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02. M-2005-04 Bret Moxley CITY OF CUPERTINO 10300 Torre Avenue, Cupertino, Calüornia 95014 DEPARTMENT OF COMMUNITY DEVELOPMENT REPORT FORM Application: M-2005-04 Agenda Date: February 14, 2006 Applicant: Bret Moxley Property Owner: John & Karen Knopp Property Location: 21925 Lindy Lane, APN 356-25-014 Project Consistency with: General Plan Yê- Zoning ~ Environmental Review: Categorically Exempt Application Summary: Modification to an approved Tentative Map (file no. TM-2005- 03) to allow vehicular access to Lot #2 from Lindy Lane. RECOMMENDATION: Staff recommends denial of the Modification of the Tentative Map (M-2005-04) in accordance with the model resolution. BACKGROUND: On July 26, 2005 the Planning Commission approved a 2-lot subdivision of an approximately 1.0 acre site with each lot to be about 20,000 net square feet (Exhibits A & B). The decision was not appealed and became effective 10 calendar days later. Issues with grading, preservation of existing tree cover and visual impact prompted the Commission to: 1) Require a slope easement across the fronts of Lot #1 and #2. The easement would ensure the preservation of existing landforms, trees and vegetation by precluding future development in the area other than the necessary undergrounding of utility lines (Conditions #2 and #3). 2) Limit vehicular access for Lot #2 to the access obtain from an existing ingress! egress easement located to the westerly side of Lot #2. The Commission recognized that access via this existing driveway would have minimal grading or visual impacts compared to other alternatives (Condition #6). Please refer to the following illustration, which depicts the spatial relationships between the development area (building pad) and the preservation area (slope easement area). J-/ 3 been pending since September 2005 as the property owner and applicant attempted to negotiate a voluntary agreement with the easement grantor (Schmidt) for the use of the driveway for Lot #2 (Exhibit D). According to the applicant's letter, they have tried their past goodwill, offered to accept all road maintenance obligations and persuasion through legal counsel to no avail. Also, the lack of legal certainty of Lot #2' s access, has prevented the owner from obtaining title insurance, which is needed to complete the sale of the properties upon the completion of the final map (Exhibit E). As depicted on the tentative map, the proposed driveway is situated in a 20% sloped area between Coast Live Oaks numbered 10 and 11. There is about a 6-foot rise in elevation in this area, so the necessary retaining walls on both sides of the proposed driveway can be maintained at 4 feet or less per condition #2 of the tentative map approval. The City Arborist report on the potential impact of the driveway on the nearby oaks (Exhibit F) states that the driveway could be aligned and built between oaks #10 and #11 without causing unacceptable levels of harm to the subject trees, if the suggested construction methods are followed. The properties along the north side of Lindy Lane retain a semi-rural appearance as viewed from Lindy Lane, which is of concern to adjacent neighbors on the opposite side of the street. Staff has received email messages opposing the project (Exhibit C). The band of mature vegetation along the lower slope or street side can continue to screen the subdivision of land and construction of larger residences if its maintained without the encroachment of new development. Staff believes it is important to screen the new homes behind the tree grove, which would be more difficult by introducing another driveway and retaining walls along Lindy Lane. The driveway would also hinder further oak growth in the area that can add to the vegetative screen. General Plan Policies 2-53 and 2-56 provide that hillside developments must preserve the rural character of the hillside and minimize the disturbance to natural landforms and existing vegetation and trees. This can best be achieved by utilizing the existing ingress! egress easement for access, rather than creating a new driveway through the vegetated slope easement area. Staff recommends retaining the existing tentative map condition of approval (#6) that requires access from the ingress! egress easement, by denying the modification request, M-2005-04. Similar to the adjacent Sun property subdivision, which created a slope easement along Lindy Lane and required access at the top of the property, staff believes that the steep slope and rural street character should be retained. The applicant can continue to pursue obtaining access from the easement. ;L~3 4 Enclosures: Model Resolution Exhibit A - Planning Commission Resolution No. 6313 Exhibit B - Draft July 26, 2005 Planning Commission Meeting minutes Exhibit C - Letter to the Planning Commission from Bill Schmidt dated July 25, 2005 Exhibit D - Letter of Justification from Bret Moxley dated January 31, 2006 Exhibit E - Forwarded email message from Tim Ward to Bret Moxley regarding title insurance Exhibit F - Arborist Report prepared by Barrie Coate and dated October 4, 2005 Exhibit G - Public comments on application Revised Tentative Map Prepared by: Colin Jung, Senior Planner Approved by: Steve Piasecki, Director of Community Development G:planningjPDREPORT j pcMreportsjM2005reportsjM-2005-04 n,' ~..~ ~_,,' ,ó} , / -c u·-C· -< ¿'..>a.V L' Þ...... / t~- J.-+ M-200S-04 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 9S014 MODEL RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO DENYING A MODIFICATION TO A TENTATIVE MAP (TM-2005-03) TO PROVIDE ACCESS FOR LOT #2 FROM LINDY LANE SECTION I: PROTECT DESCRIPTION Application No.: Applicant: Location: M-2005-04 Bret Moxley (Lands of Knopp) 21925 Lindy Lane SECTION II: FINDINGS WHEREAS, the Planning Commission of the City of Cupertino received an application for a Tentative Subdivision Map as described in Section I of this Resolution; and WHEREAS, the necessary public notices have been given as required by the Subdivision and Procedural Ordinances of the City of Cupertino, and the Planning Commission has held at least one public hearing in regard to the application; and WHEREAS, the applicant has not met the burden of proof required to support said application; and has not satisfied the following requirements: a) That the proposed subdivision modification is consistent with the City of Cupertino General Plan. The rural character of the hillside would not be preserved and disturbance to natural landforms and existing vegetation and trees would not be minimized (General Plan Policies #2.53 and #2.56). b) That the improvements of the proposed subdivision are consistent with the General Plan. The improvements would introduce grading impacts and retaining walls on a vegetated slope, which can be avoided by utilizing an environmentally superior alternate driveway location. NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter, the application M-2005-04 for a Modification to a Tentative Map is hereby denied, and That the subconcIusions upon which the findings and conditions specified in this Resolution are based and contained in the Public Hearing record concerning 02-5 Resolution No. Page 2 M-2005-04 February 14,2006 Application M-2005-04, as set forth in the Minutes of Planning Commission Meeting of February 14, 2006, and are incorporated by reference as though fully set forth herein. PASSED AND ADOPTED this 14th day of February 2006, at a Regular Meeting of the Planning Commission of the City of Cupertino, State of California, by the following roll call vote: AYES: NOES: ABSTAIN: ABSENT: COMMISSIONERS: COMMISSIONERS: COMMISSIONERS: COMMISSIONERS: ATTEST: APPROVED: Steve Piasecki Director of Community Development Marty Miller, Chairperson Cupertino Planning Commission g:/planning/pdreportjres/M-2OO5-04 res.doc ;¿-~ E-'í-\-\-\Bn: ft TM-2005-03 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 RESOLUTION NO. 6313 OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO APPROVING A TENT A TIVE MAP TO SUBDIVIDE A 1.0 ACRE PARCEL INTO TWO LOTS OF ABOUT 20,000 SQUARE FEET EACH IN SIZE IN AN Rl-20 ZONING DISTRICT AT 21925 LINDY LANE SECTION I: PROTECT DESCRIPTION Application No.: Applicant: Location: TM-2005-03 Bret Moxley 21925 Lindy Lane SECTION II: FINDINGS WHEREAS, the Planning Commission of the City of Cupertino received an application for a Tentative Subdivision Map as described in Section I of this Resolution; and WHEREAS, the necessary public notices have been given as required by the Subdivision and Procedural Ordinances of the City of Cupertino, and the Planning Commission has held at least one public hearing in regard to the application; and WHEREAS, the applicant has met the burden of proof required to support said application; and has satisfied the following requirements: a) That the proposed subdivision map is consistent with the City of Cupertino General Plan. b) That the design and improvements of the proposed subdivision are consistent with the General Plan. c) That the site is physically suitable for the type and intensity of development contemplated under the approved subdivision. d) That the design of the subdivision or the proposed improvements are not likely to cause substantial environmental damage nor substantially and avoidable injure fish and wildlife or their habitat. e) That the designs of the subdivision or the type of improvements associated therewith are not likely to cause serious public health problems. ;¿ -7 Resolution No. 6313 Page 2 TM-2005-03 July 26,2005 NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter, the application TM-2005-03 for a Tentative Map is hereby approved subject to the conditions which are enumerated in this Resolution beginning on page 2 thereof, and That the subconclusions upon which the findings and conditions specified in this Resolution are based and contained in the Public Hearing record concerning Application TM-2005-03, as set forth in the Minutes of Planning Commission Meeting of July 26, 2005, and are incorporated by reference as though fully set forth herein. SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. APPROVED EXHIBITS Approved is based on the tentative map entitled "TENTATIVE MAP, LANDS OF KNOPP, 21925 LINDY LANE, CUPERTINO, CA" by Nelsen Engineering, dated May 2005, and consisting of one sheet labeled 1. 2. FUTURE BUILDING AREA The applicant! owner shall submit a revised tentative map clearly delineating the limits of development to closely reflect the illustrations included in the Planning Commission staff report dated July 26, 2005. In addition, no retaining walls over 4 feet tall (measured from the natural grade) shall be constructed on the project site. 3. SLOPE EASEMENT The applicant! owner shall submit a revised tentative map clearly delineating the required slope easement to closely reflect the illustrations included in the Planning Commission staff report dated July 26, 2005. The easement is required to be recorded on the property ensuring that the existing landforms, trees and vegetation be preserved, and precluding any future developments or improvements in this area, except for necessary undergrounding of utility lines that do nòt adversely affect the specimen size native oak trees. 4. TREE PRESERVATION No trees are to be removed as part of the tentative map approval. The tree protection measures outlined in the City Arborist's report dated June 29, 2005 shall be conditions of this project. Prior to the issuance of grading and building permits, the City Arborist shall confirm the implementation of the tree protection measures. Prior to the final occupancy, the City Arborist shall confirm that the protected trees have been preserved and survived the construction activities. In the event that any protected trees must be removed due to reasons deemed appropriate by the Community Development Director, then comparable diameter replacement tree(s) must be planted at the same location or locations visible to the public. ';¿~ß Resolution No. 6313 Page 3 TM-2005-03 July 26, 2005 Prior to final map approval, a covenant shall be recorded on the property, notifying future property owners of the kinds and numbers of specimen trees protected by City Ordinance and the requirement for a tree removal permit for these trees. The covenant shall be reviewed and approved by the City Attorney. 5. DRIVEWAY MAINTENANCE AGREEMENT Prior to final map approval, a driveway maintenance agreement shall be recorded for existing driveway benefiting Lot #1. 6. DRIVEWAY ACCESS FOR LOT #2 Vehicular access for Lot #2 shall be taken off the ingress! egress easement to the west side of Lot #2 in order to limit grading impacts. 7. CONSTRUCTION MANAGEMENT PLAN A comprehensive construction operation plan must be submitted to the City for review and approval prior to issuance of grading and building permits addressing the following: · Staging area · Tree protection · Construction hours and limits · Construction vehicle and truck routes · Dust and erosion control · Garbage and debris container location and pick up schedule · Signage advising contractors of the restrictions In addition to the construction management plan described above, the following' additional construction activity limitations apply: · No grading is allowed during the rainy season - October through April. · On Saturdays, grading, street construction, demolition, underground utility work and other construction work that directly involves motorized vehicular equipment are prohibited. · On Sundays, construction is prohibited. 8. DEVELOPMENT STANDARDS The project and future developments shall adhere to the RHS Ordinance or the Rl Ordinance whichever specific regulation in each ordinance is more restrictive. 9. 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 .;;2-q Resolution No. 6313 Page 4 TM-200S-03 July 26, 2005 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. 10. ADDITIONAL GEOTECHNICAL INVESTIGATIONS Prior to the approval of grading or building permits, a detailed geotechnical, design-level investigation shall be performed in accordance with the recommendations outlined in a letter from Cotton Shires & Associates to Colin Jung, Cupertino City Planner dated June 29, 2005. 11. CALCULATION OF NET LOT SIZE OF LOT #2 For the purposes of subdivision, floor area ratio and building coverage, the area of the ingress! egress easement shall not be subtracted from the lot area to calculate net lot size. SECTION IV. CONDITIONS ADMINISTERED BY THE PUBLIC WORKS DEPARTMENT 12. STREET WIDENING Street widening, improvements and dedications shall be provided in accordance with City Standards and specifications and as required by the City Engineer. 13. CURB AND GUTTER IMPROVEMENTS Curbs and gutters, sidewalks and related structures shall be installed in accordance with grades and standards as specified by the City Engineer. 14. STREET LIGHTING INSTALLATION Street lighting shall be installed and shall be as approved by the City Engineer. Lighting fixtures shall be positioned so as to preclude glare and other forms of visual interference to adjoining properties, and shall be no higher than the maximum height permitted by the zone in which the site is located. 15. FIRE HYDRANT Fire hydrants shall be located as required by the City Engineer. 16. TRAFFIC SIGNS Traffic control signs shall be placed at locations specified by the City, as required. 17. STREET TREES Street h'ees shall be planted within the Public Right of Way and shall be of a type approved by the City in accordance with Ordinance No. 125. c2 -ID Resolution No. 6313 Page 5 TM-2005-03 July 26, 2005 18. GRADING Grading shall be as approved and required by the City Engineer in accordance with Chapter 16.08 of the Cupertino Municipal Code. 401 Certifications and 404 permits maybe required. Please contacfArmy Corp of Engineers and! or Regional Water Quality Control Board as appropriate. 19. DRAINAGE Drainage shall be provided to the satisfaction of the City Engineer. Surface flow across public sidewalks may be allowed in the R-l, R-2 and R-3 zones unless the City Engineer deems storm drain facilities necessary. Development in all other zoning districts shall be served by on site storm drainage facilities connected to the City storm drainage system. If City storm drains are not available, drainage facilities shall be installed to the satisfaction of the City Engineer. 20. FIRE PROTECTION Fire sprinklers shall be installed in any new construction to the approval of the City, as required. 21. UNDERGROUND UTILITIES The developer shall comply with the requirements of the Underground Utilities Ordinance No. 331 and other related Ordinances and regulations of the City of Cupertino, and shall coordinate with affected utility providers for installation of underground utility devices. The developer shall submit detailed plans showing utility underground provisions. Said plans shall be subject to prior approval of the affected Utility provider and the City Engineer. 22. IMPROVEMENT AGREEMENT The project developer shall enter into a development agreement with the City of Cupertino providing for payment of fees, including but not limited to checking and inspection fees, storm drain fees, park dedication fees and fees for undergrounding of utilities. Said agreement shall be executed prior to issuance of construction permits. Fees: a. Checking & Inspection Fees: b. Grading Permit: c. Development Maintenance Deposit: d. Storm Drainage Fee: e. Power Cost: f. Map Checking Fees: g. Park Fees: $ 5% of Off-Site Improvement Cost or $2,130.00 minimum $ 5% of Site Improvement Cost $ 1,000.00 $ 1,293.87 N/A $ 2,000.00 $ 15,750.00 Bonds: ¿;¿ -It Resolution No. 6313 Page 6 TM-2005-03 July 26, 2005 a. Faithful Performance Bond: 100% of Off-site and On-site Improvements b. Labor & Material Bond: 100% of Off-site and On-site Improvement c. 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 of recordation of a final map or issuance of a building permit in the event of said change or changes, the fees changed at that time will reflect the then current fee schedule. 23. TRANSFORMERS Electrical transformers, telephone vaults and similar above ground equipment enclosures shall be screened with fencing and landscaping or located underground such that said equipment is not visible from public street areas. 24. DEDICATION OF WATERLINES The developer shall dedicate to the City all waterlines and appurtenances installed to City Standards and shall reach an agreement with San Jose Water for water service to the subject development. 25. BEST MANAGEMENT PRACTICES Utilize Best Management Practices (BMP's), as required by the State Water Resources Control Board, for construction activity, which disturbs soil. BMP plans shall be included in your grading and street improvement plans. Erosion and or sediment control plan shall be provided. PASSED AND ADOPTED this 26th day of July 2005, at a Regular Meeting of the Planning Commission of the City of Cupertino, State of California, by the following roll call vote: NOES: ABSTAIN: ABSENT: COMMISSIONERS: Giefer, Vice-Chair Miller, Saadati & Chairperson Wong COMMISSIONERS: COMMISSIONERS: COMMISSIONERS: Chen AYES: ATTEST: APPROVED: / s/ Steve Piasecki Steve Piasecki Director of Community Development / s/ Gilbert Wong Gilbert Wong, Chairperson Cupertino Planning Commission g:/planning/pdreport/res(TM-2005-03 res.doc )-/:1, Cupertino Planning Commission 22 E-x.\'\\bìt:6 July 26, 2005 Applicant: · Agreed to the continuance, to return on September 13"' to respond to the outstanding issues. DtFTPÎ Motion: Motion by Vice Chair Miller, second by Com. Saadati, to continue Application M-2005-02 to the September 13, 2005 Planning Commission meeting. (Vote: 4-0-0; Com. Chen absent) Chair Wong declared a short recess. 7. TM·2005-03 John Knopp (Moxley Properties) 21925 Lindy Lane Subdivision of a 43,583 square foot parcel into two 20,000 square foot (net) parcels. Planning Commission decision final unless appealed within 10 days Colin Jung, Senior Planner, presented the staff report: · Distributed a letter from Bill Schmidt, owner of property north of the applicant's property; and a sheet illustrating Figure 3 from the geotechnical report. · He reviewed the application for subdivision of the 43,583 square foot parcel into two parcels as outlined in the staff report. He noted that the property as well as a number of other properties were on the north side of Lindy Lane and have been part of the General Plan discussions, particularly relative to whether the designation . should have been changed on the properties from its current designation of low density residential, 1-5 dwelling units per acre, to a more hillside General Plan designation which is very low density residential that has the application for slope density formulas. · Neighborhood issues: The main concerns are preserving the semi rural character of the hillside area; preserving the large oak trees present on the property; 'addressing the geologic concerns regarding landslides; ingress/egress easement granted to Mr. Knopp for his property; and the question about whether utilities would be allowed on it, or whether there is an overburdening of the easement by creating an additional lot that would also use the ingress/easement; various construction issues relative to parking by construction vehicles, hours of operation, noise, and staging of operations. · To address the concerns, staff is proposing to limit the size of the building footprint and preserving the oak trees with a slope easement to maintain the semi-rural appearance and to protect the oaks on the property. An additional condition of approval would be requiring a design level geotechnical study when a residence is proposed. He noted that it was a subdivision of property with no proposal for a residence at the current time; the owner is interested in subdividing property, and not interested in building a second residence; that would be left up to a future of the property itself. · Lastly, have the applicant and the driveway property owner resolve the issues regarding the ingress/egress easement and if that is not possible, the Planning Commission may need to consider a separate access for the lot taken off Lindy Lane. This is a new condition being proposed by staff. The Deputy City Attorney will probably want to weigh in on that. · Staff recommends approval of the Tentative Map. Com. Saadati: · Asked why the applicant proposed a 10 foot retaining wall when there is no plan at this point to build any unit. Mr. Jung: · Responded that there was no proposal to build a retaining wall; it was a conceptual plan ;)-/3 Cupertino Planning Commission 23 July 26, 2005 submitted by the civil engineer to show the feasibility of developing the property. It was an idea he had and not a part of the application. Mr. Piasecki: · Noted that the conditions state that along with creating a slope easement, staff has suggested a condition that would limit retaining walls to a maximum of 4 feet; they would have to work out how to place the home and accomplish that, because staff does not want 10 foot retaining walls. Com. Saadati: · Asked about the history of sliding in the area of adjacent homes or the existing home. Mr. Piasecki: · Said that the drawing illustrated some regarding or unengineered fill going on that may not be directly sliding, but may relate to that. Suggested that the applicant address what has been going on the lower hillside area. Mr. Jung: · Relative to the drawing of Figure 3, in the city geologist report he expressed a concern that if a house was built below the unengineered fill, it is most likely the most difficult constraint on the property itself and he would most likely require that either an unengineered fill be removed and recompacted, or that there be a retaining wall put in with deep enough piers to make sure that if the fill ever became loose, it would be held back by the retaining wall. Com. Giefer: · Given the new infonnation regarding access on the shared driveway, if it was necessary allow vehicular access fi'om Lindy Lane to the new lot, where would that driveway be. Mr. Jung: · It would likely be where the proposed driveway was drawn; it is the area of the fi'ontage of the lot which seems to be the least steep. Mr. Piasecki: · Said that staff would not suggest that option until there was a very precise drawing. Everything seen thus far is predicated on the idea that it would be gaining access fi'om that existing driveway and the easement. · They did not want retaining walls greater than 4 feet, and putting in a new driveway in that location would give much higher retaining walls and might be cause to reconsider whether the subdivision makes sense. Com. Giefer: · With this new infonnation, why are we considering this instead of continuing it? Mr. Piasecki: · You may end up continuing it; it is similar to the issue you had with the Bunker application where you said there seems to be three options available; you Can apply a similar condition to this application and proceed with it. You could have that kind of condition saying work it out and we will approve it only with the condition that you work it out, and it hasn't been able to be worked out in the other case. .;I-Itf Cupertino Planning Commission 24 July 26, 2005 Mr. Jung: · The applicants had a conversation with Mr. Schmidt after the letter was written; you will likely want to talk to him about that. Com. Giefer: · In reading the city geologist's report, it seems we have some different ideas to pursue; but it appears that we have either the retaining wall as part of the home or we have removal of the non-engineered fill which would probably take out the trees above it. Is that correct? Mr. Jung: · That is likely. Com. Giefer: · Asked for a review of the reason for the recommendation to split a lot at the division line running east/west vs. north/south. Mr. Piasecki: · It was felt that the least visible building site is located between the oak tree groves Mr. Jung pointed out; which exist to the west side of the lot; we felt that with the slope easements on the rrontage of the eastern lot that you could preserve the semi-rural character as you come down Lindy Lane; and that it made more sense to keep that as part of the existing house because they are looking out on to it, and they would be more likely to want to keep it highly maintained and clean. One of the maps shows that their water access comes off Lindy Lane directly rrom the site anyway, so we feel that the north/south division sets up an even more constrained new lot with a limited building area with an easement that is going to prevent them rrom climbing up the hill and take advantage of the views; and the property owner would not have the option of coming in and saying let me develop that sloped area under the slope easement. There is a lot of reasons why we felt that was the better solution for the neighborhood; probably not the better one from the applicant's standpoint; they would probably prefer an east/west line, but I think in terms of ensuring the objectives that the north/south makes more sense. Com. Giefer: · Another question was regarding the Rl vs. RHS, because the average slope of the lot is greater than 15%, they would actually be governed by the RHS in any future development for this lot. Mr. Jung: · The Rl is written that if you have a slope of over 15% which is the case in this particular lot, it is either the RHS or RI regulations whichever is more restrictive. In this particular case as far as the FAR the more restrictive regulations, the RHS regulation which has aFAR percentage up to a 10,000 square foot lot, has a smaller increment for lots larger than 10,000 and there is a slope penalty that starts deducting the square footage as the slope gets steeper. · The calculation was already done under a normal RI relatively flat lot; for a 20,000 square foot lot you have a theoretical maximum that is close to a 10,000 square foot house, but with RHS regulations on it, you end up with about 3,720 maximum. Com. Giefer: · If this lot where the Knopp house currently sits, was redeveloped in the future, if the person who buys it, subdivides it and decides to build two homes and scrap the lot of the Knopp house and that is redeveloped, would that lot also have to adhere to the RHS as opposed to the Rl? ;)-/5 Cupertino Planning Commission 25 July 26, 2005 Mr. Jung: · It would still be subject to the same rules regarding the slope as 'well. Most likely if they were interested in expanding, they would be intruding on some of the steeper slope areas as the building pad itself is confined to just the flat portion of the lot. · If the house is larger than what the ordinance presently requires, it would be considered a legal non-conforming structure and they would have the right to rebuild that to the same square footage. It is a case that if it is a voluntary demolition, they would have to comply with the new rules. Vice Chair Miller: · Noted that were some other technologies besides removing the non-engineered fill and replacing it with engineered fill and other technologies to investigate as an alternative to saving the trees. John Knopp, property owner: · Said that his property is only one of four properties that the rezoning could subdivide. · There have been recommendations and suggestions about what would be built and how it would be built, but this is just the subdivision and I do not intend to actually build myself, those matters would have to be brought up with whoever buys the house and that would be the time to consider retaining walls, etc. · There never was a utility easement on that driveway and there doesn't need to be; the only utilities that are affected by the new lot is the sewer coming down from the existing house. I understand the recommendation is to move that over to the common line of the two lots. · The Schmidts sent a letter stating that their concern is they don't want the driveway dug up, don't want it altered in any way, and don't want any utility easements on the driveway; there never were any and they were not proposing that in any regard. · They said that the existing property would still have ingress and egress easement. They would prefer the new lot have its own access off of Lindy Lane. · I talked with them before the meeting and I think they would be willing to grant ingress and egress for the new lot also, especially since it is only on the lower part of the driveway. They would not want it tom up in any way and I agree with that. There is a possibility of putting a new driveway beside it; it would mean putting in a new culvert and putting pavement next to it so that could be done; again that has to do with the development of the property itself. · Thanked the Planning Commission for extending a second notice to neighbors affected; the notice was sent out to a broader area than the standard 500 feet. The neighbors encouraged him with the subdivision and they shared the same concerns about construction noise, etc. · My neighbors and I are concerned about traffic noise, construction noise, etc. Again, this is one of only four or five properties that could be subdivided; we are proposing one more and it will be another year of construction noise, etc. Code enforcement has encouraged us to call if there are any violations by construction crews. Recently there was a backhoe on one of the lots; a call was made and they were shut down immediately. · Briefly discussed the slides and movement in the 70s and a small slide in the 90s; there has since been no other earth movement. Brett Moxley: · I am sympathetic to the concerns about the impacts of construction, and I think it could effectively be addressed in the construction management program which can be attached to conditions; we don't object to that and recognize that it is really well addressed or should be well addressed in the exercise of the enforcement by the building department. d-Ib Cupertino Planning Commission 26 July 26, 2005 · He reiterated that they were not proposing a 10 foot retaining wall and it was not part of the proposal. They have not proposed any house footprint and feel that it is best left to careful deliberation on the part of those who are designing the house that would go there and the dialog that would go on either with staff or a Design Review Commission. · It is currently zoned RI and would be subject to design review. There is some concern that in the hillside ordinance currently if that was not redrafted, there isn't a provision for design review provided you are within the constraints of the RHS ordinance. · As opposed to the current relatively prescriptive comments in the staff report, I would like you to consider the alternative that design review does have a firm hold on what goes in there and it gives the opportunity or the DRC the opportunity to judiciously evaluate a more carefully considered proposal for the house. · I would like you to contemplate that that the Rl growth calls for design review; if it were to go to RHS it wouldn't, we would be happy to stipulate that any future work that happened at the house would be subject to design review, in exchange for a relaxation of the current relatively restrictive and I think early judgments on what could and should go there, subject to more careful review by a designer. . · Weare going to need to bring in utilities, and I think this may not have been the intent of the slope easement, but I bring it to your attention. · The sewer district does not like the current lay of the sewer pipe; the new house would go in on the newly created lot, and they would like to see a new sewer line put in across the slope. · I suspect the slope easement that staff is proposing addresses larger above surface improvements, and doesn't speak to underground utilities which would not have any impairment to the trees here. I want to ensure that we anticipate that if it were a slope easement and no underground utilities along there, we would be obliged to object. · Relative to the retaining walls and the mitigation of the unengineered fill there are three obvious solutions, and other solutions that haven't been discussed that could be evaluated. · If there is a concern about preserving these trees here and stabilizing unengineered fill, I feel pretty confident we can do that and not compromise those trees with a hybrid approach to some retaining wall, some unengineered fill removal, replacement, or retaining walls varying the footings so the retaining walls stand far enough out from the trees but are structurally sound and achieve their objective. · The retaining walls in some cases could be a part of the house foundation. I appreciate that those would not be technically retaining walls; as I understand from staff, a retaining wall is a structure separate and apart from the house envelope and the foundation. · The issue of the Sclunidt easement probably will be a moot point for several reasons. It is similar to ingress/egress easements that were present on my family's lots and in retrospect, they do not specifically and prescriptively restrict use to one house. If that was the case, the houses upslope of my family's lots would not be able to be subdivided and there hasn't been any discussion of restricting subdivision in that area because the ingress/egress easements don't specify the number of houses that they serve. They are generic and they are not that restrictive; on the legal merits, that argument might not stand up. I appreciate staff's comments that the city does not want to adjudicate matters like this and I don't think any of us would want the city engaging in that; I think we can work it out. It looks favorable that will be able to enjoy agreement with the Schmidts for access along that driveway. · I appreciate that we have a supportive staff report. I suggest that the site and community are better served by availing everyone to the design review process as it was intended and should appropriately apply here and give the person who would be coming in and doing a careful design, the opportunity to engage the design review committee or staff or the community in coming up with the most elegant, least disruptive design there; as opposed to prescriptively tying the hands of a future designer unnecessarily. d-(l Cupertino Planning Commission 27 July 26, 2005 In response to an earlier question ITom Com. Giefer about the existing house, staff said it was 2 I 00 square feet. The footprint is such that you would not want to expand beyond, but want to go up. Com. Giefer: · (To Mr. Moxley). Would you be trying to develop and build on these lots once they are divided and the Knopps decide they are leaving the area; would the lots be sold for future development? · Were you suggesting that the RHS house size calculation should not be used in favor of design review? Mr. Moxley: · Yes. · No, not at all; I would gladly recognize that the RHS fonnula is appropriate here and applies, and the location of the house is its relationship to trees, retaining walls, of whatever size, are appropriately addresses in a design review context. I did not mean to suggest that the RHS fonnulas apply in addition with the slope penalty, 28% slope, which calculates over a 3,700 square foot house. I think that is entirely sufficient and I don't believe we have ever had any objection to that, nor would be raise any. Chair Wong: · V s. north, south, east, west; what did you prefer; the current plan or the other one; it looks like there is an easement going over the new subdivision. Mr. Knopp: · As the owner, I want to get the value out of the land; so whatever is reasonable I will go either way. If I was to develop myself and years ago if I were to put up my own house, I would have done it east/west and then developed the lower lot; put the house down so it had a valley view; but then you have a long bowling alley type house, so that is purely aesthetics. Either one is fine. I think staff thoroughly investigated all the pros and cons and that is why they came up with that recommendation. Vice Chair Miller: · Part of the existing driveway is now going to become a part of the new lot, and the existing house will then have an easement through there. Mr. Moxley: · You are referring to the ingress/egress easement, which is correct. We had a number of conversations with staff about different permutations of using the site and one would be to push the driveway up slope which would require retaining walls and move a house up slope which in some regards captures more of a view. I think some of the intent was that it might provide more screening ITom the trees. · This is an ingress/egress easement for use of the house and part of the reason for that is that a driveway here doesn't benefit anybody. Vice Chair Miller: · The part of the driveway that the current house uses will now be on the adjacent property; who maintains the driveway? Mr. Moxley: · I would argue that the house that enjoys the benefit of use of that driveway. · It is my understanding that subject to the RHS aspects applicable here, that a driveway ;J-Ie Cupertino Planning Commission 28 July 26, 2005 maintenance agreement is a requirement. Vice Chair Miller: · That is fine; but the new parcel you are creating has no motivation or incentive to put any money into that driveway, because they are not going to use it. Mr. Moxley: · Unfortunately crafting a road or driveway maintenance agreement when the same owner owns both parcels, becomes an easy argument for that person to settle and record as part of a road maintenance agreement. Vice Chair Miller: · You Can do it any way you want but you would like to do it so that you have a goal of congruence; even though you are forcing someone to do something, there is some motivation for them to do it, otherwise it creates a conflict between the two neighbors over time. Mr. Moxley: · lllustrated that a 12 foot driveway would be required per the fire code to serve the house; and showed where access to the site would be feasible, transgressing across the slope easement for a few feet, not disturbing the trees. Vice Chair MiUer: · I have no objection to that as long as an engineer approves it and it doesn't generate retaining walls that don't fit in with the general guidelines that the city would like to see. Mr. Moxley: · I agree, I don't foresee any problem. Vice Chair Miller: · Also, relative to comments about other solutions to the non-engineered fill, it is ftom my viewpoint as long as an engineer approves the solution, you are ftee to pick the best solution for you. Chair Wong opened the public hearing. Bernard Tischee, Terra Linda Lane: · About 10 or 15 years ago the residents of the large lot requested to subdivide their properties and at that time the request was rejected because of the consideration of the high density and slides in those hills. · Unfortunately when they developed Lindy Lane I don't think it was done properly, the Lindy Lane road is like a valley; when it rains it becomes a river, and if you build more homes the overflow of the rain will make the road even worse during the rainy season. · I don't know the reason why this decision was changed that allowed that hill to be subdivided but there must be a reason. · I oppose this subdivision, not only this subdivision, but all the subdivisions because there is a lot of construction going on in the hillside now, and it has destroyed the hillside view. I think there are some potential hazards in the future such as landslides or overflow water, and we have been living with nuisance of construction noise the last 4 months; it negatively impacts the surroundings and residents' right to enjoy their homes and yards. J-/q Cupertino Planning Commission 29 July 26, 2005 · If the decision is made to subdivide the hillsides, at least make a decision and change the construction ordinance that construction takes place only between 8 and 5 p.m. during the weekend and no construction on the weekends. · The property owner has a right to develop his property; but when he purchased his property he knew that there was an ordinance prohibiting subdividing his property. When we purchased our home, we realized that the hills would not be subdivided, so we would be able to enjoy our home; everybody knew the rules in the beginning; somehow the rules have changed. Jennifer Griffin, Cupertino resident: · In this proposed lot split, there was a great deal of thought given to preserving the oak trees on the property. Everything needs to be done to preserve the oak trees, they are the legacy for Cupertino for generations to come. · Asked if it was the last subdividing of the lot; could the lots be split into quarter-acre lots; could the future purchaser of the lots come back in the future to split up the lots further? · You should publicly look at constraining the maximum size home; how large a home can be built on the lots; 10,000 square feet is a large house; do we want two stories on the property. · Please preserve the oak trees. . Chair Wong closed the public hearing. Mr. Piasecki: · Said under the current zoning, you could not subdivide further. · Relative to changing the construction ordinance, changes can be made but there are consequences of changes since it affects homeowners as much as contractors. It normally takes about a year to make changes, to gather input from the public, conduct public hearings and prepare reports. · He said under the construction ordinance, the hours of construction were 7 a.m. to 8 p.m. weekdays and 9 a.m. to 5 p.m. on weekends. Eileen Murray, Assistant City Attorney: · Said she was participating in meetings about the construction hour zones; and noted that code enforcement has been on Lindy Lane at least a dozen times in the last month regarding concerns about construction noise, radios, and grading on the weekends. They are attempting to enforce the law and changes in the ordinance are under discussion. Mr. Piasecki: · Clarified the definitions of daytime as 7 a.m. to 8 p.m. on weekdays, 9 a.m. to 6 p.m. on weekends. · Maximum house size is 3600 to 3700 +. Mr. Jung: · The square footage requirement applies to all building structures and would include any granny unit, any greenhouse, 3720 maximum. Pools are not included. Mr. Piasecki: · That was the purpose of the slope easement area, to make sure that is a non-buildable zone, no pools, no poolhouses. and you could use some undergrounding of utility that is not included. Com. Giefer: · If these lots had been rezoned to RHS vs. continuing to have the Rl designation, what would ,)-:20 Cupertino Planning Commission 30 July 26, 2005 be the minimal lot size. Mr. Piasecki: · We haven't done the slope density calculation and under the RHS I would expect that you would not be able to subdivide this property. · If it was changed to the hillside land use designations, it would be unlikely that you would be able to get another lot there. Mr. Jung: · Said the General Plan designation that controls the subdivision; it is not the zoning, the RHS zoning ordinance says specifically refer to the slope density formulas that are found in the General Plan designation. · It is not the RHS that controls the lot size in this particular instance; it would be the slope density formula if you had a slope density formula General Plan land use designation on the property. Com. Giefer: · Expressed concern with the condition of Lindy Lane. It is worn down as well as Regnart Road. The developer pays a street maintenance fee, but when will those issues be addressed by the city; how is it prioritized. Mr. Piasecki: · Said that Public Works would respond. · I don't think there is a requirement when you build you have to pay an extraordinary fee; if you damage something we know it holds. Com. Giefer: · I thought the developers paid a city maintenance fee that specifically addressed streets Mr. Piasecki: · I don't believe so; private streets you would have such a setup potentially where the maintenance would be controlled Com. Giefer: · One of the issues that several residents mentioned is they felt their street is getting chewed up by the construction vehicles. Mr. Piasecki: · We can ask Public Works how they can handle that. Vice Chair Miller: · If this project does proceed, I would propose that it include some kind of road maintenance agreement for the current driveway from the existing house out to the access road. · I don't feel we can rule on this tonight because there is contention over whether or not the shared access can be shared by the lot and if the applicant is proposing an alternate driveway, then we need to see that on the General Plan. · I propose we continue the application until that issue is resolved. Chair Wong: · (To staff) When the applicant came to us were you satisfied with their comment or do we need ;1-.;2\ Cupertino Planning Commission 31 July 26, 2005 to resolve that, regarding them talking to the applicant. Mr. Piasecki: · We received that letter today and we were not aware that it was an issue until we saw the letter; we could handle that either with a condition that said the example we cited the Wolfe Camera issue that had three options, and the applicant could demonstrate to us that he has satisfied those. If they are seriously looking at creating another driveway, I agree with Vice Chair Miller, that we would like to understand what it looks like, how it impacts trees, what do you need for retaining walls, etc. · We would continue it for that purpose; again I would ask if the applicant is willing to take a continuance and come back with a definitive answer. The driveway is usable, it would be our preference that they use the existing driveway. Chair Wong: · I agree. Com. Giefer: · I would agree with Vice Chair Miller; until we see that there is not an issue ITom the Schmidts, I would be more comfortable with that. · Another suggestion is to record the trees that are there; the reason I asked Mr. Moxley if he was actually going to be developing the property himself is that once Mr. Knopp and Mr. Moxley are out of the picture, the future owner may come in and clear cut the lot, thinking they can get away with that. As the property deed is changed, I would like to record the heritage trees to give them some protection, more for the future. · I suggest that we add conditions for construction stating that the neighbors feel antagonized by all the development going on. That has been the primary complaint I have heard. · There are concerns about landslides; we have the geologist report they retained; the city geologist is more negative about the soils there. I would like to require that there is no construction on weekends for this project; neighbors need some relief as part of this project. · I don't know if the street repair is a developer issue; we as a city need to understand that this is getting worn down and should be looked at as a higher priority. · I would support Vice Chair Miller, if we do act on this tonight, I would like to suggest we record the trees and add the condition of construction management that they do not work on weekends or have a very limited schedule. Com. Saadati: · Said he concurred with the statements made by fellow commissioners. · Relative to construction time, some of our neighboring cities have construction time limits 7 a.m. to 5 p.m. during the week, and no construction on weekends. Exceptions for working on the weekend can be granted, but not for noisy work that would impact the neighbors. · I concur with the recording ofthe trees. · The issue that they share access needs to be resolved; if it can be done at the staff level, I support that; if not, it be continued to come back. · Overall, this lot can be subdivided; regarding building of the house, slope stability; those will be added at the time the house is proposed and design is proposed and specific geotechnical report will be required for that site, prior to building permit action. Chair Wong: · I support the tentative mapping of the project with the condition about recording the trees; having limited construction hours on the weekend; and regarding the concerns of the residents J.-{¿3 Cupertino Planning Commission 32 July 26, 2005 on Lindy Lane. · I also agree with Com. Saadati that if the applicant Can satisfY staffs concern regarding the easement with the Schmidts, I feel comfortable leaving that decision to the competent staff. Motion: Motion by Vice Chair Miller, second by Com. Saadati, to approve Application TM-2005-03 with the modifications suggested by the Planning Commission. Com. Giefer: · The concerns of the neighbors include the heavy construction noise all of the time. I agree there may be interior construction that could be done that is less noisy; however, the heavy equipment, and backhoes are too much to have going 24/7 which is what the neighbors feel they are living through. · I would suggest that on Saturday, there not be any heavy equipment and dirt trucks. Ifwe limit heavy construction, cut and fill type of activities, that would reduce a lot of the noise immediately, where they didn't have trucks reducing access to their homes. · Limit construction on Saturday to no heavy equipment, perhaps from 9 a.m. to noon, and if there is only quieter construction, things not requiring heavy equipment during that timeframe. On Sunday, give the neighbors a break and not have any Sunday construction. Vice Chair Miller: · Added another condition that no grading be done during the rainy season. Mr. Piasecki reviewed the suggestions: · Said there was a desire to see a road maintenance agreement recorded prior to the recordation of the final map on the private drive over the westerly lot to the benefit of the eastern lot. · That there would be a construction management plan as required by the conditions and that there be no heavy equipment construction occurring on Saturdays; no construction on Sundays and work with the applicant to define the meaning; it can be written into the construction management plan. · That they would record the trees that are protected under the tree ordinance and they would record the fact that there would be no clear cutting; staff will define it. · That the applicant shall demonstrate that there is access as proposed over the private drive to the west of the site; and there would be a clearance from that property owner who owns the easement; there be no grading during the rainy season as defined by the ordinance. It would be recorded against both lots. · They would record the slope easements in which case there would be no above ground construction allowed. (Vote: 4-0-0; Com. Chen absent) Mr. Piasecki: · Noted it was a final decision of the Planning Commission unless appealed within 10 days. Chair Wong: · Said that relative to the General Plan for the neighborhood, they made a recommendation and ifthey are still interested, they should follow up with the City Council when they make their final recommendation. .;2 -~ L - E~ \ì-\ 151\: c 25 Jul 05 Planning Commission City of Cupertino 10350 Torre Ave Cupertino, CA 95014 RE: Subdivision of parcel - 21925 Lindy Lane Atten: Commissioner's Apparently the Planning Commission is taking up the application to subdivide the adjacent parcel located at 21925 Lindy Lane at Tuesday's (26 Jul 05) meeting. Your department should note that the "existing" ingress / egress to this parcel via T.E. & Marion Schmidt's driveway is limited to (I) parcel not (2) and more importantly it does not contain any right for a utility easement as shown on published proposal. The Schmidt's only concern to this proposed subdivision is that the use of their private driveway remain as it has for the last (50) years and without further burden. This infonnation is furnish on behalf of T.E. & Marion Schmidt, who's age & health prevent them from attending this scheduled meeting. )ok, re~ar~;, ./' , / '> , t>_;¡¡:;y· { { <) f ,,;--~_. '.¡,¡.-t........--.;..- (."'r....,.'~-_..___ __\ r . Bill Schmidt (on behalf' of)~~ T.E. & Marion Schmidt 21945 Lindy Lane Cupertino, CA 95014 Q~r· ~"" n::;"D l1.--f~~,~ ,~_....~ v·c." JUL 2 5 2.005 (. ,)-;)5 £.\(~\\\'¡t~ D January 31,2006 Mr. Colin Jung Planning Department City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3232 Subject: Application for Planning Commission Hearing to Modify the Approved Tentative Map Vehicular Access Requirement for 21925 Lindy Lane Dear Mr. Jung: The Knopps are requesting a Planning Commission Hearing to address modifying the approved tentative map vehicular access requirement for the 2 lot subdivision of 21925 Lindy Lane. The Planning Commission previously approved the 2 lot subdivision and required vehicular access be taken off of the private easement owned by the neighbors, the Schmidts. At the time of the Planning Commission approval of the subdivision, Mr. Knopp presumed that he would have no difficulty persuading the Schmidt's to rescind their position that an additional house would excessively overburden the easement. The Knopps were confident that they would easily achieve resolution with the Schmidt's because the Knopps had just recently granted the Schmidt's an access easement across the Knopp property (for free) to allow the Schmidt's to adjust the course of the Schmidt driveway. Quite naturally the Knopps were appalled when the Schmidt's the repeatedly refused to reciprocate in any way whatsoever. Both directly and through legal counsel, we have tried numerous times to persuade the Schmidt's to acknowledge our right to use the easement for the second lot. We have offered to accept all of the road maintenance obligations for the portion of the road which would serve both homes on the Knopp properties. We have tried every effort to reach an accord with the Schmidts with out success. We were then ready to proceed with recording the final map when the title company, First American Title Company, informed us that they would not undelWrite the title insurance due to the potential for an easement overburdening litigation. We subsequently requested a preliminary undelWriting evaluation from both Stewart Title and Chicago Title Company. They provided the same response as First American Title Company. ;¿~;)Io Without the Schmidt's friendly consent, the litigation alternative would require a quiet title action in Superior Court to establish the Knopps entitlement to use the easement. Unfortunately this will require up to one year (or more) and will no doubt require significant court costs. The Knopps have been in contract to sell their property for some time now (subject to the subdivision), after which they will retire. The terms of their contract and their personal plans have been stalled while we have tried to resolve this easement matter. Based on the foregoing, we are reluctantly forced to return to the Planning Commission to request approval to take vehicular access from Lindy Lane to serve Lot #2 in light of the fact that the Knopps property has approximately 250 feet of Lindy Lane road frontage and that Lot #2 itself will have approximately 125 feet of road frontage. The modified vehicular access for Lot #2 will require a 12' wide driveway from Lindy Lane. The driveway engineering feasibility has been demonstrated by Nelsen Engineering in the revised tentative map, and the City Arborist has reported that the driveway will not adversely impact the Oak Trees along Lindy Lane. The Knopps have made significant efforts to resolve this matter without using the Lindy Lane frontage, unfortunately due to the Schmidt's recalcitrant position we now are forced to pursue vehicular access with a 12 foot wide driveway from Lindy Lane. Please call me if you have any further questions or need any additional information, and thank you for your consideration of this matter. Sincerely, Bret Moxley J-;n Page I of2 EV\;bìt: E- Colin Jung From: jbmoxley@comcast.net Sent: Wednesday, February 01, 2006 3:37 PM To: Colin Jung Subject: First American Title Refusal to Provide Title Insurance Colin: Attached is the response from Tim Ward, Senior Regional Underwriter, to my request for an explanation of First American Title's refusal to provide title insurance for the Knopp subdivision due to the easement matter. Stewart Title and Chicago Title were not requested to render their positions in writing. Each declined with verbal responses to inquiries ITom John Dozier and John Knopp respectively. Bret -------------- Forwarded Message: -------------- From: "Ward, Tim" <Tward@firstam.com> To: jbmoxley@comcast.net Cc: "Rhoden, Jim" <jrhoden@frrstam.com>, dbyers@landuselaw.com Subject: RE: Case Law Relating to Easement Burden Increase Date: Thu, 12 Jan 2006 01:14:21 +0000 BreI: As I recall our discussion last Friday, Mr. Schmidt stated that the additional use of the easement would overburden it. As I mentioned on Friday, First American is not in the position to insure the ingress, egress easement, recorded in 1965, unless Schmidt records an amendment to it, which states that the easement is appurtenant to lots 1 and 2 of the subdivision. We agreed to review the cases below, and discuss this matter with our counsel in Santa Ana. Our position has not changed; we decline to insure the easement, and we view the cases below as a possible defense to a challenge made by Mr. Schmidt. It would be up to the court to decide whether your defense against Schmidt's claim that the easement is overburdened has any merit. You may provide copies of my email to the seller and/or the City. Please feel free to contact us. Tim Ward Senior Regional Underwriter First American Title Insurance Company 6665 Owens Drive, Pleasanton, CA 94588 (925) 201-6655(direct line) (925-463-9683(fax) From: jbmoxley@comcast.net [mailto:jbmoxley@comcast.net] Sent: Friday, January 06, 2006 4:22 PM To: Ward, Tim Cc: Rhoden, Jim; dbyers@landuselaw.com Subject: Case Law Relating to Easement Burden Increase Tim: 2/2/2006 J-:2.r¿, Page 2 of2 Thank you for arranging First American Title's swift elevated review of the merits of an overburdening argument by the easement grantor. It is my understanding that California case law is very clear that the natural and reasonable contemplated future needs of the dominant tenement resulting fiom the probable evolution of its future use do not increase the burden on an easement excessively. Camp Meeker Water System v. Public Utilities Commission. 51 Cal3rd 845866 (1990); Hill v. Allan (1968) 259 Cal App. 2nd 470 486. If you need any additional infonnation on this matter please feel fiee to call Mr. Dave Byers, Esq. at (650) 377-4894 xt 13, who represents me. Sincerely, Bret Moxley (415) 971-7720 2/2/2006 ;2<:21 B D COATE 408 3531Z38 OZ/OS/06 10:Z2am P. 003 RECOMMENDATIONS FOR TREE PRESERVATION AT 21925 LINDY LANE Assignment I was asked by Colin lung to review the proposed entry way drive location to 21925 Lindy Lane, Cupertino to detennine its effect on the existing trees. Summary Plans used as reference for this report are titled "Tentative Map, Lands of Knopp prepared by Nelsen Engineering Cupertino, dated August 2005. Summary If the angle of the proposed roadway is changed to confonn to the orange lines I have drawn on the soil and judicious tree pruning is done on trees #9,10 and 1 I, there is no reason this roadway cannot be constructed without causing unacceptable levels ofhann to the subject trees. Observations There are three trees that have the potential for being affected by the proposed driveway, identified as Trees #9, 10 and lIon the enclosed map section. The largest ofthese three trees is tree #10, which would require removal of three 6-8" diameter limbs to accommodate 14' tall trucks within the ]8' wide confines of the proposed entry drive. Tree # I I is a specimen with a strange structure. Approximately 30% of the tree's canopy is composed of one 8" diameter limb which points directly east, directly into the proposed driveway location. Removal of that limb back to the main trunk would not destroy the form of that tree, and would actually improve the fonn, and would remove conflict with 14' tall trucks on the west side of the driveway. The existing power pole would have to be removed. Recommendations I recommend that: 1. That the east facing 8" diameter limb which emerges at 5' above ground on the east side of tree #1 I be removed entirely back to the branch bark ridge. 2. I recommend that the three lowest 6-8" diameter limbs on tree #10 which point to the south and southwest be removed back to branch bark ridge tissue on the trunk. . PREPARED BY BARRIE D. COATE, CONSULTING ARBORlST OCTOBER 04, 2005 01-31 I::i LI LUAI~ '+\::)0 ;;:.:::>=>~.c...=>o "-'..::..r"-'or "'-"0 "'''-'0'::''''::'''''''''' ,. ",-""'-'""T RECOMMENDATIONS FOR TREE PRESERVATION AT 21925 LINDY LANE 2 3. I recommend that the lowest west facing limb on tree #9 be removed back to the branch bark ridge on the trunk, and that small branches from the limb directly above it be removed. 4. I recommend that the power pole be moved as necessary to move it out of the proposed driveway alignment. 5. I recommend that chain-link fences be installed 4' from tree #II and 14' from tree #10 to confonn to the fence location as shown on the enclosed plan. 6. I suggest that any soil cuts be made no closer than 6' from tree #11 or 16' from tree #10, or 16' from tree #9. If possible, these should be made in winter (December-January). 7. Any roots of 2" diameter or larger which are encountered during the soil excavation must be cut cleanly with a tree saw and covered immediately with a plastic bag tied on with rubber bands or coated with latex paint to prevent desiccation. 8. I suggest that either the walls be built within a week after the soil cuts are made or that used carpeting be draped in such a way that it covers the vertical walls and be wet down daily to prevent desiccation of the exposed root zone. Conclusion In my opinion, if all of these procedures are carefully followed, there should be no reason these trees will suffer from the proposed construction activity. Respectfully submitted Barrie D. Coate BDC/phlg Enclosures: Assumptions and Limiting Conditions Map Photographs PREPARED BYBARRJE D. COATE, CONSULTING ARBORIST OCTOBER 04, 2005 J.-3~ I ~@ - - - ." ~ 'I:! -'" !j!@ '"<1'"" @ 'ð n ~ ~$?. .... <: (> -" -" I '"rj~ g g (') <1> <1> <> - I E~ .... -< § (> .,.~,---- :J: -» IS 0 0'" OfTl o=' ZO - ~ I "'T ?< (f)C ~ f'T1 _- C!:j om ~ ~ ~ i\ 'c ìJ T ~~ ht;!~? Q, »0 >0 !!Ii i1i s= 8 < "'0 ~:!:¡ "'z ,'IF Den ~ ~ š:: \ "'c iñ~ fT1 ....> ./ enz z .... ~-I en \ Þ-4, 0. i Z 0 o " Q) (")~ æ 0 t::; rr1 ~ ~.:: 8Q i c':: ¡¡ g 0 0' 0,< ! a~ œ © ("') \ .. ~S:~2. ..... '0 ):- 0 0000° 6~ ¡¡ ~ '" in~ c :-t 00, ~ ::! <, ;:;>,.'i íl >~ < '{' ~~ ~. 0 Ii _,þ. ~ ë6 §: S' 0 \ z CD N ~ª 0 (.. gffi " :5.111 § ... '" '" ~~ søø 'd wezz:ø-r: 80/80/20 8821:898 80..,. 3.L\;;;;:IO:J a 8 0'2-33 ... .....5"""... '--'... oJ E'ütI8IT: ~ Colin Jung From: Ciddy Wordell Sent: Wednesday, September 21, 20054:49 PM To: 'tahoejej@comcast.net' Cc: Colin Jung Subject: RE: No Notification re plans to subdivide Lindy ~ane Hillside Lots - NO RES~~NSE FROM CITY - SECOND REQUEST \( APf'\' Sv\:,d.IVISIW'o, Mo,JI.,fi CC'~ The radius for mailing the Knopp notice was 500 feet, and you are on the mailing list we received from our mailing service. Sun mailing will be a 1000 feet radius, and the notice hasn't gone out yet. Your opposition to the driveway is noted; perhaps you will want to attend the October 11 hearing. Thanks for your comments. Ciddy Wordell -----Original Message----- From: tahoejej@comcast.net [mailto:tahoejej@comcastnet] Sent: Wednesday, September 21, 2005 4:21 PM To: Ciddy Wordell; Arzeno, Sara; Patrick Kwok2; Steve Piasecki; Charles Kilian; Igiefer Cc: Bob Rodert; Mohammed Hossain; TAYSI3@aol.com; Andrew Teng; LACORRE@COMCAST.NET Subject: RE: No Notification re plans to subdivide Lindy Lane Hillside Lots - NO RESPONSE FROM CITY - SECOND REQUEST Is across the street more then 300 feet? I never got notified and don't like where I H.EARI) his " driveway is going. . . , From Chicagõ, . . John Jame~t ___________m Original message ______m_____ Hello Sara: Mr. James writes about noticing for the R1 hillside ordinance. The R1 ordinance was noticed to all Cupertino residents. It contains a provision that property owners in the R1 zoning district with average slopes greater than 15% must develop according to the hillside ordinance, or R1, whichever is more restrictive. It was not possible, nor was it necessary, to determine exactly which properties those were so that they could be notified individually. Your concern about notification of subdivision activity is a separate issue. The subdivision applications are mailed to nearby property owners. In the case of the Knopp subdivision approved by the Planning Comm. on July 26, notices were mailed to properties within 500 feet of the Knopp property, as was Knopp's request for a modification for access scheduled for the September 27 Planning Commission. The Sun subdivision is scheduled for October 11, and a 1000 foot notice will be sent. All of these notices exceed the distance required in the municipal code, which is 300 feet. Please let me know if you have further questions. Ciddy Wordell -----Original Message----- From: Arzeno, Sara [mailto:Sara.Arzeno@cvt.com] Sent: Friday, September 16, 2005 9:01 AM To: Ciddy Wordell; Patrick Kwok2; Steve Piasecki; Charles Kilian; Igiefer Cc: Bob Rodert; Mohammed Hossain; TAYSI3@aol.com; Andrew Teng; LACORRE@COMCAST.NET; tahoejej@comcast.net Subject: FW: No Notification re plans to subdivide Lindy Lane Hillside Lots - NO RESPONSE FROM CITY - SECOND REQUEST 9/28/2005 d-3~ 1.JlOpp t'ïanS lur ~UDUlVlSlUIl U1 LUIUY LillIe:: nll1~lue:: - ll1lCe VVll...-l':' eu ':"1 JV':" .11...-1 v......l.ltlJ ......,}'... ! u.c..... ! V..l ! Colin Jung From: Arzeno, Sara [Sara.Arzeno@cvt.coml Sent: Friday, September 23,20058:27 AM To: Ciddy Wordell; Steve Piasecki Cc: Colin Jung Subject: RE: Knopp Plans for Subdivision of Lindy Lane Hillside - Three voters at 21902 Fervently Oppose Knopp Subdivision Thank you Ciddy. From: Ciddy Wordell [mailto:CynthiaW@cupertino.org] Sent: Friday, September 23,20058:25 AM . To: Arzeno, Sara Cc: Colin Jung Subject: RE~Knopp Plans for Subdivision of Lindy Lane Hillside - Three voters at 21902 Fervently Oppose Knopp Subdivision confirmed -----Original Message----- From: Arzeno, Sara [mailto:Sara.Arzeno@cvt.com] Sent: Thursday, September 22,200510:14 PM To: Ciddy Wordell; Igiefer; Steve Piasecki; Patrick Kwok2 Cc: tahoejej@comcast.net; Uner & Canden Taysl; Mohammed Hossain; Andrew Teng; LACORRE@COMCAST.NET; Bob Rodert; ronberti@comcast.net Subject: Knopp Plans for Subdivision of Lindy Lane Hillside - Three voters at 21902 Fervently Oppose Knopp Subdivision Importance: High Message number two from the three voters at 21902 Lindy Lane We FERVENTL TY OPPOSE the Knopp Plans for subdivision of the Lindy Lane Hillside. The Arzeno Family PS - Ciddy et al - pis confirm receipt of this message. Sara Arzena Manager, Medical Writing CV Therapeutics, Inc. (650) 384-8816 9/26/2005 ,)-35 ....--- _..._--_._------._,------_._--_..~- -~.~--- .J:GEND :OJECT INFORMATION ·.,C._.:.-_, , ,~a~;":t 35x45 _~;"" -.'.'". ,-: I ~30~ r ~:=:; '1!tc2O ÇairlGood 30<40 çO/r 3 10 ;!~~f~~~~~:< '. - !~Ôj[t.;. OJrNER AND APPLICANT: JOHN AND KAREN KNOPP 21925 UNDY lANE CUPERllNO, CALIFORNIA 95014 8 IJ 23 5 , 5 '. I '. . IJ 23 3 ( 5 .. . 3 . 1$ 27 7 12 ( 5 . " 4 5 17 3D ENGINEER: MARIUS E. NELSEN, R.C.E. 20597, EXP. 9/05 NELSEN ENGINEERING 21801 STEVENS CREEK BOULEVARD CUPERllNO, CAUFORNIA, 95014 TEL (408) 257-S452 FAX: (408) 257-6821 PROPERTY AlJDRBSS AND APN: 21925 UNDY LANE CUPERllNO. CALIFORNIA APN 356- 25-014 PROPOSED NUMBER OF LOTS: Z PROJECT AREA: 43.583 SO. FT. 1.0 AC) UTILITIES: ELECIRIC AND GAS. P.G. '" E. WATER. SAN JOSE WATER COMPANY TELEPHONE, sec SEv.£R, ClJPERllNO SANITARY DISIRICT ZONING: RI- 20 SCALE: 1 ø II, 30<40 FSir 3Ox40 Fair ~ 30<40 çaòt1Gooo !J.3CItt4o FO/r ...... - 25x18 Fair / ~red at 4.5 teet Q mmanylr~~¡;FbUl)cfJe.vel. This'.,_. -.. 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