Reso 6909RESOLUTION NO. 6909
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
APPROVING A HILLSIDE EXCEPTION TO ALLOW THE CONSTRUCTION OF
A NEW SWIMMING POOL, SPA, ADJACENT PATIO, AND RELATED
RETAINING WALLS AND GRADING WITHIN THE 15% SITE LINE OF A
PROMINENT RIDGE LINE AND ON SLOPES GREATER THAN 30%
LOCATED AT 11640 REGNART CANYON DRIVE
SECTION I: PROTECT DESCRIPTION
Application No.: EXC-2020-001
Applicant: Jan De Carli
Property Owner: Janet De Carli Trustee & Et Al
Location: 11640 Regnart Canyon Drive (APN#366-33-006)
SECTION II: FINDINGS FOR A HILLSIDE EXCEPTION:
WHEREAS, the Planning Commission of the City of Cupertino received an application
for a Hillside Exception 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, pursuant to the provisions of the California Environmental Quality Act of
1970 (Public Resources Code section 21000 et seq.) ("CEQA"), together with the State
CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.)
(hereinafter, "CEQA Guidelines"), the City staff has independently studied the
proposed Project and has determined that the Project is exempt from environmental
review pursuant to the categorical exemption in CEQA Guidelines section 15303 for the
reasons set forth in the staff report dated August 25, 2020 and incorporated herein; and
WHEREAS, on August 25, 2020, the Planning Commission held a duly noticed public
hearing to receive public testimony on the Project, including the categorical CEQA
exemption in CEQA Guidelines section 15303, and reviewed and considered the
information contained in the staff report pertaining to the Project, all other pertinent
documents, and all written and oral statements received by the Planning Commission at
or prior to the public hearing; and
Resolution No. 6909 EXC-2020-001 August 25, 2020
Page 2
WHEREAS, the applicant has met the burden of proof required to support said
application; and
WHEREAS, the Planning Commission finds as follows with regard to this application:
1. The proposed development will not be injurious to property or improvements in the
area nor be detrimental to public health and safety;
The proposed site is surrounded by existing hillside single-family residences. A geotechnical
study has been conducted for the proposed project and all recommendations of the
geotechnical consultant have been incorporated into the development conditions of the
approval. In addition, the development is required to meet the Best Management Practices
(BMPs), as required by the State Water Resources Control Board and the Bay Area Air
Quality Management District's (BAAQMD) air quality standards for construction
activities. The project is also required to adhere to the City's C.3 Municipal Permit for storm
water runoff management. Therefore, the development will not be injurious to property or
improvements in the area nor be detrimental to the public health and safety.
2. The proposed development will not create a hazardous condition for pedestrian or
vehicular traffic;
The proposed patio and swimming pool will not any new traffic impacts and/or driveways to
the private raod. Therefore, the development will not create a hazardous condition for
pedestrian or vehicular traffic.
3. The proposed development has legal access to public streets and public services are
available to serve the development;
The property is accessed by the private Regnart Canyon Drive. In addition, water and sewer
connections are available in the street. The proposed project does not propose any changes to
such access or services. Therefore, the development has legal access to public streets and
public services to serve the development.
4. The proposed development requires an exception which involves the least
modification of, or deviation from, the development regulations prescribed in this
chapter necessary to accomplish a reasonable use of the parcel;
Any onsite development that disrupts the 15% site line of the prominent ridgeline and
construction of a structure greater than 500 sf on slopes gretare than 30% requires a Hillside
Exception. Development cannot feasibly occur on the property without a Hillside Exception
request as the site is constrained by a prominent ridgeline that runs along the northern
portion of the property. The site is constrained by steep slopes over 30%. The siting and
design of the accessory structures will follow the contours of the site to minimize grading,
Resolution No. 6909 EXC-2020-001 August 25, 2020
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minimize the removal of landscaping and reduce the visibility of retaining walls necessary on
site to develop the property in a manner consistent with the Residential Hillside Ordinance.
5. All alternative locations for development on the parcel have been considered and
have been found to create greater environmental impacts than the location of the
proposed development;
The proposed development will be located on a relatively flat and previously graded portion of
the property in order to avoid excessive grading of the site adjacent to the existing single
family home. Further, the site is constrained by steep slopes that limit areas on the parcel
where development may occur. The siting and design of the accessory structure will follow
the contours of the site to minimize grading, minimize the removal of landscaping and reduce
the visibility of all retaining walls necessary to develop the property in a manner consistent
with the purpose of the Residential Hillside Ordinance.
Other alternative locations for development on the parcel would result in greater grading on
the site and removal of additional landscaping and/or native trees. The proposed development
is located to minimize environmental and grading impacts on the site.
6. The proposed development does not consist of structures on or near known
geological or environmental hazards which have been determined by expert
testimony to be unsafe or hazardous to structures or persons residing therein (See
General Plan Policies 2-49);
The geotechnical report and peer review do not indicate any significant conflicts with
geological or environmental hazards. Additionally, all recommendations of the geotechnical
engineers have been incorporated into the conditions of approval in order to ensure structural
stability of the proposed building. Therefore, the proposed development does not consist of
structures that have been determined by expert testimony to be unsafe or hazardous to
structures or persons residing therein.
7. The proposed development includes grading and drainage plans which will ensure
that erosion and scarring of the hillsides caused by necessary construction of roads,
housing sites, and improvements will be minimized (See General Plan Policies 2-53,
2-54 and 2-57);
The proposed development follows, as closely as possible, the primary natural contours of the
lot to minimize erosion and scarring of the hillsides caused by necessary construction of the
housing site and improvements. Drainage and grading plans have been reviewed and will
continue to be reviewed by the City Engineer and the City's consultant geotechnical
engineers to ensure the safety of the development and of those neighboring residences.
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8. The proposed development does not consist of structures which would disrupt the
natural silhouette of ridgelines as viewed from established vantage points on the
valley floor unless either:
a. The location of a structure on a ridgeline is necessary to avoid greater negative
environmental impacts; or
b. The structure could not otherwise be physically located on the parcel and the size
of the structure is the minimum which is necessary to allow for a reasonable use
of the parcel (See General Plan Policies 2-46, 2-47 and 2-48);
There is a potential that the addition of the pool and patio could disrupt the natural silhouette
of the ridgeline. However, because the proposed development will be located adjacent to the
existing single family home, it not only avoids excessive grading of the site, but the silhouette
disruption will be negligeable. Further, the site is constrained by steep slopes that limit areas
on the parcel where development may occur. The siting and design of the accessory
structures will follow the contours of the site to minimize grading, minimize the removal of
landscaping and reduce the visibility of all retaining walls necessary to develop the property
in a manner consistent with the purpose of the Residential Hillside Ordinance. Additionally,
to address screening issues with regard to the existing two-story structure and fix a prior
violation, the applicant is being required to plant screening trees.
Other alternative locations for development on the parcel would result in greater grading on
the site, removal of additional landscaping and/or native trees. The proposed development
will be located to minimize environmental and grading impacts on the site.
9. The proposed development consists of structures incorporating designs, colors,
materials, and outdoor lighting which blend with the natural hillside environment
and which are designed in such a manner as to reduce the effective visible mass,
including building height, as much as possible without creating other negative
environmental impacts (See General Plan Policies 2-46, 2-50, 2-51 and 2-52);
The applicant is required to use natural earth tone and/or vegetation colors, which blend with
the natural hillside environment (as a condition of approval) and has designed the project in
such a manner as to reduce the effective visible mass to surrounding neighbors as much as
possible.
10. The proposed development is located on the parcel as far as possible from public
open space preserves or parks (if visible there from), riparian corridors, and wildlife
habitats unless such location will create other, more negative environmental impacts
(See General Plan Policies 2-55, 5-14 and 5-28);
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The parcel is not located adjacent to public open space preserves, parks, a riparian corridor,
or wildlife habitats. The project site is adjacent to other developed properties with a similar
zoning.
11. The proposed development includes a landscape plan, which retains as many
specimen trees as possible, which utilizes drought -tolerant native plants and ground
covers consistent with nearby vegetation, and which minimizes lawn areas (See
General Plan Policies 2-54, 5-15 and 5-16);
A preliminary landscape plan has been evaluated and the project is conditioned to provide a
landscape plan to be reviewed and approved prior to Building Permit issuance. The project
shall also comply with Chapter 14.15: Landscape Ordinance of the City of Cupertino
Municipal Code (CMC). Additionally, since the site is located in an area designated as
Wildland Urban Interface by CMC Chapter 16.74, fire -prone plant materials and highly
flammable mulches are strongly discouraged. In conformance with California Public
Resources Code Section 4291, plants shall be selected, arranged, and maintained to provide
defensible space for wildfire protection. The installation of invasive plant species and noxious
weeds is also prohibited. Further, Residential Hillside homes are required to minimize turf
areas on hillsides and turf may not be planted on slopes greater than 25%.
Through the proposed site design and conditions of approval, which limit invasive species of
plants and turf areas, a balance between the residential development and preservation of the
natural hillside setting can be maintained.
12. The proposed development confines solid fencing to the areas near a structure
rather than around the entire site (See General Plan Policy 5-17); and
To allow free movement of animals, in compliane with the RHS fencing standards, only
5,000 square feet (excluding the principal building) of net lot area may be enclosed with solid
fencing.
13. The proposed development is otherwise consistent with the City's General Plan and
with the purposes of this chapter as described in Section 19.40.010.
The development meets all the development standards for RHS zoned properties and is
consistent with the City's General Plan and with the purposes of Chapter 19.40 as described
in Section 19.40.010. These have been described in detail in each of the findings above.
WHEREAS, the Planning Commission has independently reviewed and considered the
Project and the basis for the exemption prior to taking any approval actions on the
Project, and exercising its independent judgment, based upon the entire record before it,
has determined that the Project is exempt from CEQA pursuant to CEQA Guidelines
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section 15303, which applies to new construction or conversion of single-family
residences and accessory structures; and
WHEREAS, the Planning Commission determined that the project is categorically
exempt in accordance with CEQA Guidelines sections 15303; and
NOW, THEREFORE, BE IT RESOLVED that the Planning Commission takes the
following actions:
1. Exercises its independent judgment and determines that the Project is exempt from
CEQA pursuant to CEQA Guidelines section 15303. The exemption in CEQA Guidelines
section 15303 applies to new construction or conversion of single-family residences and
accessory structures.
2. Approves the application for a Hillside Exception, Application no. EXC-2020-001
subject to the conditions which are enumerated in this Resolution beginning on PAGE 6
thereof. The conclusions and subconclusions upon which the findings and conditions
specified in this resolution are based, including those contained in the Public Hearing
record concerning Application no. EXC-2020-001 as set forth in the Minutes of Planning
Commission Meeting of August 25, 2020, are hereby incorporated by reference as though
fully set forth herein.
NOW, THEREFORE, BE IT FURTHER RESOLVED that the foregoing recitals are true
and correct and are included herein by reference as findings.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set consisting of 12 sheets, labled Sheets L-1.0 through
L-9 entitled, "Karen & Ken Tersini Residences," drawn and submitted by Whisler
Land Planning, the Topographic Survey consisting of one (1) sheet, submitted by
MH engineering Co.
2. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
first page of the building plans.
3. ACCURACY OF PROTECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations, building setbacks,
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property size, building square footage, any relevant easements and/or construction
records. Any misrepresentation of any property data may invalidate this approval
and may require additional review.
4. 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 exterior colors and materials shall be natural earth
tones and have low light reflectivity values of 60 or less. 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.
5. DEMOLITION REQUIREMENTS
All demolished building and site materials shall be recycled to the maximum extent
feasible to the satisfaction of the Building Official. The applicant shall provide
evidence that materials were recycled prior to issuance of final demolition/grading
permits.
6. PRE -CONSTRUCTION MEETING AND CONSTRUCTION MANAGEMENT PLAN
Prior to commencement of construction activities, the applicant shall arrange for a
pre -construction meeting with the pertinent departments (including, but not limited
to, Building, Planning, Public Works, Santa Clara County Fire Department), prior to
issuance of grading and/or building permits, to review an applicant -prepared
construction management plan including, but not limited to:
a. Plan for compliance with conditions of approval
b. Plan for public access during work in the public right-of-way
c. Construction staging area
d. Construction schedule and hours
e. Construction phasing plan, if any
f. Contractor parking area
g. Tree preservation/protection plan
h. Site dust, noise and storm run-off management plan
i. Emergency/complaint and construction site manager contacts
7. CONSTRUCTION HOURS
The applicant shall comply with the standards in Chapter 10.48, Community Noise
Control, of the Cupertino Municipal Code. The developer shall be responsible for
educating all contractors and subcontractors of said construction restrictions. Rules
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and regulation pertaining to all construction activities and limitations identified in
this permit, along with the name and telephone number of a developer appointed
disturbance coordinator, shall be posted in a prominent location at the entrance to
the job site, prior to commencement of demolition and/or grading activities.
8. LANDSCAPE PROTECT SUBMITTAL:
The applicant shall submit a full landscape project submittal, per sections 490.1,
492.1, and 492.3 of the Department of Water Resources Model Water Efficient
Landscape Ordinance, for projects with landscape area more than 500 square feet;
the applicant shall submit either a full landscape project submittal or submit the
Prescriptive Compliance Checklist per Appendix D of the Department of Water
Resources Model Water Efficient Landscape Ordinance for projects with landscape
area more than 500 square feet and less than 2,500 square feet. The Landscape
Documentation Package or Prescriptive Compliance Checklist shall be reviewed and
approved to the satisfaction of the Director of Community Development prior to
issuance of building permits.
9. TREE REPLACEMENT FOR TOPPED TREES
Six (6) former/existing trees that were topped shall be replaced on a 1 to 1 basis with
six (6) 48-inch box or nine (9) 24-inch box California native Incense Cedars planted
along the northeastern and eastern downhill slopes in order to screen the existing
two-story house from the valley floor. An updated landscaping plan shall be
provided to staff for review and approval to the satisfaction of the Director of
Community Development prior to issuance of building permits.
10. 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.
11. INDEMNIFICATION AND LIMITATION OF LIABILITY
As part of the application, to the fullest extent permitted by law, the applicant shall
agree to indemnify, defend with the attorneys of the City's choice, and hold
harmless the City, its City Council, and its officers, employees, and agents
(collectively, the "indemnified parties") from and against any liability, claim, action,
cause of action, suit, damages, judgment, lien, levy, or proceeding (collectively
referred to as "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
related to any Ordinance, Resolution, or action approving the project, the related
Resolution No. 6909 EXC-2020-001 August 25, 2020
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entitlements, environmental review documents, finding or determinations, or any
other permit or approval authorized for the project. The indemnification shall
include but not be limited to damages, fees, and costs awarded against the City, if
any, and cost of suit, attorneys' fees, and other costs, liabilities, and expenses
incurred in connection with such proceeding whether incurred by the Applicant, the
City, or the parties initiating or bringing such proceeding.
The applicant shall agree to (without limitation) reimburse the City its actual
attorneys' fees and costs incurred in defense of the litigation. Such attorneys' fees
and costs shall include amounts paid to the City's outside counsel 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. The applicant
shall likewise agree to indemnify, defend, and hold harmless the indemnified
parties from and against any damages, attorneys' fees, or costs awards, including
attorneys' fees awarded under Code of Civil Procedure section 1021.5, assessed or
awarded against the indemnified parties. The Applicant shall cooperate with the
City to enter a Reimbursement Agreement to govern any such reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment) if made necessary
by proceedings challenging the project approvals and related environmental review,
if the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
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.
Resolution No. 6909 EXC-2020-001 August 25, 2020
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SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS
DEPARTMENT
1. GRADING
A grading permit is required for the proposed free-standing retaining walls that are
greater than four feet (including foundation). Grading shall be as approved and
required by the Director of Public Works in accordance with Chapter 16.08 of the
Cupertino Municipal Code. 401 Certifications and 404 permits maybe required.
Please contact Army Corp of Engineers and/or Regional Water Quality Control
Board as appropriate.
2. DRAINAGE
Drainage shall be provided to the satisfaction of the Director of Public Works.
Hydrology and pre- and post -development hydraulic calculations must be provided
to indicate whether additional storm water control measures are to be constructed or
renovated. The storm drain system may include, but is not limited to, subsurface
storage of peak stormwater flows (as needed), bioretention basins, vegetated swales,
and hydrodynamic separators to reduce the amount of runoff from the site and
improve water quality. The storm drain system shall be designed to detain water on -
site (e.g., via buried pipes, retention systems or other approved systems and
improvements) as necessary to avoid an increase of the ten percent flood water
surface elevation to the satisfaction of the Director of Public Works. Any storm
water overflows or surface sheeting should be directed away from neighboring
private properties and to the public right of way as much as reasonably possible.
3. FEES AND BONDS
The project developer shall provide payment of fees, including but not limited to
checking and inspection fees, storm drain fees, park dedication fees and fees for
under grounding of utilities. Said fees shall be executed and paid prior to issuance of
Building permit.
Fees:
a. Checking & Inspection Fees: Per current fee schedule ($891)
b. Grading Permit: Per current fee schedule ($3,059 or 6% of
improvement costs)
c. Storm Drainage Fee: Per current fee schedule ($3,645 per DU)
Bonds:
a. On -site Grading Bond: 100% of site improvements.
The fees described above are imposed based upon the current fee schedule adopted
by the City Council. However, the fees imposed herein may be modified at the time
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of recordation of a final map or issuance of a building permit in the event of change
or changes, the fees changed at that time will reflect the then current fee schedule.
4. BEST MANAGEMENT PRACTICES
Utilize Best Management Practices (BMPs), as required by the State Water Resources
Control Board, for construction activity, which disturbs soil. BMP plans shall be
included in grading and street improvement plans.
5. EROSION CONTROL PLAN
Developer must provide an approved erosion control plan by a Registered Civil
Engineer. This plan should include all erosion control measures used to retain
materials on site. Erosion control notes shall be stated on the plans.
6. WORK SCHEDULE
Every 6 months, the developer shall submit a work schedule to the City to show the
timetable for all grading/erosion control work in conjunction with this project.
7. DEDICATION OF UNDERGROUND WATER RIGHTS
Developer shall "quit claim" to the City all rights to pump, take or otherwise extract
water from the underground basin or any underground strata in the Santa Clara
Valley.
8. UPDATED GEOTECHNICAL INVESTIGATION
The Project Geotechnical Consultant should perform a focused geotechnical
investigation of the proposed retaining wall and pool development, including, but
not limited to, the following items:
■ Subsurface investigation should be performed to span the limits of the retaining
wall footprint area to assure that the subsurface geologic materials have been
adequately characterized. The proposed development spans over 100 feet of
distance across the ridgeline, with variable fill and colluvial soil depths, and
thus, warrants further subsurface exploration.
■ Retaining wall and pool foundation recommendations should be provided.
Swimming pool recommendations have been provided in the referenced
geotechnical report, including recommendations for supporting the pool shell on
reinforced concrete piers extending a minimum of 5 feet into bedrock. It is our
opinion that the minimum pier embedment depth into rock should be re-
evaluated, particularly with the combined thickness of existing fill and colluvial
soil exceeding 6 feet in the one exploratory boring, and laboratory test results
that demonstrate moderate to highly expansive soil and rock.
■ Hillside stability should be evaluated based upon the surcharge loads imposed
from the proposed retaining walls.
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9. STRUCTURAL PLANS AND CALCULATIONS
Structural plans and calculations should be generated that incorporate the
recommendations of the Project Geotechnical Consultant.
10. GEOTECHNICAL PLAN REVIEW
The applicant's geotechnical consultant should review and approve all geotechnical
aspects of the development plans (i.e., site preparation and grading, site drainage
improvements and design parameters for foundations, drainage, pavement and
retaining walls) to ensure that their recommendations have been properly
incorporated. The Updated Geotechnical Investigation, Structural Plans and
Geotechnical Plan Review should be submitted to the City for review and approval
by the City staff and City Geotechnical Consultant prior to issuance of building
permits.
11. GEOTECHNICAL FIELD INSPECTION
The geotechnical consultant and engineering geologist should inspect, test (as
needed), and approve all geotechnical aspects of the project construction. The
inspections should include, but not necessarily be limited to: site preparation and
grading, site surface and subsurface drainage improvements and excavations for
foundations and retaining walls prior to the placement of steel and concrete. The
results of these inspections and the as -built conditions of the project should be
described by the consultants in a letter and submitted to the City Engineer for
review prior to final project (as -built) approval.
PASSED AND ADOPTED this 25th day of August, 2020, Regular Meeting of the
Planning Commission of the City of Cupertino, State of California, by the following roll
call vote:
AYES: COMMISSIONERS: Chair Moore, Vice Chair Wang, Takahashi, Fung,
Saxena
NOES: COMMISSIONERS: none
ABSTAIN: COMMISSIONERS: none
ABSENT: COMMISSIONERS: none
ATTEST:
Benjamin Fu
Director of Community Development
APPROVED:
Kitty Moore
Chair, Planning Commission
1279494.1 R Wang Acting Chair for Kitty Moore