Reso 6880CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 6880
RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
RECOMMENDING APPROVAL OF A TREE REMOVAL PERMIT TO ALLOW THE
REMOVAL AND REPLACEMENT OF 41 TREES TO ALLOW THE CONSTRUCTION
OF A NEW 5 -STORY, 185 ROOM HOTEL WITH ASSOCIATED SITE AND
LANDSCAPING IMPROVEMENTS LOCATED AT 10801 AND 10805 NORTH. WOLFE
ROAD (APN: 316-45-017 AND 316-05-56)
The Planning Commission recommends that;. the City Council approve the Tree Removal
Permit, in substantially similar form to the Draft Resolution attached hereto as Exhibit
TR.
PASSED AND ADOPTED at a'Regular Meeting of the Planning Commission of the City
of Cupertino the 11f day of June 2019 by the following roll call vote:
AYES: COMMISSIONERS: Chair Wang, Vice Chair Saxena, Moore, Fung
NOES: COMMISSIONERS: none
ABSTAIN: COMMISSIONERS: none
ABSENT: COMMISSIONERS: Takahashi
ATTEST:
Benjamin Fu
Acting Dir. of Community Development
1\, ALLY V V C&I L6 -
Chair, Planning Commission
EXHIBIT TR
RESOLUTION NO.
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A TREE REMOVAL PERMIT TO ALLOW THE REMOVAL AND
REPLACEMENT OF 41 TREES TO ALLOW THE CONSTRUCTION OF A NEW 5 -
STORY, 185 ROOM HOTEL WITH ASSOCIATED SITE AND LANDSCAPING
IMPROVEMENTS LOCATED AT 10801 AND 10805 NORTH WOLFE ROAD
(APN: 316-45-017 AND 316-05-56)
SECTION I: PROTECT DESCRIPTION
Application No.: TR -2017-46
Applicant: Kimco Realty (Michael Strahs)
Property Owner: Cupertino Village, LP
Location: 10801 and 10805 North Wolfe Road (APN: 316-45-017 and 316-05-56)
SECTION II: FINDINGS FOR TREE REMOVAL PERMIT:
WHEREAS, the City of Cupertino received an application for a Tree Removal Permit as
described in Section I. of this resolution; 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 application; and
WHEREAS, the City of Cupertino's Environmental Review Committee at its December
13, 2018 meeting reviewed the Draft Mitigated Negative Declaration, received public
comments, and recommended adoption of a Mitigated Negative Declaration on a 5-0 vote
with minor modifications, and provided measures that ensure the least impactful
development of the proposed hotel; and
WHEREAS, on June 11, 2019, the Planning Commission, after considering the
administrative record and the public hearing, exercised its independent judgment and
recommended approval of the Final Draft IS/MND (EA -2017-06) for the Project on a X -X
vote, which incorporated all the identified mitigation measures as conditions of approval
for the project prior to taking final action on the Project; and
WHEREAS, on June 11, 2019 the Planning Commission recommended on a X -X vote that
the City Council approve the General Plan Amendment (GPA -2017-05), in substantially
similar form to the Resolution presented (Resolution no. ), approve the
Development Permit (DP -2018-04) in substantially similar form to the Resolution
presented (Resolution No. ), approve the Architectural and Site Approval Permit
EXHIBIT TR
(ASA -2017-09) in substantially similar form to the Resolution presented, approve a Use
Permit.(U-2018-03) in substantially similar form to the Resolution presented, approve the
Tree Removal Permit (TR -2017-46) in substantially similar form to the Resolution
presented (Resolution no. ) and approve a Development Agreement (DA -2017-01)
in substantially similar form to the Ordinance presented; and
WHEREAS, the City Council of the City of Cupertino is the decision-making body for
this Resolution;
WHEREAS, on July 16, 2019, upon due notice, the City Council held. a public hearing to
consider the Development Permit; and
WHEREAS, after consideration of evidence contained in the entire, administrative record,
at the public hearing on July 16, 2019, the City Council exercised its independent
judgment and adopted Resolution No. [####] adopting the Draft IS/MND, Resolution No.
[####] adopting the General Plan Amendment, Resolution No. [####] approving a
Development Permit, Resolution No. [####] approving a Use Permit, and Resolution No.
[####] approving an Architectural and Site Approval; and
WHEREAS, the applicant has met the burden of proof required to support said
application; and
WHEREAS, the City Council finds as follows with regard to this application:
a) That the location of the trees restricts the economic enjoyment of the property by
severely limiting the use of property in a manner typically not experienced by owners
of similarly zoned and situated property, and the applicant has demonstrated to the
satisfaction of the approval authority that there are no reasonable alternatives to
preserve the tree(s).
The proposed trees are in conflict with the proposed new building and site improvements. The
demolition of the existing structures and new construction would result in the removal of all
41 trees on site. The majority of the trees to be removed are Evergreen Ash. While the trees are
not identified as a protected species as defined by Cupertino Municipal Code Chapter 14.18,
these trees are protected under the category of "approved development tree," because they were
planted as part of the originally approved development. Therefore, replacement plantings are
required for the proposed removal. The project will meet the required replacements of 4136"
box -size trees and consist of trees that are suitable to the area climate (i.e., Valley Oak, Blue
Oak, Deodar Cedar, etc.) Additionally, the project applicant has worked with the City's
Arborist, and is committed to preserve 27 trees on site.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the Mitigated Negative Declaration and the Mitigation
EXHIBIT TR
Monitoring and Reporting Program for the Project (EA -2017-01), subject to the conditions
which are enumerated in this Resolution beginning on PAGE 2 thereof, and those
contained in all other Resolutions approved for this Project,
The application for a Tree Removal Permit, Application No. TR -2017-46, is hereby
approved, and that the subconclusions upon which the findings and conditions specified
in this Resolution are based are contained in the Public Hearing record concerning
Application no. TR -2017-46 as set forth in the Minutes of the City Council Meeting of July
16, 2019 Meeting, and are incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set received November 8, 2018 consisting of 48 sheets
labeled as Planning Submittal, Table of Contents, 3-43, C1.1, C2.1, C2.2, C3.1, and C.24
drawn by Hornberger + Worstell and Keir & Wright Civil Engineers & Surveyors, Inc,
except as may be amended by conditions in this resolution.
2. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. GPA -2017-05, DP -2018-04, DA -2017-
01, ASA -2017-09, U-2018-03, and EA -2017-06 shall applicable to this approval.
3. TREE REPLACEMENTS AND FINAL PLANTING PLAN
The applicant shall plant adequate replacement trees for the trees proposed to be
removed in accordance with the replacements requirements of Chapter 14.18 of the
Cupertino Municipal Code. The trees shall be planted prior to final occupancy.
The number, location and type of trees shall be incorporated into the detailed
landscape plan to be reviewed and approved by the Director of Community
Development in consultation with the City's consulting arborist prior to issuance of
building permits. The Director of Community Development shall have the discretion
to require additional tree replacements if deemed necessary. The City's consulting
arborist shall confirm that the replacement trees were planted properly and according
to plan prior to final occupancy.
5. TREE PROTECTION
In accordance with the project arborist recommendations, prior to buildingpermit
issuance the Applicant shall complete the following:
a. Tree Protection During Construction: Tree Protection Zone (TPZ) fencing, either
chain link and other root protection shall be installed around trees or groups of
trees such that it maintains a distance of 1.5 times the diameter of the drip line.
EXHIBIT TR
b. Work Activities Occurring within the Designated TPZ during construction:
i. Arborist Supervision — all activities occurring inside of the designated TPC
must be approved and an ISA certified arborist must be present to supervise
tree protection and root pruning activities.
ii. Root Protection — as long as the sidewalk pavement remains in place no
additional protections are required. If sidewalk pavement is removed, exposed
soil and roots must be covered with burlap and plywood or trenching plates.
iii. Required Method of Excavation within Critical Root Zone — any excavation
within a distance from the tree three (3) times the diameter of the trunk
(measured at 4.5' high) must be hand, air spade or ditch witch. An ISA certified
arborist is to supervise any such activity.
c. Post Construction Mitigation:
i. Monitoring Tree Health — An ISA certified arborist shall conduct regular visual
inspection of trees to assess where further mitigation is required. Tree decline
should be recorded and referenced against pre -construction health assessment.
Leaf and stem insects and fungal pathogens are a sign of poor tree health (low
energy reserves).
ii. Mitigation of Soil Compaction — the level and depth of soil compaction must
be assessed and mitigated as necessary. Mitigation of soil compaction in areas
where roots are present must minimize root loss. Tools most suitable to
mitigate soil compaction are the water jet or air spade.
iii. PestManagement Program — Pest problems must be analyzed and treated.
In addition to the above, the applicant shall:
a. No parking or vehicle traffic shall be allowed under root zones, unless using
buffers approved by the Project Arborist.
b. Notwithstanding section (b) (iii) above, if trenching is needed in the Tree
Protection Zone, the City's consulting arborist shall be consulted before any
trenching or root cutting beneath the dripline of the tree.
c. Wood chip mulch shall be evenly spread inside the tree projection fence to a four -
inch depth.
d. Tree protection conditions shall be posted on the tree protection barriers.
e. Retained trees shall be watered to maintain them in good health.
f. A covenant on the property shall be recorded that identifies all the protected trees,
prior to final occupancy.
Any willful action by the applicant, contractor and/or subcontractors that causes
damage to the retained trees, without proper review by the City to allow additional
tree removals, shall cause the applicant to be non-compliant with the City's Municipal
EXHIBIT TR
Code and could require payment of the Retroactive Tree Removal penalties and fees
pursuant to the most recently adopted fee schedule.
The tree protection measures shall be inspected and approved by the City's consulting
arborist prior to issuance of building permits. The City's consulting arborist shall
inspect the trees to be retained and shall provide reviews prior to issuance of
demolition, grading or building permits. A report ascertaining the good health of the
trees mentioned above shall be provided prior to issuance of final occupancy.
4. TREE REPLACMENT BOND
The applicant shall provide a tree replacement bond in an amount determined by the
City's consulting arborist prior to removals and issuance of demolition andrg ading
permits. The bond shall be returned after construction is complete and the health of
the retained trees and newly planted trees is verified by the City's consulting arborist.
5. 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.
6. INDEMNIFICATION
To the extent permitted by law, the applicant shall indemnify and hold harmless the
City, its City Council, its officers, employees and agents (the "indemnified parties")
from and against any claim, action, or proceeding brought by a third party against 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 and City shall use best efforts to select mutually
agreeable legal counsel to defend such action, and the applicant shall pay all
compensation for such legal counsel, following the applicant's receipt of invoices from
City, together with reasonable supporting documentation. Such compensation shall
include reasonable compensation 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. If the applicant and the City cannot in good faith agree on joint counsel, the City
shall have the right to retain counsel of its own choosing, separate from the applicant's
litigation counsel.
EXHIBIT TR
7. 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 16th day of July 2019, at the Regular Meeting of the City
Council of the City of Cupertino, State of California, by the following roll call vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
Steven Scharf, Mayor
Date
City of Cupertino
ATTEST:
Date
Grace Schmidt, City Clerk