PC Summary 02-14-06
To:
From:
Date:
Subj:
City of Cupertino
10300 Torre Avenue, Cupertino, California 95014 (408) 777-3308
Mayor and City Council Members
Steve Piasecki, Director of Community Development
February 15, 2006
REPORT OF PLANNING COMMISSION DECISIONS MADE
February 14, 2006
Chapter 19.32 of the Cupertino Municipal code provides for
a eal of decisions made b the Plannin Commission
1. Application
M-2005-04; Bret Moxley (Knopp residence), 21925 Lindy Lane
Description
Modification to a Tentative Map (TM-2005-03) to provide access for Lot 2 from
Lindy Lane
Action
The Planning Commission denied the application on a 4 - 0 vote.
The ten-calendar day appeal will expire on February 25, 2006.
Enclosures:
Planning Commission Report of February 14, 2006
Planning Commission Resolution No. 6373
Approved Plan Set
g:planning/Post Hearing/summary to cc021406
CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 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 ~ 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).
;2-/
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 naturallandforffiS
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.
,).-3
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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
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:2-4
M-2005-04
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
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 subconclusions upon which the findings and conditions specified in this
Resolution are based and contained in the Public Hearing record concerning
d.. -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/pdrep(J/'tjres/M-2005-04 res.doc
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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 TENTATIVE 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.
J-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 not 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.
J-f>
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 R1
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
J-q
Resolution No. 6313
Page 4
TM-2005-03
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 trees 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.
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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-1, 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:
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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
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Cupertino Planning Commission
22
EX\<bi+: {~
July 26, 2005
Applicant:
. Agreed to the continuance, to return on September 13th to respond to the outstanding issues.
D1dtP\
Motion:
Motion by Vice Chair Miller, second hy 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
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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 information regarding access on the shared driveway, if it was necessary allow
vehicular access from 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 frontage 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 from 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 information, 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.
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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. nortb/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
frontage 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 from
the site anyway, so we feel that the nortb/south division sets up an even more constrained new
lot with a limited building area with an easement that is going to prevent them from 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 RI 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 Rl 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 Rl 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 RI?
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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.
C1 -lie
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 Schmidt 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.
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Cupertino Planning Commission
27
July 26, 2005
In response to an earlier question from Com. Giefer about the existing house, staff said it was 2100
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 formula 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 revi,ew context. I did not mean to suggest that the RHS
formulas 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! was to develop myself and years ago if! 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 Miner:
. 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 from 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 Miner:
. 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
;I-Il()
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 Miller:
. 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 from my
viewpoint as long as an engineer approves the solution, you are free 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.
cl-fCJ
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 defmitions 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 R I designation, what would
J ~ :Jr>
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 Miner:
. 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 altemate driveway,
then we need to see that on ihe 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
,;/-21
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 from 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 cons1ruction 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
cons1ruction 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 liS 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 cons1ruction 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 cons1ruction time, some of our neighboring cities have cons1ruction time limits 7
a.m. to 5 p.m. during the week, and no cons1ruction 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 of the 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 cons1ruction hours on the weekend; and regarding the concerns of the residents
J~.1~
Cupertino Planning Commission
32
July 26, 2005
on Lindy Lane.
. I also agree with Com. Saadati that if the applicant can satisfY staff's 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-200S-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. If we
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
if they are still interested, they should follow up with the City Council when they make their
final recommendation.
d. -:;2."3
E~ T\I{SI\: 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 (1) 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 information is furnish on behalf of T.E. & Marion Schmidt, who's age & health prevent
them from attending this scheduled meeting.
<Best regards, ,_? _', .
...t(x;l.'jr~(:"" (' ..,..~7,"'{ /~~,
Bill s~n~idt'(~nb~;;}f ~{_ ./
T.E. & Marion Schmidt
21945 Lindy Lane
Cupertino, CA 95014
R~r--"G'llVED
J,l""'''--~~~_J t. ',JIt -
JUL 2 5 2.005
:J -:2+
E'L\-,\\;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
underwrite the title insurance due to the potential for an easement overburdening
litigation. We subsequently requested a preliminary underwriting evaluation from
both Stewart Title and Chicago Title Company. They provided the same
response as First American Title Company.
;)-:25
Without the Schmidt's friendly consent, the litigation altemative 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-;H,.
Page I of2
Ex~\bit: 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 from John Dozier and John Knopp respectively.
Bret
___m__m___ Forwarded Message: _________m__
From: "Ward, Tim" <fward@firstarn.com>
To: jbmoxley@comcast.net
Cc: "Rhoden, Jim" <jrhoden@firstarn.com>, dbyers@landuselaw.com
Subject: RE: Case Law Relating to Easement Burden Increase
Date: Thu, 12 Jan 2006 01:14:21 +0000
Bret:
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 10 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.-:1.7
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 from 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
845 866 (1990); Hill v. Allan (1968) 259 Cal App. 2nd 470 486.
If you need any additional information on this matter please feel free to call Mr. Dave Byers,
Esq. at (650) 377-4894 xt 13, who represents me.
Sincerely,
Bret Moxley
(415) 971-7720
2/2/2006
;l-~6
B D COATE
408 3531238
02/08/06 10:22am 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 determine 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 conform to the orange lines I have
drawn on the soil and judicious tree pruning is done on trees #9, 10 and 11, 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 of these three trees is tree # I 0, which would require removal of three 6-8"
diameter limbs to accommodate 14' tall trucks within the 18' wide confines of the
proposed entry drive.
Tree # 1 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 form, 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
I. That the east facing 8" diameter limb which emerges at 5' above ground on
the east side of tree # II be removed entirely back to the branch bark ridge.
2. I recommend that the three lowest 6-8" diameter limbs on tree # 1 0 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
J-3D
t::I U LUAIl;:.
<'HoD:;;; -:=;~-:=;.1"::::-:=;1::i
~"::::,~d,Ub .1~:..::::..::::am ~. ~U~
RECOMMENDA nONS FOR TREE PRESERV AnON 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 #11 and 14' from
tree # 10 to conform 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 l6'
from tree #10, or 16' from tree #9. Ifpossible, 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 BYBARRlE D. COATE, CONSULTING ARBORlST
OCTOBER 04, 2005
~~31
M-2005-04
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION No. 6373
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 subconclusions upon which the findings and conditions specified in this
Resolution are based and contained in the Public Hearing record concerning
Resolution No. 6373
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: Chairperson Miller, Vice-Chair Giefer, Saadati, Wong
COMMISSIONERS: none
COMMISSIONERS: none
COMMISSIONERS: none
ATTEST:
APPROVED:
/ s/Steve Piasecki
Steve Piasecki
Director of Community Development
Is/Marty Miller
Marty Miller, Chairperson
Cupertino Planning Commission
g:jplanning/pdrepart/resjM-2005-04 res.doc
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ti't.l1-1 BIT: 9
Colin Jung
From: Ciddy Wordell
Sent: Wednesday, September 21,20054:49 PM
To: 'tahoejej@comcast.nef
Cc: Colin Jung
Subject: RE: No Notification re plans to subdivide Lindy ~ane Hills!de Lots - NO RES~~NSE FROM CITY -
SECOND REQUEST k: 1\Pfr S'-'bd-hl,sI'H"\ Modl-h 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@comcast.net]
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 HEARD his
, driveway is going. .
. From Chicago,
John Jamesj
___________m Original message __m_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 R 1 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 fool 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
01--3:'
hIlOpprJans lur .:)UUUIVI;:jJUIl III LlllUY Li:UICnUl~lUC - 1111C;C; VUlC;i~ a.l':::"l.7U';:' i'C.lVC;UUY '---'p... i a.6v.1 V.l.1
Colin Jung
From: Arzeno, Sara [Sara.Arzeno@cvt.com]
Sent: Friday. September 23, 2005 8:27 AM
To: Giddy Wordell; Steve Piasecki
Cc: Golin Jung
Subject: RE: Knopp Plans for Subdivision of Lindy Lane Hillside - Three voters at 21902 Fervently Oppose
Knopp Subdivision
Thank you Giddy.
From: Ciddy Wordell [mailto:CynthiaW@cupertino.org]
Sent: Friday, September 23, 2005 8:25 AM
. To: Arzeno, Sara
Cc: Colin Jung
SUbject: RE~Knopp Plans for SubdMsion 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 Taysi; 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 - Giddy et al - pis confirm receipt of this message.
Sara Arzena
Manager, Medical Writing
CV Therapeutics, Inc.
(650) 384-8816
9/26/2005
C)- 34
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LEGEND
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goond. 3..5 {l3D;. 2 /17.4l, means tho1 tua mUltiple lrunl::1ree. the i31nch trunl::was meosured01 3.5leet
aboVe the ground, and the 17.4 irlch dIame~r InJI'Ik \olIOS: measlll'ed at 2 feet above the ground.
. i!l!i! '" Heigl'll x cenopy width if} fw1 festimoted}.
s ~a1inn Sultnbllitv means. Is 1hls tree \NOrth keeping?
additional information, Wte the box on page 8.
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t
SCALE: , ~
ROJECT INFORMATION
OWNER AND APPUCANT:
JOHN AND KAREN KNOPP
21925 UNDY LANE
CUPERl1NO, CALIFORNIA 95014
9/05
257-6821
DClSllflCINGRE5S.EGRESS
.llI.(Il!IIIJTI(SE~IolE~T
.D AC)
ZONING: R'-20
SOURCE OF CONTOUR:
TOPOGRAPHIC FIELD SURVEY BY NELSEN ENGlNEERING
.d Vli'RAGE SLOPE: 2Bl';
ENGINEER:
MARIUS E. NELSEN. R.C.E. 20597. EXP.
NELSEN ENGINEERING
21 BOl STEVENS CREEK BOULEVARD
CUPERTINO. CAUFORNIA. 95014
TEL (408) 257-6452 FAX: (408)
PROPERTY ADDRESS AND APN:
21925 UNDY LANE
CUPERTINO. CAUFORN(A
APN 356-25-014
PROPOSED NUMBER OF LOTS: 2
PROJECT AREA: 43.583 SQ. FT.
UTIUTIES:
ELECTRIC AND GAS. P.G. &< E.
WATER. SAN JOSE WATER COMPANY
TELEPHONE, sac
SEWER. CUPERTINO SANITARY DISTRICT
""
1Ft this case. on 0 suburban reRdentiol slfel
. r~ Pmt~iOn lonp. (In teet]. Distances of 3 x D8H. $); DBH and Cpt. {Opftmum Tree Pro1ecfion Zone) aA!
I!sted h"l the thre<e !tJb-coltJmns. The 5 J. D~ c.:1lumn ids the prefetted minimum di&tance fi'lOl Cll!1Ul'Donce
shot.old be- kepllrom t"'.e ftuot.:. f>teose alSd see 1he addtIoool ex;:lanation on the next page.
----,~-----
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LEGEND
PROPERTY LINE
CENTERLINE OF RIGHT OF" WAY
AREA SUMMARY
LOT AREA
LOT 2 20,000 SQ. FT. (0.46 AC.) NET
-
LOT 20.931 sa. FT. (0.48 AC.) NET