
and at that time we will have a better idea when we know where the easement is, what he is thinking
about in terms of the trail access and Public Works Dept. has already been informed of this so they
will be looking at that with an eye toward what improvements need to be made if any on the land to
maintain that trail access.
Chair Brophy:
• Some speakers expressed concern that the new trail would be steeper than the existing one; he asked
if there would be any problem maintaining a steeper slope over time, and how do they know if it will
be designed in a way that will be usable by a reasonable number of people?
Gary Chao:
• Thanked the speakers for their positive comments. Said in terins of maintenance, Ms. Giefer was
correct, there is a condition that requires maintenance. The words "unhindered" and "accessible" are
the key words that relate to the responsibility that the applicant has in terms of maintaining an
accessible,unhindered pathway to and from the Fremont Older preserve.
• To that extent staff will do their best to work with the applicant. They still have the option of keeping
it where it presently is; the goal is to at least come out of it no worse than what exists now in terms of
the grade. Hopefully the new condition will be better; it will be on your path and freshly prepared;
but it is expected to be accessible and unhindered; if a tree falls over, it is the applicant's
responsibility to take care of the tree. If for some reason the trail becomes inaccessible, we can talk to
Cupertino Planning Commission 6 November 25, 2014
the property owner about clearing the path. That is the extent of the maintenance we are expecting
from the trail. The design will be reviewed by the city engineer.
Chair Brophy:
• Asked if there were any issues anticipated relative to the visibility of the retaining wall from
properties to the north?
Gary Chao:
• The presentation shows an unscreened wall, downslope wall; there is a condition under tree
replacement that talks about Oak replacements towards the removed Oak and staff is specifying the
location of those 6 Oaks in front of the downhill sloping walls. Hopefully in a few years, once mature,
they will offer some screening. If the Planning Commission feels that there should be more than the
Oaks, they could specify that staff go back and work with the applicant to look at the design because
it could be stepped down one notch or create another planter wall in front of it so it is more cascaded
or stepped down. There are opportunities to grow vines or plantings for the effect of the 6 Oaks in
front of it and in the backdrop if there are any gaps or openings in between, it will be filled with
vines. There is a pallet of options to consider direct staff and perhaps ask applicant for his opinion.
In terms of the back wall, it is not seen; it is the backside of the house; if there are concerns they can
be discussed with the applicant about putting siding materials on some of the walls that may be
visible so it is more terraced instead of straight wall; realizing some of the terracing features stepping
down strategies potentially you incur more grading because you are cutting into and maneuvering the
dirt more.
Chair Brophy:
• Make sure that as part of the trail any bushes or shrubs will be cleared to make sure it is walkable.
There was also a question about damage to the private road; how do we handle that to the extent the
contractor will have to be coming in on the private road?
Gary Chao:
• Said it is governed by the Public Works Dept., part of the review from Public Works is to look at the
language specified in the easement; the common access easement that is recorded on the applicant's
property. Many of the cases where it talks about maintenance and upkeep or even ex-vacations of the
conditions in which it ought to be maintained; meaning when the property owner goes through the
construction, if they have to open up trenches or modify a portion of the road, Public Works staff is
going to ensure that they restore it back to that stated condition. Many times there are bonds to
ensure that be carried out prior to the final occupancy of the project.
• Staff encourages since there is one adjacent neighbor, that the parties involved get together and sort
out in advance some of the expectations; as a courtesy a construction management plan will be
required so that the timing of construction, hours of construction will be sorted out before
commencement of construction is allowed. Staff encourages conversations and coordination between
the two private parties as well.
Colin Jung:
• Referred to the resolution and discussed the changes to be made. Said that they could add a condition
that the applicant shall prepare a landscape plan to be approved by the Director of Community
Development with the purpose of screening visible retaining walls.
Gary Chao:
• Said the house is pushed as much into the hill as possible. If you want to terrace the front of the wall
you essentially have to build another wall to be in front of it for no purpose other than just create a more
terraced look.
Cupertino Planning Commission 7 November 25, 2014
Colin Jung:
• The hillside standard is that all visible retaining walls and grading cuts need to be screened from
public view and there is already language that it needs to be screened by public view.
Chair Brophy:
• Commented when it first came up at the ERC meeting recently, they potentially could have had a
difficult problem if people wanted to maintain the access through property owned by the applicant
that has been public access for twenty or more years. Often staff ends up refereeing squabbles
between neighbors; he said he appreciated that not only the applicant and his architect, but the
adjoining neighbors and the people nearby who used the trail have worked to find a solution that
works for everyone.He complimented Colin Jung for his hard work in putting the project together.
MOTION: Motion by Vice Chair Lee, second by Com. Gong and unanimously carried 5-0-0 to
approve EXC-2014-09,TR-2014-42 and EA-2014-07,per the model resolutions and
also adding condition that the property owner prepares a landscaping plan to be
approved by the Community Development Director,with the purpose of screening
visible retaining walls;Approve the Mitigated Negative Declaration and accept the
final draft resolution with changes discussed during staff presentation.
Friendly amendment by Com. Gong: To add condition to minimize grading at all
possible situations and also to put forth the best effort to save trees Nos. 6 and 30.
(Vice Chair Lee accepted Com. Gong's friendly amendment)
Chair Brophy:
• Clarified in terms of grading; work with the Fire Department to see if they will consider a design that
would not require as much earth movement.
OLD BUSINESS: None
NEW BUSINESS: None
REPORT OF THE PLANNING COMMISSION:
Environmental Review Committee: Tonight's agenda item discussed. .
Housing Commission: No report.
Mayor's Monthly Meeting With Commissioners: Report at next meeting.
Economic Development Committee: Meeting cancelled for lack of quorum.
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT:
• Written report submitted.
• Dec. 9 — two items being scheduled: minor modification to a previously approved use permit for
Apple Cafeteria; and The Counter Restaurant in the Biltmore retail, coming in for use permit for a bar
Adjournment: Meeting was adjo,tfned to the next Planning Commission meeting on December. 9,2014.
Respectfully Submitted: .6 _ a
Eliz?lS,th Ellis,Recording Secretary
Approved as presented. January 27,2,0/1 S