Reso 6888 CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 6888
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 AT AN EXISTING SINGLE-FAMILY RESIDENCE
LOCATED AT 21865 SAN FERNANDO AVENUE
SECTION I: PROJECT DESCRIPTION
Application No.: RM-2017-39
Applicant: Francis Kun(Tsai Residence)
Appellants: Shayjan Huang and Eric and Cindy Fang
Location: 21865 San Fernando Avenue (APN: 357-15-043)
SECTION II: FINDINGS FOR A MINOR RESIDENTIAL PERMIT:
fbWHEREAS, the City of Cupertino received an application for a Minor Residential Permit to
allow the construction of a second-story balcony; and
WHEREAS, the project is determined to be categorically exempt from the California
Environmental Quality Act(CEQA) pursuant to Section 15303 of the CEQA Guidelines; 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 Director of Community Development made the findings required under
Section 19.28.140(A) and approved the application with conditions on June 25,2019; 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 an appeal of the
Community Development Director's approval of the Minor Residential 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
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Resolution No.6888 RM-2017-39 November 12,2019
Page 2
WHEREAS, the appellants have not met the burden of proof required to support said appeal;
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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 of the
Cupertino General Plan. Ther are no applicable specific plans that affect the project. The project has
been found to be consistent with 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. 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 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 R1-7.5 (Single Family Residential) zoning district, and will be
compatible with the surrounding uses of the neighborhood. The project meets the building
development regulations of the R-1 Ordinance and complies with the privacy protection measures to
ensure that visual impacts to adjacent neighbors are mitigated.
3. The proposed project is harmonious,in scale and design with the general neighborhood;
and
The project is located within the R1-7.5 (Single Family Residential) zoning district and will be
compatible with the surrounding uses of 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. The project meets the building development regulations of the R-
1 Ordinance including floor area ratio, lot coverage, setbacks, and building height. Overall, the
proposed project maintains a single-family home scale and is compatible with the general
neighborhood.
4. Adverse visual impacts on adjoining properties have been reasonably mitigated.
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Resolution No.6888 RM-2017-39 November 12,2019
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0 Any potential adverse visual impacts on adjoining properties have been reasonably mitigated
through adherence to the setback requirements and privacy protection measures of the R-1
Ordinance. The proposal for 21865 San Fernando Avenue meets, and in some cases exceeds, all
setback requirements for the R1-7.5 zoning district. The project proposes a rear-yard second-story
balcony setback of over 60'where 20'is required.
The R-1 Ordinance allows property owners the ability to construct second-story windows and
balconies as long as privacy protection trees and/or shrubs are planted as required by the ordinance.
The project complies with the privacy screening requirements of the R-1 Ordinance by providing
privacy screening plantings for all second-story balconies and second-story windows with a sill
height below 5 feet along the western, eastern, and northern property lines. Per the R-1 Ordinance,
the objective of privacy protection plantings is to provide substantial 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.
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 3 thereof:
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The Planning Commission DENIES the appeal of an application for a Minor Residential Permit
(RM-2017-39) 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-2017-39 as set forth in the Minutes of Planning Commission Meeting of
November 12, 2019 and are incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
The approval is based on a plan set entitled, "Residential Remodel and Addition for Mr.
and Mrs. David and Yiting Tsai, 21865 San Fernando Avenue, Cupertino, CA 95014,"
consisting of 16 sheets labeled "A-1 through A-9, CB, FAD, L-1, L-2, and Boundary
Topographic Survey Map" and the supplemental privacy screening documents consisting
of two pages entitled "Existing Privacy Screening" and "Alternative Privacy Screening
Used," 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
41) building plans.
Resolution No.6888 RM-2017-39 November 12,2019
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3. ACCURACY OF THE PROJECT PLANS
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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. COMPLIANCE WITH PUBLIC WORKS CONFIRMATION FORM
The project shall comply with the requirements indicated on the Public Works
Confirmation form dated October 17, 2017, 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. The Public Works Confirmation is a preliminary
review, and is not an exhaustive review of the subject development. Additional
requirements may be established and implemented during the construction permitting
process. The project construction plans shall address these requirements with the
construction permit submittal, and all required improvements shall be completed to the
satisfaction of the Director of Public Works prior to final occupancy.
5. DRIVEWAY GATE FENCE EXCEPTION
The electronic driveway gate fence indicated on the plans is not approved. Either a Fence
Exception Permit must be obtained in compliance with Chapter 19.48: Fences, of the
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Cupertino Municipal Code, prior to issuance of any building permits indicating the fence or
it must be eliminated/removed.
6. ACCESORY BUILDINGS/STRUCTURES
The location of all existing and proposed accessory buildings and/or structures shall be
indicated on building permit plans and shall comply with Chapter 19.100, Accessory
Buildings/Structures, of the Cupertino Municipal Code for review and approval prior to
issuance of building permits.
7. EXTERIOR BUILDING MATERIALS/TREATMENTS
The final building exterior plan shall closely resemble the details shown on the original
approved plans. Final building exterior treatment plan (including but not limited to details
on exterior color, materials, architectural treatments, doors, windows, lighting fixtures,
and/or embellishments) shall be reviewed and approved by the Director of Community
Development prior to issuance of building permits to ensure quality and consistency. Any
exterior changes determined to be substantial by the Director of Community Development
shall either require a modification to this permit or a new permit based on the extent of the
change.
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
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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. FRONT YARD TREE COVENANT
The property owner shall record a covenant on this property with the Santa Clara County
requires the retention and maintenance of the required front yard
Recorder's Office that q q
tree. 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. PRIVACY PLANTING
The final privacy planting plan shall be reviewed and approved by the Planning Division
prior to issuance of building permits. Privacy protection shall include alternative privacy
plantings consistent with the City's requirements and balcony railing of at least 48",
comprised of materials that provide sufficient privacy screening.
11. PRIVACY PROTECTION 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.
12. 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.
13. 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.
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Resolution No.6888 RM-2017-39 November 12,2019
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14. DEMOLITION REQUIREMENTS
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All demolished building and site materials shall be recycled to the maximum extent feasible
subject to the Building Official. The applicant shall provide evidence that materials were
recycled prior to issuance of final demolition permits.
15. DUST CONTROL
The following construction practices shall be implemented during all phases of
construction for the proposed project to prevent visible dust emissions from leaving the
site:
a. Water all active construction areas at least twice daily and more often during windy
periods to prevent visible dust from leaving the site; active areas adjacent to windy
periods; active areas adjacent to existing land uses shall be kept damp at all times, or
shall be treated with non-toxic stabilizers or dust palliatives.
b. Cover all trucks hauling soil, sand, and other loose materials or require all trucks to
maintain at least 2 feet of freeboard;
c. Pave, apply water at least three times daily, or apply (non-toxic) soil stabilizers on all
unpaved access roads,parking areas and staging areas at construction sites.
d. Sweep streets daily, or more often if necessary (preferably with water sweepers) if
visible soil material is carried onto adjacent public streets.
e. The applicant shall incorporate the City's construction best management practices into
the building permit plan set.
16. GRADING AND CONS 1'RUCTION HOURS AND NOISE LIMITS
The applicant shall comply with the following grading and construction hours and noise
limit requirements unless otherwise indicated.
a. All grading activities shall be limited to the dry season (April 15 to October 1), unless
permitted otherwise by the Director of Public works.
b. Construction hours and noise limits shall be compliant with all requirements of Chapter
10.48 of the Cupertino Municipal Code.
c. Grading, street construction, underground utility and demolition hours for work done
more than 750 feet away from residential areas shall be limited to Monday through
Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to 6 p.m. Grading, street
construction, demolition or underground utility work within 750 feet of residential
areas shall not occur on Saturdays, Sundays, holidays, and during the nighttime period
as defined in Section 10.48.053(b) of the Municipal Code.
d. Construction activities shall be limited to Monday through Friday, 7 a.m. to 8 p.m. and
Saturday and Sunday, 9 a.m. to 6 p.m. Construction activities are not allowed on
holidays as defined in Chapter 10.48 of the Municipal Code. Night time construction is
allowed if compliant with nighttime standards of Section 10.48 of the Cupertino
Municipal Code.
e. Rules and regulations pertaining to all construction activities and limitations identified
in this permit, along with the name and telephone number of an applicant appointed
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4111 disturbance coordinator, shall be posted in a prominent location at the entrance to the
job site.
f. The applicant shall be responsible for educating all contractors and subcontractors of
said construction restrictions.
17. 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
set aside, or void this Resolution or anypermit or
applicant to attack, approval authorized
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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.
18. 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
40 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.
Resolution No.6888 RM-2017-39 November 12,2019
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PASSED AND ADOPTED this 12th day of November, 2019, at the Regular Meeting of the
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Planning Commission of the City of Cupertino, State of California, 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: APPROVED: \
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Benjamin Fu R Wang
Director, Community Development Chair, Planning Commission
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