TR-2022-025 Approval Action Letter Comm . F lopme t De+2U,161 jeLG4ITY DEVELOPMENT DEPARTMENT
PIE M�2-02
sion — upe?FANNING DIVISION
�CUPERTIN4 ROVECITY HALL
Case # 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
in"=661 Numbers TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333
CUPERTINO CUPERTINO.ORG
Approval Body: Director/Staff
Approval Date 08/17/22
Signature &WFAe1Ta
Case Manager
Robert Apolinar
San Jose Tree Service Inc.
84 Automall Drive
Gilroy, CA 95020
SUBJECT: TREE REMOVAL PERMIT ACTION LETTER—Application TR-2022-025
This letter confirms the decision of the Director of Community Development, given on
August 17,2022,approving a Tree Removal Permit to allow the removal of three protected
mature specimen trees(trees 1,2, &3 on the Removal Plan)consisting of one existing(26"
DBH) Coast Live Oak, one existing (24" DBH) Coast Live Oak, and one (26" DBH) Coast
Live Oak which had previously fallen at a residence located at 10280 Phar Lap Drive.
Staff has made the necessary findings that the trees are irreversibly diseased,are in danger
of falling, can cause potential damage to existing or proposed essential structures, and
cannot be controlled or remedied through reasonable relocation or modification of the
structure or utility services. The finding is necessary to grant the Tree Removal Permit in
accordance with Cupertino Municipal Code (CMC) Section 14.18.180(A)(1).
The application is approved with the following conditions:
1. APPROVED PROJECT
This approval for tree removal is based on the arborist report prepared by Robert
Apolinar (Certified Arborist #WE-8846A) consisting of twenty (20) pages, including
the report, photographs of all three trees proposed for removal, a site plan depicting
the location of the trees to be removed and a site plan depicting the proposed locations
for the five replacement trees.
2. ACCURACY OF THE PROJECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations,building setbacks,property
size, building square footage, any relevant easements and/or construction records.
Any misrepresentation of any property data may invalidate this approval and may
require additional review.
10280 Phar Lap Drive Page 2 of 4
TR.- 0 025
Comm�rnt�y 6-025b� ment Department
Planning Division—Cupertino
cuPERTINo 3. TRE4F fR&V4nMENT
Case # 'TR42QLW2eO26placement tree is one 24"box cherry tree, one 24"box fig tree, one 24"
kWWOWO make,rppe 24"box avocado tree and one 36" box fig tree to be planted on the
subject pro erty in the area as specified on the replacement plan within 30 days of this
Approval Body: DirectorfF
a,Vprov 1. e applicant shall provide the Department of Community Development
Approval Date 1T2+2 , ,,i„ding but not limited to photographs, receipts, or
Signature Cat*rinA(TewpMverify that the replacement trees have been planted.
Case Manager
4. PROTECTED TREES
The applicant understands that replacement trees may not be removed without a Tree
Removal Permit and that they shall be responsible for ensuring the proper
maintenance and care of the trees. The applicant shall also disclose the location and
species of all replacement trees on site upon sale of the property.
5. NESTING BIRDS
Nests of raptors and other birds shall be protected when in active use, as required by
the federal Migratory Bird Treaty Act and the California Department of Fish and
Game Code.
a. Construction and tree removal/pruning activities shall be scheduled to
avoid the nesting season to the extent feasible. If feasible, tree removal
and/or pruning shall be completed before the start of the nesting season to
help preclude nesting.The nesting season for most birds and raptors in the
San Francisco Bay area extends from February 1 through August 31.
Preconstruction surveys (described below) are not required for tree
removal or construction activities outside the nesting period.
b. If construction activities and any required tree removal occur during the
nesting season (February 1 and August 31), a qualified ornithologist shall
be required to conduct surveys prior to tree removal or construction
activities. Preconstruction surveys shall be conducted no more than 14
days prior to the start of tree removal, pruning or construction.
Preconstruction surveys shall be repeated at 14-day intervals until
construction has been initiated in the area after which surveys can be
stopped. During this survey, the ornithologist shall inspect all trees and
other possible nesting habitats in and immediately adjacent to the
construction areas for nests.
c. If the survey does not identify any nesting birds that would be affected by
construction activities, no further mitigation is required. If an active nest
containing viable eggs or young birds is found sufficiently close to work
areas to be disturbed by these activities, their locations shall be
documented,and protective measures implemented under the direction of
the qualified ornithologist until the nests no longer contain eggs or young
birds.
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TR.- 0 025
Comm�rnt�y 6-025b� ment Department
Planning Division—Cupertino
CUPERTIn0 APRRCNBDctive measures shall include establishment of clearly delineated
Case # TR-2022j025ision zones (i.e. demarcated by identifiable fencing, such as orange
Application Nunfaft§tructlori fencing or equivalent) around each nest location as
determined by the qualified ornithologist, taking into account the species
Approval Body: Director/ Stirds nesting, their tolerance for disturbance and proximity to existing
Approval Date 08/17/22 development. In general, exclusion zones shall be a minimum of 300 feet
Signature Catherine Taron#or raptors and 75 feet for passerines and other birds.The active nest within
Case Manor exclusion zone shall be monitored on a weekly basis throughout the
nesting season to identify signs of disturbance and confirm nesting status.
The radius of an exclusion zone may be increased by the qualified biologist,
if project activities are determined to be adversely affecting the nesting
birds. Exclusion zones may be reduced by the qualified biologist only in
consultation with California Department of Fish and Wildlife. The
protection measures and buffers shall remain in effect until the young have
left the nest and are foraging independently or the nest is no longer active.
e. A final report on nesting birds and raptors,including survey methodology,
survey date(s), map of identified active nests (if any), and protection
measures (if required), shall be submitted to the Planning Manager,
through the building permit review process, and be completed to the
satisfaction of the Community Development Director prior to the start of
grading.
6. INDEMNIFICATION AND LIMITATION OF LIABILITY
As part of the application, to the fullest extent permitted by law, the applicant shall
agree to indemnify, defend with the attorneys of the City's choice, and hold harmless
the City, its City Council, and its officers, employees, and agents (collectively, the
"indemnified parties") from and against any liability, claim, action, cause of action,
suit, damages, judgment, lien, levy, or proceeding (collectively referred to as
"proceeding")brought by a third party against one or more of the indemnified parties
or one or more of the indemnified parties and the applicant related to any Ordinance,
Resolution, or action approving the project, the related entitlements, environmental
review documents, finding or determinations, or any other permit or approval
authorized for the project. The indemnification shall include but not be limited to
damages, fees, and costs awarded against the City, if any, and cost of suit, attorneys'
fees, and other costs, liabilities, and expenses incurred in connection with such
proceeding whether incurred by the Applicant, the City, or the parties initiating or
bringing such proceeding.
The applicant shall agree to (without limitation) reimburse the City its actual
attorneys' fees and costs incurred in defense of the litigation. Such attorneys' fees and
costs shall include amounts paid to the City's outside counsel and shall include City
Attorney time and overhead costs and other City staff overhead costs and any costs
directly related to the litigation reasonably incurred by City. The applicant shall
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TR.- 0 025
Comm�rnt�y 6-025b� ment Department
Planning Division—Cupertino
c u PE RTC n o like aA RPR@ME Ilb indemnify, defend, and hold harmless the indemnified parties from
Case # aTR-i22tOQ75r damages, attorneys' fees, or costs awards, including attorneys' fees
Code of Civil Procedure section 1021.5, assessed or awarded against
the indemnified parties. The Applicant shall cooperate with the City to enter a
Approval Body: D eim�ursement Agreement to govern any such reimbursement.
Approval Date 08/17/22
Signature CathbeA@ant shall agree to (without limitation) reimburse the City for all costs
incur &aingadditional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment) if made necessary by
proceedings challenging the project approvals and related environmental review, if
the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
7. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
The conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions.
You have now completed the (14) calendar day public posting and appeal period which
ran from Tuesday,August 2,2022 to Tuesday,August 16,2022 at 5:00 PM).No appeals of
this decision were received by staff during the appeal period. Please take down the
noticing board that you posted on site, and you may now proceed with removing and
replacing the trees.
Sincerely,
Catherine Tarone
Permit Technician
Planning Division
(408) 777-3297
catherinet@cupertino.org
Enclosure: Removal and replacement plan