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PC Packet 1-23-18CITY OF CUPERTINO AGENDA PLANNING COMMISSION 6:45 PM 10350 Torre Avenue, Council Chamber Tuesday, January 23, 2018 PLEDGE OF ALLEGIANCE ROLL CALL APPROVAL OF MINUTES 1.Subject: Draft Minutes of September 12, 2017 Recommended Action: Approve the Draft Minutes of September 12, 2017 Draft Minutes of September 12, 2017 2.Subject: Draft Minutes of September 26, 2017 Recommended Action: Approve the Draft Minutes of September 26, 2017 Draft Minutes of September 26, 2017 3.Subject: Draft Minutes of November 14, 2017 Recommended Action: Approve the Draft Minutes of November 14, 2017 Draft Minutes of November 14, 2017 POSTPONEMENTS ORAL COMMUNICATIONS This portion of the meeting is reserved for persons wishing to address the Commission on any matter not on the agenda. Speakers are limited to three (3) minutes. In most cases, State law will prohibit the Commission from making any decisions with respect to a matter not on the agenda. WRITTEN COMMUNICATIONS CONSENT CALENDAR Unless there are separate discussions and/or actions requested by council, staff or a member of the public, it is requested that items under the Consent Calendar be acted on simultaneously. Page 1 January 23, 2018Planning Commission AGENDA PUBLIC HEARINGS 4.Subject: Consider an appeal of the Director’s decision to approve a Two-Story Permit to allow the construction of a new 2,400 square foot two-story, single-family residence and a Minor Residential Permit to allow for the construction of a new rear and side-facing second-story balcony. (Application No(s).: R-2017-27 and RM-2017-28; Applicant(s): Frank Ho (Sun/Hou residence); Appellant(s): Joseph Chou and Jeff and Christine Ronne; Location: 18850 Barnhart Avenue; APN(s): 375-33-015) Recommended Action: That the Planning Commission adopt the draft resolutions (see Attachments 1 and 2) to deny the appeal and uphold the Community Development Director’s decision to approve a Two-Story Permit (R-2017-27) and Minor Residential Permit (RM-2017-28) for the project. Planning Commission decision final unless appealed Staff Report 1 - Draft Resolution for R-2017-27 2 - Draft Resolution for RM-2017-28 3 - Plan Set 4 - Two-Story and Minor Residential Permits Action Letter 5 - Appellant Chou's Letter and Images 6 - Appellant Ronne's Letter OLD BUSINESS NEW BUSINESS STAFF AND COMMISSION REPORTS ADJOURNMENT Page 2 January 23, 2018Planning Commission AGENDA If you challenge the action of the Planning Commission in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this agenda, or in written correspondence delivered to the City of Cupertino at, or prior to, the public hearing. In the event an action taken by the planning Commission is deemed objectionable, the matter may be officially appealed to the City Council in writing within fourteen (14) days of the date of the Commission’s decision. Said appeal is filed with the City Clerk (Ordinance 632). In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to attend the next Planning Commission meeting who is visually or hearing impaired or has any disability that needs special assistance should call the City Clerk's Office at 408-777-3223, 48 hours in advance of the meeting to arrange for assistance. Upon request, in advance, by a person with a disability, Planning Commission meeting agendas and writings distributed for the meeting that are public records will be made available in the appropriate alternative format. Also upon request, in advance, an assistive listening device can be made available for use during the meeting. Any writings or documents provided to a majority of the Planning Commission after publication of the packet will be made available for public inspection in the Community Development Department located at City Hall, 10300 Torre Avenue, during normal business hours and in Planning packet archives linked from the agenda/minutes page on the Cupertino web site. IMPORTANT NOTICE: Please be advised that pursuant to Cupertino Municipal Code 2.08.100 written communications sent to the Cupertino City Council, Commissioners or City staff concerning a matter on the agenda are included as supplemental material to the agendized item. These written communications are accessible to the public through the City’s website and kept in packet archives. You are hereby admonished not to include any personal or private information in written communications to the City that you do not wish to make public; doing so shall constitute a waiver of any privacy rights you may have on the information provided to the City. Members of the public are entitled to address the Planning Commission concerning any item that is described in the notice or agenda for this meeting, before or during consideration of that item. If you wish to address the Planning Commission on any issue that is on this agenda, please complete a speaker request card located in front of the Commission, and deliver it to the City Staff prior to discussion of the item. When you are called, proceed to the podium and the Chair will recognize you. If you wish to Page 3 January 23, 2018Planning Commission AGENDA address the Planning Commission on any other item not on the agenda, you may do so by during the public comment portion of the meeting following the same procedure described above. Please limit your comments to three (3) minutes or less. Please note that Planning Commission policy is to allow an applicant and groups to speak for 10 minutes and individuals to speak for 3 minutes. For questions on any items in the agenda, or for documents related to any of the items on the agenda, contact the Planning Department at (408) 777 3308 or planning@cupertino.org. Page 4 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 CITY OF CUPERTINO PLANNING COMMISSION MEETING DRAFT MINUTES, September 12, 2017 PLEDGE OF ALLEGIANCE At 6:45 p.m Chairperson Sun called to order the regular Planning Commission meeting in the Cupertino Community Hall Council Chambers, 10350 Torre Avenue, Cupertino, CA. and led the Pledge of Allegiance. ROLL CALL Present: Chairperson Don Sun, Vice Chairperson Geoff Paulsen and Commissioners David Fung, Alan Takahashi, and Jerry Liu. Absent: None APPROVAL OF MINUTES 1.Subject:Draft Minutes of August 8, 2017. Recommended Action: Approve or modify the Draft Minutes of August 8, 2017 Moved by Liu and seconded by Fung. The motion carried 3-0-2 (Sun and Takahashi abstain). 2.Subject:Draft Minutes of August 22, 2017. Recommended Action: Approve or modify the Draft Minutes of August 22, 2017 Moved by Takashi and seconded by Fung. The motion carried 3-0-2 (Paulsen and Liu abstain). POSTPONEMENTS/REMOVAL FROM CALENDAR: None ORAL COMMUNICATIONS: None WRITTEN COMMUNICATIONS: None CONSENT CALENDAR: None PUBLIC HEARINGS: 3.Subject: Conditional Use permit to allow early hours of operation (before 7:00am) for a proposed fitness use (Orange Theory), located within the Main Street Cupertino mixed use development. Application No(s): U-2017-07; Applicant(s): Kendal Riding (Orange Theory Fitness); Location: 19409 Stevens Creek Blvd #120 APN# 316-20-112 Recommended Action:Find the project exempt from CEQA and Approve the application(s) in accordance with the Draft Resolution(s). Associate Planner Gian Paolo Martire reviewed the Staff Report Staff and the Applicant(s) answered questions from the Commissioners Chair Sun opened the public comment period and the following individual(s) spoke: Jennifer Griffin Chair Sun closed the public comment period Moved by Fung and seconded by Paulsen. Motion carried unanimously to approve Application No. U-2017-07, per the Draft Resolution. OLD BUSINESS: None NEW BUSINESS: None REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: Assistant Director Benjamin Fu reminded the Commissioners and the public of the City’s next Speaker Series Event (on the topic of Transportation) to be held on the last Thursday in September at 5:30 in Community Hall. REPORT OF THE PLANNING COMMISSION: Commissioner Fung reported on the topics from the last Mayor’s Monthly Meeting with Commissioners. ADJOURNMENT: The meeting was adjourned at 7:20p.m. to the next regular Planning Commission meeting on September 26, 2017 at 6:45 p.m. Respectfully Submitted: ______/s/Beth Ebben______________________ Beth Ebben, Administrative Assistant CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 CITY OF CUPERTINO PLANNING COMMISSION MEETING DRAFT MINUTES, September 26, 2017 PLEDGE OF ALLEGIANCE At 6:45 p.m Chairperson Sun called to order the regular Planning Commission meeting in the Cupertino Community Hall Council Chambers, 10350 Torre Avenue, Cupertino, CA. and led the Pledge of Allegiance. ROLL CALL Present: Chairperson Don Sun, Vice Chairperson Geoff Paulsen and Commissioners David Fung, Alan Takahashi, and Jerry Liu. Absent: None APPROVAL OF MINUTES: None POSTPONEMENTS/REMOVAL FROM CALENDAR: None ORAL COMMUNICATIONS: Larry Wilson spoke regarding the City’s Residential Hillside (RHS) Ordinance WRITTEN COMMUNICATIONS: A petition was received by the City from the surrounding neighborhood in opposition to Item #1 CONSENT CALENDAR: None PUBLIC HEARINGS: 1. Subject: Use permit to change hours of operation from 7:00a.m. – 11p.m. to 5:00a.m – 9:00p.m. for a proposed business (Starbucks). Application No(s): U-2017-06; Applicant(s): Tamara Shroll (Salas O’Brien); Location: 21725 Stevens Creek Blvd APN# 326-20-059 Recommended Action: Find the project exempt from CEQA and Approve the application(s) in accordance with the Draft Resolution(s). Assistant Planner Jeffrey Tsumura reviewed the Staff Report Staff and the Applicant(s) answered questions from the Commissioners Chair Sun opened the public comment period and the following individual(s) spoke: There were no speakers from the audience for this item Chair Sun closed the public comment period Moved by Liu and seconded by Paulsen. Motion carried unanimously to approve Application No. U-2017-06, per the Draft Resolution. 2. Subject: Mitigated Negative Declaration, Hillside Exception, Two Story Permit and Minor Residential Permit to allow construction of a new 8,962.7 square foot residence on slopes greater than 30%. Application No(s): EXC-2016-07, R-2016-28, RM-2016-26 (EA-2016-01); Applicant(s): Glush Dada (Juan/Qi residence); Location: Lot 1, Lindy Lane APN# 356-25-031 Recommended Action: Adopt a Mitigated Negative Declaration and Mitigation Monitoring Program and Approve the application(s) in accordance with the Draft Resolution(s). Associate Planner Gian Paolo Martire reviewed the Staff Report Staff and the Applicant(s) answered questions from the Commissioners Chair Sun opened the public comment period and the following individual(s) spoke: Larry Wilson Seema Mittal Edward Chan Shesha Krishnapura Sara Arzeno Humberto Arzeno Chi-I Lang Malini Minasandram Mohan Kantrappan Chair Sun closed the public comment period Moved by Paulsen and seconded by Fung. Motion carried unanimously to approve Application No(s).: EXC-2016-07 and EA-2016-01, with modifications to the Draft Resolutions. Applications R-2016-28 and RM-2016-26 were continued to a date uncertain. Per the Commission’s direction, the Applicant will bring a new residential design back to the Commission for approval. OLD BUSINESS: None NEW BUSINESS: None REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: None REPORT OF THE PLANNING COMMISSION: None ADJOURNMENT: The meeting was adjourned at 9:30p.m. to the next regular Planning Commission meeting on October 9, 2017 at 6:45 p.m. Respectfully Submitted: ______/s/Beth Ebben______________________ Beth Ebben, Administrative Assistant CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 CITY OF CUPERTINO PLANNING COMMISSION MEETING DRAFT MINUTES, November 14, 2017 PLEDGE OF ALLEGIANCE At 6:45 p.m Vice Chairperson Paulsen called to order the regular Planning Commission meeting in the Cupertino Community Hall Council Chambers, 10350 Torre Avenue, Cupertino, CA. and led the Pledge of Allegiance. ROLL CALL Present: Vice Chairperson Geoff Paulsen and Commissioners David Fung, Alan Takahashi, and Jerry Liu. Absent: Chairperson Don Sun APPROVAL OF MINUTES: None POSTPONEMENTS/REMOVAL FROM CALENDAR: Item 1. The applicant requested a postponement of their item to a date uncertain after the agenda packet had been published. ORAL COMMUNICATIONS: None WRITTEN COMMUNICATIONS: None CONSENT CALENDAR: None PUBLIC HEARINGS: 1. Subject: Tentative Map application to allow the subdivision of 3 parcels (approximately 1.06 acres) into 5 parcels - 4 residential and 1 common (private street), Tree Removal Permit to allow the removal and replacement of seven (7) protected trees and associated environmental review. (Application No(s).: TM-2015-01, TR-2016-28 (EA-2015-04) Applicant: Welkin International (Cai XingXie); Location: 10234 Scenic Blvd., APN#357-08-014, 047) Recommended Action: The applicant requested a postponement with no new hearing date The following individual(s) spoke: Christina Armstrong Nadine Carlton 2. Subject: Consider an ordinance to establish regulations regarding adult use (recreational) and medicinal marijuana by adding a new Chapter 10.84, Medicinal and Adult Use of Marijuana, in Title 10, amending Chapter 19.08, Definitions, to repeal definitions related to Marijuana and amending Chapter 19.98, Medical Marijuana, to update and reference the newly established Chapter. (Application No(s).: MCA-2017-04; Applicant(s): City of Cupertino; Location: Citywide) Recommended Action: That the Planning Commission adopt the draft resolution recommending that the City Council; 1. Find that the proposed actions are exempt from CEQA; and 2. Adopt an ordinance entitled “An ordinance of the City Council of the City of Cupertino adding Chapter 10.84 titled ``Medicinal and Adult Use of Marijuana” to Title 10 of the Cupertino Municipal Code; amending Section 19.08.030 to repeal Definitions related to Marijuana; and amending Chapter 19.98 to reference the newly adopted ordinance” Principal Planner Piu Ghosh reviewed the Staff Report Staff answered questions from the Commissioners Vice Chair Paulsen opened the public comment period and the following individual(s) spoke: Captain Rich Urena Vice Chair Paulsen closed the public comment period Moved by Liu and seconded by Fung. Motion carried 4-0-1 (Sun absent) to recommend to the City Council approval of Application No. MCA-2017-04, with modifications to the Draft Resolution. 3. Subject: Consider an ordinance to amend regulations in Title 19, Zoning of the Municipal Code with regard to Accessory Dwelling Units, including Chapter 19.08, Definitions, and Chapter 19.112, Accessory Dwelling Units in R-1, RHS, A and A-1 zones. Application No(s).: MCA-2017-05; Applicant(s): City of Cupertino; Location: Citywide Recommended Action: That the Planning Commission adopt the draft resolution recommending that the City Council; 1. Find that the proposed actions are exempt from CEQA; and 2. Adopt an ordinance entitled “An Ordinance of the City Council of the City of Cupertino amending Chapter 19.08, Definitions and Chapter 19.112, Accessory Dwelling Units in R-1, RHS, A and A-1 Zones (Residential Zoning Districts) to conform to new state laws.” Principal Planner Piu Ghosh reviewed the Staff Report Staff answered questions from the Commissioners Vice Chair Paulsen opened the public comment period and the following individual(s) spoke: Morteza Rahnemoon Jennifer Griffin Vice Chair Paulsen closed the public comment period Moved by Fung and seconded by Liu. Motion carried 4-0-1 (Sun absent) to recommend to the City Council approval of Application No. MCA-2017-05, per the Draft Resolution OLD BUSINESS: 4. Subject: Two Story Permit and Minor Residential Permit to allow construction of a new single family residence with a second floor balcony. Application No(s).: R-2016-28, RM-2016-26. Applicant: Glush Dada (Qi/Juan residence); Location: Lot 1 Lindy Lane APN# 356-25-031 Recommended Action: That the Planning Commission adopt the draft resolutions to; 1. Approve a Two Story Permit to allow the construction of a new residence with a Floor Area Ratio of approximately 25%; and 2. Approve a Minor Residential Permit to construct a home with a second story balcony. (This portion of the development proposal was continued from the September 26, 2017 meeting) Associate Planner Gian Paolo Martire reviewed the Staff Report Vice Chair Paulsen opened the public comment period and the following individual(s) spoke: Mackenzie Mossing (SCV Audubon Society) Seema Mittal Chi-I Lang Malini Minasandram Shesha Krishnapura Larry Wilson Frank Sun Charlie Tursi Jonathan Arzeno Sara Arzeno Vice Chair Paulsen closed the public comment period Staff and the Applicant(s) answered questions from the Commissioners Moved by Fung and seconded by Paulsen. Motion carried 4-0-1 (Sun absent) to approve the Application(s) No. R-2016-28 and RM-2016-26, per the Draft Resolutions. NEW BUSINESS: None REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: None REPORT OF THE PLANNING COMMISSION: None ADJOURNMENT: The meeting was adjourned at 9:00p.m. to the next regular Planning Commission meeting on December 12, 2017 at 6:45 p.m. Respectfully Submitted: ______/s/Beth Ebben______________________ Beth Ebben, Administrative Assistant PLANNING COMMISSION STAFF REPORT Agenda Date: January 23, 2018 SUBJECT Consider an appeal of the Director’s decision to approve a Two-Story Permit to allow the construction of a new 2,400 square foot two-story, single-family residence and a Minor Residential Permit to allow for the construction of a new rear and side-facing second- story balcony. (Application No(s).: R-2017-27 and RM-2017-28; Applicant(s): Frank Ho (Sun/Hou residence); Location: 18850 Barnhart Avenue; APN(s): 375-33-015); Appellant(s): Joseph Chou and Jeff and Christine Ronne) RECOMMENDED ACTION That the Planning Commission adopt the draft resolutions (see Attachments 1 and 2) to deny the appeal and uphold theCommunity Development Director’sdecision to approve a Two-Story Permit (R-2017-27) and Minor Residential Permit (RM-2017-28) for the project. DISCUSSION Project Data: General Plan Designation:Low Density (1-6 DU/Ac.) General Plan Neighborhood:Rancho Rinconada Zoning Designation:R1-5 (Single-Family Residential) Allowed/Required Proposed Net Lot Area 5,355 sq. ft. (0.12 acres) Floor Area Ratio (F.A.R.)2,409 sq. ft. (45%)2,400 sq. ft. (44.8%) Lot Coverage 2,677 sq. ft. (50%)2,440 sq. ft. (45.6%) 1st Floor Setbacks Front 20’25’-8” Rear 20’23’-4” Side 5’ each side 5’-1” (each side) 2nd Floor Setbacks Front 25’26’-8” OFFICE OF COMMUNITY DEVELOPMENT PLANNING DIVISION CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 (408) 777-3308 • FAX (408) 777-3333 R-2017-27 & RM-2017-28 18850 Barnhart Avenue January 23, 2018 Page 2 Rear 25’30’-5” Side Combined 25’ (no side less than 10’) Combined 30’-2” (each side - 15’-1”) 2nd Floor Balcony Setbacks Front 20’N/A Rear 20’25’ Side 15’15’-1” (east side) 21’-6” (west side) Total Building Height 28’26’-7” Project Consistency with: General Plan:Yes Zoning:Yes Environmental Review:Categorically Exempt per Section 15303, Class 3 of the California Environmental Quality Act (CEQA) Background: On August 10, 2017 the applicant, Frank Ho (Sun/Hou residence), applied for a Two- Story Permit to allow a new 2,400 square foot two-story, single-family residence and a Minor Residential Permit to allow a second-story balcony on the new residence located at 18850 Barnhart Avenue (see Attachment 3). The property is located in the R1-5 zoning district, which permits two-story homes, up to 28-feet in height, with a maximum Floor Area Ratio (FAR) of 45% of the net lot area. No design review was required for this project since the ratio of the proposed second- floor to the first-floor area is less than 66% and at least 15-foot second-floor side yard setbacks have been provided. Additionally, views from the second story balcony were screened as required by the City’s Municipal Code. Conditions of approval ensured that all privacy screening trees would be recorded as protected trees prior to final occupancy to ensure their maintenance and protection. Staff received written comments from three adjacent property owners during the comment period. The concerns are summarized below: Potential privacy impacts from the proposed second-story balcony. Reduction of natural light from the proposed new two-story residence. A proposed chimney on the west side of the residence. This concern was allayed prior to approval of the permits since the chimney is decorative. R-2017-27 & RM-2017-28 18850 Barnhart Avenue January 23, 2018 Page 3 Following the comment period, the property owner met with appellant, Joseph Chou, several times to discuss the concerns regarding the proposed balcony and the reduction of natural light. However, the two parties were unable to reach an amicable solution. Since the project is consistent with all aspects of Chapter 19.28, Single-Family Residential (R-1), of the Municipal Code, and other pertinent City ordinances, the project was approved administratively on November 7, 2017 without any modifications to the plans or additional conditions of approval (Attachment 4). The deadline to appeal the project was November 21, 2017. The approval of the Two-Story Permit and Minor Residential Permit was appealed by Joseph Chou on November 20, 2017 (Attachment 5) and by Jeff and Christine Ronne on November 21, 2017 (Attachment 6). DISCUSSION: Basis of the Appeal The appellants’ basis of appeal is summarized below. Where appropriate, staff's responses are in italics. Appellant Chou: 1. “The newly proposed two-story house with balcony is sharing the backyard fence with my house. My family has been living in our house for eight years. We enjoy open our windows and having natural light coming into our house and yard. The second- story balcony gives the occupants the ability to see into neighbors’ yards and houses. This is a privacy concern.” The Single-Family Residential (R-1) Ordinance allows the construction of second-story balconies as long as, prior to final occupancy, the property owner: Either plants privacy protection trees and/or shrubs as required by the ordinance, Or obtains signed “Release of Privacy Protection Measures” forms from adjacent neighbors to waive the required privacy protection plantings. The objective of privacy protection plantings is to provide substantial (not complete) screening within three years of planting. Privacy protection plantings are considered Protected Trees under the City’s Municipal Code (Chapter 14.18) and are recorded as such with a covenant against the property to inform current and future property owners about their protected status. Protected trees cannot be removed without obtaining a tree removal permit and providing replacement plantings. In order to ensure that visual impacts to the adjacent neighbors are mitigated in compliance with the R-1 Ordinance, the property owner has both, incorporated existing plantings on the R-2017-27 & RM-2017-28 18850 Barnhart Avenue January 23, 2018 Page 4 subject property that meet the City’s requirements for privacy protection plantings, and proposed additional City-approved privacy protection plantings. 2. “My family has planted sun loving plants along our backyard fence. If the neighbor plants multiple tall privacy trees, it would affect the growth of our plants. I do not see a study of the privacy trees that would cause the loss of natural light, in particular of sunlight to our property. We do not feel we have to alter our life style to accommodate the new construction.” One of the purposes of the R-1 Ordinance is to ensure the provision of light, air, and a reasonable level of privacy to individual residential parcels through the requirements incorporated in the ordinance. Building envelope requirements for the first floor portions of the building, and increased setback requirements for the second-floor ensure that a reasonable level of light and air is available for neighbors, while privacy protection plantings mitigate privacy impacts and the visual mass of two-story residences. The R-1 Ordinance does not require applicants to provide studies on light impacts to adjacent properties, if the prescriptive requirements in the ordinance are met. The proposal for 18850 Barnhart Avenue meets, and at times exceeds, all setback requirements for the R1-5 zoning district. While the R-1 Ordinance requires a 20-foot rear yard setback for second-story balconies, the proposed second-story balcony for 18850 Barnhart Avenue exceeds this requirement by being setback 25-feet from the rear property line. 3.“In the past eight years, I have gone to quite a few open houses that featured two- story houses with rear balconies in Rancho Rinconada. I have yet to see a house that cannot look into neighbors’ properties. It really bothers me that City of Cupertino is allowing such construction that could easily see into neighbors’ yards and houses.” See response #1. 4. “When I first filed the protest about the balcony, Yunfeng Hou, the owner, met with me on October 29th. We talked about my privacy concern, but did not come to an agreement. Mr. Hou and I talked on November 2nd. He told me verbally, yes, he went to a few second floor balconies and saw quite a bit of neighbors’ properties. However, his architect told him making a design change was quite an effort and my appeal/protest would delay the building process. Mr. Hou followed up with an e- mail, stating he had seen, ‘…much worse setup, and yet, those designs got approved…’ This tells me Mr. Hou is aware that the second-story balcony is intruding into neighbors’ privacy.” No comment. R-2017-27 & RM-2017-28 18850 Barnhart Avenue January 23, 2018 Page 5 5. “On November 19 th, I went to two newly completed houses that have similar lot sizes and rear balcony designs as Mr. Hou’s project. The owner at 19025 Pendergast Avenue turned down my request to take a look from his balcony. He did state that he could look into many neighbors’ properties…I have taken a picture of 19025 Pendergast Avenue’s balcony from Barnhart Avenue. It is clear that if I can take a picture of the balcony from one street behind this property, this balcony can see into quite a bit of neighbors’ properties.” See response #1. The applicant and/or property owner for 19025 Pendergast Avenue obtained a signed “Release of Privacy Protection Measures” form from adjacent neighbors to waive required privacy protection plantings. Therefore, the project is exempt from providing privacy protection plantings for the second-story windows and balcony. 6. “The owner at 19051 Barnhart Avenue also did not allow me to go to his balcony; he did state that he could see into neighbors’ properties; he further stated that since the balcony is high up, there would always be gaps and spaces among the trees to look into neighbors’ properties. Both home owners also refused to use my camera to take pictures from the balconies into other properties…I have taken a few pictures of 19051 Barnhart Avenue’s balcony from the next door neighbor, 19041 Barnhart Avenue’s backyard. If I can take clear view of the balcony, this balcony can certainly have clear view of the neighbors’ yard and open windows.” The project at 19051 Barnhart Avenue was completed in summer 2016 with the privacy plantings planted in May of that year. As mentioned before, the objective of privacy protection plantings is to provide substantial screening within three years of planting. Therefore, it is anticipated that substantial screening will occur by the summer of 2019. See response #1. 7.“The City of Sunnyvale is not approving second-story rear balcony for newly proposed single-family construction. This is a result of multiple projects and complaints from the city residents.” The Sunnyvale Municipal Code does not prohibit second-story balconies in residential zoning districts. The Municipal Code also does not require privacy plantings for second-story balconies, but opaque/solid railings may be required to prevent views into adjacent yards. 8. “I feel City of Cupertino has fundamental issues. Yes, there are ordinances, theories of protecting privacy. However, there is also the reality that people can see from second-story balcony. Privacy trees can be trimmed down. People can use binocular from the balcony to look into neighbors’ properties.” See response #1. R-2017-27 & RM-2017-28 18850 Barnhart Avenue January 23, 2018 Page 6 9. “I want to put on the public record that the appeal hearing committee members should visit five newly constructed houses of similar lot sizes and designs along with the appellants. Rather than talking about theories, let us use our own eyes to check into reality. The building and planning departments should be able to identify these projects in Rancho Riconada.” No comment. Appellant Ronne: 10. “The proposed balcony will overlook our yard and have a view into windows that have no coverings due to no current need for privacy and ability to view our yard. For 20 years we have had no need to cover our first story windows and have enjoyed both the natural light and views without concern for privacy. Please reconsider this decision.” See response #1. Environmental Review: This project is categorically exempt from the requirements of the California Environmental Quality Act (CEQA) per Section 15303. PUBLIC NOTICING AND COMMUNITY OUTREACH The following table is a brief summary of the noticing for this appeal: Notice of Public Hearing & Site Signage Agenda Site Signage (at least 10 days prior to hearing) 9 notices mailed to property owners adjacent to the project site (at least 10 days prior to the hearing) Posted on the City's official notice bulletin board (five days prior to hearing) Posted on the City of Cupertino’s Web site (five days prior to hearing) No public comments were received at the time of production of this staff report. CONCLUSION Since the proposed project complies with all aspects of the R-1 Ordinance, staff recommends that the Planning Commission deny the appeal and uphold the Community Development Director's decision to approve the Two-Story and Minor Residential Permits. R-2017-27 & RM-2017-28 18850 Barnhart Avenue January 23, 2018 Page 7 NEXT STEPS The Planning Commission’s decision on this project is final unless appealed within 14 days of the decision. If appealed, the City Council will hear the final appeal. Prepared by:Erika Poveda, Assistant Planner Reviewed and Approved by:Piu Ghosh, Principal Planner ATTACHMENTS 1. Draft Resolution for R-2017-27 2. Draft Resolution for RM-2017-28 3. Plan Set 4. Two-Story and Minor Residential Permits (R-2017-17 and RM-2017-28) Action Letter, Dated November 7, 2017 5. Appellant Chou’s Letter and Images 6. Appellant Ronne’s Letter CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 DRAFT RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO DENYING AN APPEAL AND UPHOLDING THE DIRECTOR OF COMMUNITY DEVELOPMENT’S DECISION TO ALLOW THE CONSTRUCTION OF A NEW 2,400 SQUARE FOOT SINGLE-FAMILY RESIDENCE AT 18850 BARNHART AVENUE SECTION I: PROJECT DESCRIPTION Application No.:R-2017-27 Applicant:Frank Ho (Sun/Hou residence) Appellants:Joseph Chou, 18841 Pendergast Avenue; Jeff and Christine Ronne, 18851 Pendergast Avenue Location:18850 Barnhart Avenue (APN: 375-33-015) SECTION II: FINDINGS FOR A TWO-STORY PERMIT: WHEREAS, the City of Cupertino received an application for a Two-Story Permit as described in Section I of this Resolution; and WHEREAS, the necessary notices were given and the comment period for the application was provided as required by the Procedural Ordinance of the City of Cupertino; and WHEREAS, the City was able to make the findings required under Section 19.28.140 (B) and the application was approved with conditions on November 7, 2017; and WHEREAS, the notice of decision was mailed to the appropriate parties, including the applicant and any person who contacted City staff with comments during the comment period, notifying them about the possibility of appealing a project; and WHEREAS, the Planning Commission of the City of Cupertino received two appeals of the Community Development Director’s approval of the Two-Story Permit; and WHEREAS, the necessary public notices have been given as required by the Procedural Ordinance of the City of Cupertino, and the Planning Commission has held at least one public hearing in regard to the appeal; and Draft Resolution R-2017-27 January 23, 2018 Page 2 WHEREAS, the project is determined to be categorically exempt from the California Environmental Quality Act (CEQA); and WHEREAS, the appellants have not met the burden of proof required to support said appeals; and WHEREAS, the Planning Commission finds as follows with regard to this application: 1. The project is consistent with the Cupertino General Plan, any applicable specific plans, zoning ordinance, and the purposes of the R-1 Ordinance; and The proposed project is consistent with the existing residential land use designations surrounding the site and is consistent with Title 19, Zoning, and Chapter 19.28, Single- Family Residential (R-1) Ordinance, of the Cupertino Municipal Code for setbacks, lot coverage, floor area ratio, and other development standards. The project also complies with the privacy protection plantings as required by the R-1 Ordinance to ensure that visual impacts to adjacent neighbors are mitigated. 2. The proposed project is harmonious in scale and design with the general neighborhood; and The proposed project is located within the R1-5 (Single Family Residential) zoning district and will be compatible with the surrounding uses of the neighborhood. The subject neighborhood contains a healthy mix of single-story and two-story homes, making the proposed project compatible with the neighborhood. The purpose of the R-1 Ordinance is to enhance the identity of residential neighborhoods, to ensure the provision of light, air, and a reasonable level of privacy to individual residential parcels, to ensure a reasonable level of compatibility in scale of structures within the neighborhood, and to reinforce the predominantly low-intensity setting in the community through setbacks, building envelope, and privacy planting requirements, as well as other prescriptive requirements incorporated within the R-1 Ordinance. Overall, the proposed project maintains the single- family home scale found to be compatible with the general neighborhood. 3. 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; and The granting of the permit will not result in a condition that is detrimental or injurious to property improvements in the vicinity, and will not be detrimental to the public health, safety, or welfare as the project is located within the R1-5 (Single-Family Residential) zoning district and will be compatible with the surrounding uses of the neighborhood. Draft Resolution R-2017-27 January 23, 2018 Page 3 4. Adverse visual impacts on adjoining properties have been reasonably mitigated. Any potential adverse impacts on adjoining properties have been reasonably mitigated through incorporating existing plantings on the subject property that meet the City’s requirements for privacy protection plantings and by proposing additional City-approved privacy protection plantings, as well as the installation of a front-yard tree as required by the R-1 Ordinance. The R-1 Ordinance allows property owners the ability to construct second-story windows and balconies as long as either privacy protection trees and/or shrubs are planted as required by the ordinance or the property owner obtains a signed “Release of Privacy Protection Measures” form from adjacent neighbors to waive the required privacy protection plantings. Furthermore, privacy protection plantings are considered Protected Trees under the City’s Municipal Code and are recorded as such with a covenant against the property to inform current and future property owners about their protected status. Protected trees cannot be removed without an approved tree removal permit and the provision of required replacement plantings. NOW, THEREFORE, BE IT RESOLVED that after careful consideration of maps, facts, exhibits, testimony, and other evidence submitted in this matter, and subject to the conditions which are enumerated in this Resolution beginning on PAGE 2 thereof,: The Planning Commission DENIES the appeal of an application for a Two-Story Permit (R-2017-27) and UPHOLDS the Administrative approval of the Two-Story Permit. The Planning Commission also finds that the subconclusions upon which the findings and conditions specified in this resolution are based and contained in the Public Hearing record concerning Application no. R-2017-27as set forth in the Minutes of Planning Commission Meeting of January 23, 2018 and are incorporated by reference as though fully set forth herein. SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1.APPROVED PROJECT The approval is based on a plan set entitled “Hou’s Residence, New Custom Homes, 18850 Barnhart Ave., Cupertino, CA 95014”, consisting of six (6) sheets labeled “A0.1, A0.2, A2.1, A3.1, C1, and LA0” and a landscape plan entitled “Yafeng Hou, 18850 Barnhart Ave., Cupertino, CA 95014,” consisting of an arborist report and two (2) sheets labeled “LA1 and LA2,” except as may be amended by conditions in this resolution. 2.ANNOTATION OF THE CONDITIONS OF APPROVAL The conditions of approval set forth shall be incorporated into and annotated on the building plans. Draft Resolution R-2017-27 January 23, 2018 Page 4 3.ACCURACY OF THE PROJECT PLANS The applicant/property owner is responsible for verifying all pertinent property data including but not limited to property boundary locations, building setbacks, property size, building square footage, any relevant easements and/or construction records. Any misrepresentation of property data may invalidate this approval and may require additional review. 4.CONCURRENT APPROVAL CONDITIONS The conditions of approval contained in file no. RM-2017-28 shall be applicable to this permit. 5.COMPLIANCE WITH PUBLIC WORKS CONFIRMATION FORM The project shall comply with the requirements indicated on the public works confirmation form, including, but not limited to, dedications, easements, off-site improvements, undergrounding of utilities, all necessary agreements, and utility installations/relocations as deemed necessary by the director of public works and required for public health and safety. 6.LANDSCAPE PROJECT SUBMITTAL Prior to issuance of building permits, the applicant shall submit a full Landscape Documentation Package, per sections 14.15.050 A, B, C, and D of the Landscape Ordinance, for projects with landscape area 500 square feet or more or elect to submit a Prescriptive Compliance Application per sections 14.15.040 A, B, and C for projects with landscape area between 500 square feet and 2,500 square feet.The Landscape Documentation Package or Prescriptive Compliance Application shall be reviewed and approved to the satisfaction of the Director of Community Development prior to issuance of building permits, and additional requirements per sections 14.15.040 D, E, F, and G or 14.15.050 E, F, G, H, and I will be required to be reviewed and approved prior to final inspections. 7.PRIVACY PLANTING The final privacy planting plan shall be reviewed and approved by the Planning Division prior to issuance of building permits. The variety, size, and planting distance shall be consistent with the City’s requirements. 8.FRONT YARD TREE The applicant shall indicate on site and landscape plans the location of a front yard tree to be located within the front yard setback area in order to screen the massing of the second story. The front yard tree shall be a minimum 24-inch box and 6 feet planted height and otherwise be consistent with the City’s requirements. Draft Resolution R-2017-27 January 23, 2018 Page 5 9.PRIVACY PROTECTION AND FRONT YARD TREE COVENANT The property owner shall record a covenant on this property to inform future property owners of the privacy protection measures and tree protection requirements consistent with the R-1 Ordinance, for all windows with views into neighboring yards and a sill height that is 5 feet or less from the second story finished floor. The precise language will be subject to approval by the Director of Community Development. Proof of recordation must be submitted to the Community Development Department prior to final occupancy of the residence. 10.CONSULTATION WITH OTHER DEPARTMENTS The applicant is required to consult with other departments and/or agencies with regard to the proposed project for additional conditions and requirements. Any misrepresentation of any submitted data may invalidate an approval by the Community Development Department. 11.EXTERIOR BUILDING MATERIALS/TREATMENTS Final building exterior treatment plan (including but not limited to details on exterior color, material, architectural treatments and/or embellishments) shall be reviewed and approved by the Director of Community Development prior to issuance of building permits. The final building exterior plan shall closely resemble the details shown on the original approved plans. Any exterior changes determined to be substantial by the Director of Community Development shall require a minor modification approval with neighborhood input. 12.INDEMNIFICATION Except as otherwise prohibited by law, the applicant shall indemnify and hold harmless the City, its City Council, and its officers, employees and agents (collectively, the “indemnified parties”) from and against any claim, action, or proceeding brought by a third party against one or more of the indemnified parties or one or more of the indemnified parties and the applicant to attack, set aside, or void this Resolution or any permit or approval authorized hereby for the project, including (without limitation) reimbursing the City its actual attorneys’ fees and costs incurred in defense of the litigation. The applicant shall pay such attorneys’ fees and costs within 30 days following receipt of invoices from City. Such attorneys’ fees and costs shall include amounts paid to counsel not otherwise employed as City staff and shall include City Attorney time and overhead costs and other City staff overhead costs and any costs directly related to the litigation reasonably incurred by City. Draft Resolution R-2017-27 January 23, 2018 Page 6 13.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. PASSED AND ADOPTED this 23rd day of January, 2018, at the Regular Meeting of the Planning Commission of the City of Cupertino, State of California, by the following roll call vote: AYES:COMMISSIONERS: NOES:COMMISSIONERS: ABSTAIN:COMMISSIONERS: ABSENT:COMMISSIONERS: ATTEST:APPROVED: ______ Piu Ghosh Don Sun Principal Planner Chair, Planning Commission CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 DRAFT RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO DENYING AN APPEAL AND UPHOLDING THE DIRECTOR OF COMMUNITY DEVELOPMENT’S DECISION TO ALLOW THE CONSTRUCTION OF A SECOND- STORY BALCONY ON THE NEW SINGLE-FAMILY RESIDENCE AT 18850 BARNHART AVENUE SECTION I: PROJECT DESCRIPTION Application No.:RM-2017-28 Applicant:Frank Ho (Sun/Hou residence) Appellants:Joseph Chou, 18841 Pendergast Avenue; Jeff and Christine Ronne, 18851 Pendergast Avenue Location:18850 Barnhart Avenue (APN: 375-33-015) SECTION II: FINDINGS FOR A MINOR RESIDENTIAL PERMIT: WHEREAS, the City of Cupertino received an application for a Minor Residential Permit as described in Section I of this Resolution; and WHEREAS, the necessary notices were given and the comment period for the application was provided as required by the Procedural Ordinance of the City of Cupertino; and WHEREAS, the City was able to make the findings required under Section 19.28.140 (A) and the application was approved with conditions on November 7, 2017; and WHEREAS, the notice of decision was mailed to the appropriate parties, including the applicant and any person who contacted City staff with comments during the comment period, notifying them about the possibility of appealing a project; and WHEREAS, the Planning Commission of the City of Cupertino received two appeals of the Community Development Director’s approval of the Minor Residential Permit; and Draft Resolution RM-2017-28 January 23, 2018 WHEREAS, the necessary public notices have been given as required by the Procedural Ordinance of the City of Cupertino, and the Planning Commission has held at least one public hearing in regard to the appeal; and WHEREAS, the project is determined to be categorically exempt from the California Environmental Quality Act (CEQA); and WHEREAS, the appellants have not met the burden of proof required to support said appeals; and WHEREAS, the Planning Commission finds as follows with regard to this application: 1. The project is consistent with the Cupertino General Plan, any applicable specific plans, zoning ordinance, and the purposes of the R-1 Ordinance; and The proposed project is consistent with the existing residential land use designations surrounding the site and is consistent with Title 19, Zoning, and Chapter 19.28, Single- Family Residential (R-1) Ordinance, of the Cupertino Municipal Code for setbacks, lot coverage, floor area ratio, and other development standards. The R-1 Ordinance allows property owners the ability to construct second-story balconies as long as either privacy protection trees and/or shrubs are planted as required by the ordinance or the property owner obtains a signed “Release of Privacy Protection Measures” form from adjacent neighbors to waive the required privacy protection plantings. The project complies with the privacy protection plantings as required by the R-1 Ordinance to ensure that visual impacts to adjacent neighbors are mitigated. 2. The proposed project is harmonious in scale and design with the general neighborhood; and The proposed project is located within the R1-5 (Single Family Residential) zoning district and will be compatible with the surrounding uses of the neighborhood. The subject neighborhood contains a healthy mix of single-story and two-story homes with balconies, making the proposed project compatible with the neighborhood. The purpose of the R-1 Ordinance is to enhance the identity of residential neighborhoods, to ensure the provision of light, air, and a reasonable level of privacy to individual residential parcels, to ensure a reasonable level of compatibility in scale of structures within the neighborhood, and to reinforce the predominantly low-intensity setting in the community through setbacks, building envelope, and privacy planting requirements, as well as other prescriptive requirements incorporated within the R-1 Ordinance. Overall, the proposed project maintains the single-family home scale found to be compatible with the general neighborhood. Draft Resolution RM-2017-28 January 23, 2018 3. 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; and The granting of the permit will not result in a condition that is detrimental or injurious to property improvements in the vicinity, and will not be detrimental to the public health, safety, or welfare as the project is located within the R1-5 (Single-Family Residential) zoning district and will be compatible with the surrounding uses of the neighborhood. 4. Adverse visual impacts on adjoining properties have been reasonably mitigated. Any potential adverse impacts on adjoining properties have been reasonably mitigated through incorporating existing plantings on the subject property that meet the City’s requirements for privacy protection plantings and by proposing additional City-approved privacy protection plantings as required by the R-1 Ordinance to reasonably obscure the viewsheds of the second-story balcony. The R-1 Ordinance allows property owners the ability to construct second-story balconies as long as either privacy protection trees and/or shrubs are planted as required by the ordinance or the property owner obtains a signed “Release of Privacy Protection Measures” form from adjacent neighbors to waive the required privacy protection plantings. Furthermore, privacy protection plantings are considered Protected Trees under the City’s Municipal Code and are recorded as such with a covenant against the property to inform current and future property owners about their protected status. Protected trees cannot be removed without an approved tree removal permit and the provision of required replacement plantings. NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of maps, facts, exhibits, testimony, and other evidence submitted in this matter, subject to the conditions which are enumerated in this Resolution beginning on PAGE 2 thereof,: The Planning Commission DENIES the appeal of an application for a Minor Residential Permit (RM-2017-28) and UPHOLDS the Administrative approval of the Minor Residential Permit. The Planning Commission also finds that the subconclusions upon which the findings and conditions specified in this resolution are based and contained in the Public Hearing record concerning Application no. RM-2017-28 as set forth in the Minutes of Planning Commission Meeting of January 23, 2018 and are incorporated by reference as though fully set forth herein. Draft Resolution RM-2017-28 January 23, 2018 SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1.APPROVED PROJECT The approval is based on a plan set entitled “Hou’s Residence, New Custom Homes, 18850 Barnhart Ave., Cupertino, CA 95014”, consisting of six (6) sheets labeled “A0.1, A0.2, A2.1, A3.1, C1, and LA0” and a landscape plan entitled “Yafeng Hou, 18850 Barnhart Ave., Cupertino, CA 95014,” consisting of an arborist report and two (2) sheets labeled “LA1 and LA2,” except as may be amended by conditions in this resolution. 2.ANNOTATION OF THE CONDITIONS OF APPROVAL The conditions of approval set forth shall be incorporated into and annotated on the building plans. 3.ACCURACY OF THE PROJECT PLANS The applicant/property owner is responsible for verifying all pertinent property data including but not limited to property boundary locations, building setbacks, property size, building square footage, any relevant easements and/or construction records. Any misrepresentation of property data may invalidate this approval and may require additional review. 4.CONCURRENT APPROVAL CONDITIONS The conditions of approval contained in file no. R-2017-27 shall be applicable to this permit. 5.COMPLIANCE WITH PUBLIC WORKS CONFIRMATION FORM The project shall comply with the requirements indicated on the public works confirmation form, including, but not limited to, dedications, easements, off-site improvements, undergrounding of utilities, all necessary agreements, and utility installations/relocations as deemed necessary by the director of public works and required for public health and safety. 6.LANDSCAPE PROJECT SUBMITTAL Prior to issuance of building permits, the applicant shall submit a full Landscape Documentation Package, per sections 14.15.050 A, B, C, and D of the Landscape Ordinance, for projects with landscape area 500 square feet or more or elect to submit a Prescriptive Compliance Application per sections 14.15.040 A, B, and C for projects with landscape area between 500 square feet and 2,500 square feet.The Landscape Documentation Package or Prescriptive Compliance Application shall be reviewed and approved to the satisfaction of the Director of Community Draft Resolution RM-2017-28 January 23, 2018 Development prior to issuance of building permits, and additional requirements per sections 14.15.040 D, E, F, and G or 14.15.050 E, F, G, H, and I will be required to be reviewed and approved prior to final inspections. 7.PRIVACY PLANTING The final privacy planting plan shall be reviewed and approved by the Planning Division prior to issuance of building permits. The variety, size, and planting distance shall be consistent with the City’s requirements. 8.FRONT YARD TREE The applicant shall indicate on site and landscape plans the location of a front yard tree to be located within the front yard setback area in order to screen the massing of the second story. The front yard tree shall be a minimum 24-inch box and 6 feet planted height and otherwise be consistent with the City’s requirements. 9.PRIVACY PROTECTION AND FRONT YARD TREE COVENANT The property owner shall record a covenant on this property to inform future property owners of the privacy protection measures and tree protection requirements consistent with the R-1 Ordinance, for all windows with views into neighboring yards and a sill height that is 5 feet or less from the second story finished floor. The precise language will be subject to approval by the Director of Community Development. Proof of recordation must be submitted to the Community Development Department prior to final occupancy of the residence. 10.CONSULTATION WITH OTHER DEPARTMENTS The applicant is required to consult with other departments and/or agencies with regard to the proposed project for additional conditions and requirements. Any misrepresentation of any submitted data may invalidate an approval by the Community Development Department. 11.EXTERIOR BUILDING MATERIALS/TREATMENTS Final building exterior treatment plan (including but not limited to details on exterior color, material, architectural treatments and/or embellishments) shall be reviewed and approved by the Director of Community Development prior to issuance of building permits. The final building exterior plan shall closely resemble the details shown on the original approved plans. Any exterior changes determined to be substantial by the Director of Community Development shall require a minor modification approval with neighborhood input. Draft Resolution RM-2017-28 January 23, 2018 12.INDEMNIFICATION Except as otherwise prohibited by law, the applicant shall indemnify and hold harmless the City, its City Council, and its officers, employees and agents (collectively, the “indemnified parties”) from and against any claim, action, or proceeding brought by a third party against one or more of the indemnified parties or one or more of the indemnified parties and the applicant to attack, set aside, or void this Resolution or any permit or approval authorized hereby for the project, including (without limitation) reimbursing the City its actual attorneys’ fees and costs incurred in defense of the litigation. The applicant shall pay such attorneys’ fees and costs within 30 days following receipt of invoices from City. Such attorneys’ fees and costs shall include amounts paid to counsel not otherwise employed as City staff and shall include City Attorney time and overhead costs and other City staff overhead costs and any costs directly related to the litigation reasonably incurred by City. 13.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. PASSED AND ADOPTED this 23rd day of January, 2018, at the Regular Meeting of the Planning Commission of the City of Cupertino, State of California, by the following roll call vote: AYES:COMMISSIONERS: NOES:COMMISSIONERS: ABSTAIN:COMMISSIONERS: ABSENT:COMMISSIONERS: ATTEST:APPROVED: ______ Piu Ghosh Don Sun Principal Planner Chair, Planning Commission November 7, 2017 Studio 61 Architects, Inc. Attn: Frank Ho 12480 Saratoga Ave. Saratoga, CA 95070 SUBJECT: TWO STORY PERMIT ACTION LETTER –Application R-2017-27, RM-2017-28 This letter confirms the decision of the Director of Community Development, given on November 7, 2017 approving a Two Story Permit (R-2017-27) to allow the construction of a new 2,400 square foot two-story single-family residence; and a Minor Residential Permit (RM-2017-28) for a second-story balcony at 18850 Barnhart Avenue, with the following conditions: 1.APPROVED PROJECT The approval is based on a plan set entitled “Hou’s Residence, New Custom Homes, 18850 Barnhart Ave., Cupertino, CA 95014”, consisting of six (6) sheets labeled “A0.1, A0.2, A2.1, A3.1, C1, and LA0” and a landscape plan entitled “Yafeng Hou, 18850 Barnhart Ave., Cupertino, CA 95014,” consisting of an arborist report and two (2) sheets labeled “LA1 and LA2,” except as may be amended by conditions in this resolution. 2.ANNOTATION OF THE CONDITIONS OF APPROVAL The conditions of approval set forth shall be incorporated into and annotated on the building plans. 3.ACCURACY OF THE PROJECT PLANS The applicant/property owner is responsible to verify all pertinent property data including but not limited to property boundary locations, building setbacks, property size, building square footage, any relevant easements and/or construction records. Any misrepresentation of property data may invalidate this approval and may require additional review. 4.COMPLIANCE WITH PUBLIC WORKS CONFIRMATION FORM The project shall comply with the requirements indicated on the public works confirmation form, including, but not limited to, dedications, easements, off-site improvements, undergrounding of utilities, all necessary agreements, and utility installations/relocations as deemed necessary by the director of public works and required for public health and safety. 5.LANDSCAPE PROJECT SUBMITTAL Prior to issuance of building permits, the applicant shall submit a full Landscape Documentation Package, per sections 14.15.050 A, B, C, and D of the Landscape Ordinance, for projects with landscape area 500 square feet or more or elect to submit a Prescriptive Compliance Application per sections OFFICE OF COMMUNITY DEVELOPMENT CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 (408) 777-3308 • FAX (408) 777-3333 • planning@cupertino.org Two-Story Permit Action Letter Page 2 R-2017-27, RM-2017-28 14.15.040 A, B, and C for projects with landscape area between 500 square feet and 2,500 square feet. The Landscape Documentation Package or Prescriptive Compliance Application shall be reviewed and approved to the satisfaction of the Director of Community Development prior to issuance of building permits, and additional requirements per sections 14.15.040 D, E, F, and G or 14.15.050 E, F, G, H, and I will be required to be reviewed and approved prior to final inspections. 6.PRIVACY PLANTING The final privacy planting plan shall be reviewed and approved by the Planning Division prior to issuance of building permits. The variety, size, and planting distance shall be consistent with the City’s requirements. 7.FRONT YARD TREE The applicant shall indicate on site and landscape plans the location of a front yard tree to be located within the front yard setback area in order to screen the massing of the second story. The front yard tree shall be a minimum 24-inch box and 6 feet planted height and otherwise be consistent with the City’s requirements 8.PRIVACY PROTECTION AND FRONT YARD TREE COVENANT The property owner shall record a covenant on this property to inform future property owners of the privacy protection measures and tree protection requirements consistent with the R-1 Ordinance, for all windows with views into neighboring yards and a sill height that is 5 feet or less from the second story finished floor. The precise language will be subject to approval by the Director of Community Development. Proof of recordation must be submitted to the Community Development Department prior to final occupancy of the residence. 9.CONSULTATION WITH OTHER DEPARTMENTS The applicant is responsible to consult with other departments and/or agencies with regard to the proposed project for additional conditions and requirements. Any misrepresentation of any submitted data may invalidate an approval by the Community Development Department. 10.EXTERIOR BUILDING MATERIALS/TREATMENTS Final building exterior treatment plan (including but not limited to details on exterior color, material, architectural treatments and/or embellishments) shall be reviewed and approved by the Director of Community Development prior to issuance of building permits. The final building exterior plan shall closely resemble the details shown on the original approved plans. Any exterior changes determined to be substantial by the Director of Community Development shall require a minor modification approval with neighborhood input. 11.INDEMNIFICATION Except as otherwise prohibited by law, the applicant shall indemnify and hold harmless the City, its City Council, and its officers, employees and agents (collectively, the “indemnified parties”) from and against any claim, action, or proceeding brought by a third party against one or more of the indemnified parties or one or more of the indemnified parties and the applicant to attack, set aside, or void this Resolution or any permit or approval authorized hereby for the project, including (without limitation) reimbursing the City its actual attorneys’ fees and costs incurred in defense of the litigation. The applicant shall pay such attorneys’ fees and costs within 30 days following receipt of invoices from City. Such attorneys’ fees and costs shall include amounts paid to counsel not otherwise Two-Story Permit Action Letter Page 3 R-2017-27, RM-2017-28 employed as City staff and shall include City Attorney time and overhead costs and other City staff overhead costs and any costs directly related to the litigation reasonably incurred by City. 12.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. Please note that if this permit is not vested within a year, it shall expire on November 7, 2018. Staff received three written comments from adjacent property owners. One property owner stated their concerns about the reduction of natural light from the proposed new two-story residence and objected to the proposed second-story balcony, expressing concerns about potential privacy impacts. Another property owner also stated concerns about potential privacy impacts from the proposed second-story balcony. Staff responded to both property owners by explaining that the Cupertino Municipal Code requires a minimum setback area for all single-family homes in order to ensure provision of light, air, and a reasonable level of privacy to individual residential parcels. The proposed project meets, and at times exceeds, all setback requirements. While the minimum required rear yard setback for second-story balconiesis 20 feet from the rear property line, the proposed balcony for 18850 Barnhart Avenue is set back 25 feet. Additionally, the project satisfies the privacy protection requirement for the balcony. As stated in the conditions of approval above, a the property owner for 18850 Barnhart Avenue shall record a covenant to protect and maintain all required privacy screening trees and/or shrubs. Another property owner expressed health and safety concerns about the proposed chimney on the west side of the residence. The property owner requested that the applicant modify the design and relocate the chimney exhaust above the second-story roof, or ensure that the chimney shall be non-functional in the current proposed location and maintained by a covenant. The applicant noted that the proposed chimney is non-functional and is for decorative purposes only. The proposed fireplace is a direct vent fireplace with a sealed combustion chamber, which does not emit smoke from the chimney. The project will also be required to meet any applicable building codes for the proposed fireplace. No modifications were made to the plans and no additional conditions of approval were required in order to address the comments raised during the noticing period. Staff has made allthe findings that are required for approval of a Two-Story Permitand a Minor Residential Permitas requiredfor approvalby Cupertino's Municipal Code, Chapter 19.28.140 (A) and (B). 1. The project is consistent with the Cupertino General Plan, any applicable specific plans, zoning ordinances and the purposes of this title. The proposed project is consistent with the General Plan as the project is within the Low Density land use area. There are no applicable specific plans that affect the project. The project has been found to be consistent with the requirements of Cupertino Municipal Code Chapter 19.28 Single Family (R-1) Residential. Two-Story Permit Action Letter Page 4 R-2017-27, RM-2017-28 2. The granting of the permit will not result in a condition that is detrimental or injurious to property improvements in the vicinity, and will not be detrimental to the public health, safety or welfare. The granting of the permit will not result in a condition that is detrimental or injurious to property improvements in the vicinity, and will not be detrimental to the public health, safety or welfare as the project is located within the R1-5 (Single-Family Residential) zoning district, and will be compatible with the surrounding uses of the neighborhood. 3. The proposed project is harmonious in scale and design with the general neighborhood. The proposed project is located in a residential area consisting of single-family homes. The proposed project maintains the single-family home scale found compatible with the general neighborhood. 4. Adverse visual impacts on adjoining properties have been reasonably mitigated. Any potential adverse impacts on adjoining properties have been reasonably mitigated through the privacy protection plantings and the installation of a front-yard tree as required. Also, please note that an appeal of this decision can be made within fourteen (14) calendar days from the date of this letter (by 5:00pm, Tuesday, November 21, 2017). If this happens, you will be notified of a public hearing, which will be scheduled before the Planning Commission. Sincerely, Erika Poveda Assistant Planner Planning Division City of Cupertino Enclosures: Approved Plan Set CC: Yunfeng Hou and Huaqin Sun, 18850 Barnhart Ave., Cupertino, CA 95014 Morgan and Akemi Winebarger, 18860 Barnhart Ave., Cupertino, CA 95014 Joseph Chou, Li Chien, and Lucia Lee, 18841 Pendergast Ave., Cupertino, CA 95014 James Hylen, 18833 Pendergast Ave., Cupertino, CA 95014