DIR-2022-023 Action Letter CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014 (408) 777-3308
To: Mayor and City Council Members
Chairperson and Planning Commissioners
From: Luke Connolly, Acting Director of Community Development
Prepared by: Gian Paolo Martire, Senior Planner
Date: January 6, 2023
Subject: Director's Minor Modification, DIR-2022-023, to allow for the removal of
existing landscaping and replacement with new planting material to
existing landscaped areas at an Apple Campus located at 10460 Bubb Rd.,
APN 357-20-037.
Chapter 19.164 of the Cupertino Municipal Code allows for administrative
approval of minor changes in a project. The Director reports his decision to the
City Council and Planning Commission in time to allow an appeal of the decision
within 14-calendar days.
BACKGROUND
The Apple Campus located at 10460 Bubb Road is an approximately 3.59-acre office
property comprised of an office buildin k
(see Figure 1). The property is bordered
.gd�neo
by McClellan Road to the south, Bubb
Road to the north, an office buildings to Al
the east, and a railroad right-of-way to the
west.
The applicant has submitted a Director's d
pp ; . �
Minor Modification (DIR-2022-023) to P;.
modify planting material in existing
landscape area along the Bubb Road
frontage, upgrading to more waterOr
efficient and native plantings. y
DISCUSSION AN
The applicant,Tyson Carroll representing Figure 1:aerial view
Wood Architecture, is now requesting for approval
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for modifications to existing landscape areas adjacent to Bubb Road, totaling
approximately 8,697 square feet. The current landscaping is a combination of high-water
use turf area, and with numerous trees of various species.
The landscape modifications include:
■ Removing existing turf area;
■ Planting very low and low water using evergreen (mostly California native)
species shrubs. These include,but not limited to:
o Sanddune Sedge
o Butterfly Blue Pinchushion Flower
o Luminous Pineleaf Beardtongue
■ New irrigation system with drip irrigation at all newly planted areas, replacing
the sprinkler system.
No tree removals are associated with the proposed modifications. The applicant is
conditioned to protect the trees onsite as outlined in condition 4. There is no proposal to
modify the existing buildings. There are no additional modifications proposed to the site
or landscaping approved beyond the scope of work discussed above. In accordance with
General Plan Policy ES-5.1.2 and Chapter 14.15: Landscape Ordinance of the Cupertino
Municipal Code, the project is replacing high water use, non-native plantings with
planting of native, drought tolerant landscaping that is beneficial to the environment,
while ensuring the protection of existing mature trees.
ACTION
The Director of Community Development deems the project categorically exempt from
environmental review under CEQA Guidelines, Article 19, Section 15301: Existing
Facilities. Therefore, the proposed modification has been deemed minor and approved
with the following conditions of approval:
1. APPROVED EXHIBITS
Approval is based on exhibits titled 'Bubb 12: 10460 Bubb Rd. Cupertino, CA 95014"
prepared by Wood Architecture, consisting of six sheets labeled T-1, L-1 to L-5 dated
November 7, 2022, except as may be amended by the conditions contained in this
resolution.
2. ACCURACY OF THE PROTECT 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.
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3. PREVIOUS CONDITIONS OF APPROVAL
All prior conditions of approval through past approvals shall remain in effect unless
superseded by or in conflict with subsequent conditions of approval and as
specifically amended by this Director's Minor Modification approval.
4. TREE MAINTENANCE AND PROTECTION
The property owner shall be responsible for ensuring that the existing trees are
properly maintained including but not limited to ensuring that there is adequate soil
drainage, that the soil is well-aerated, and irrigation systems are thoroughly tested to
provide sufficient water to landscaped areas while reducing water waste.
In addition, the following measures shall be in place:
• For trees to be retained, chain link fencing and other root protection shall be
installed around the dripline of the tree prior to any project site work.
• No trenching within the critical root zone area is allowed. If trenching is
needed in the vicinity of trees to be retained,the City's consulting arborist shall
be consulted before any trenching or root cutting beneath the dripline of the
tree.
• Wood chip mulch shall be evenly spread inside the tree projection fence to a
four-inch depth.
• Tree protection conditions shall be posted on the tree protection barriers.
• Retained trees shall be watered to maintain them in good health.
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
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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.
d) Protective measures shall include establishment of clearly delineated exclusion
zones(i.e. demarcated by identifiable fencing, such as orange construction fencing
or equivalent) around each nest location as determined by the qualified
ornithologist, taking into account the species of birds nesting, their tolerance for
disturbance and proximity to existing development. In general, exclusion zones
shall be a minimum of 300 feet for raptors and 75 feet for passerines and other
birds. The active nest within an 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. DUST CONTROL
The following construction practices shall be implemented during all phases of
construction for the proposed project to prevent visible dust emissions from leaving
the site:
a) Water all exposed surfaces areas (e.g., parking areas, staging areas, soil piles,
graded areas, and unpaved access roads) at least twice daily and more often
during windy periods to prevent visible dust from leaving the site; active areas
adjacent to windy periods; active areas adjacent to existing land uses shall be kept
damp at all times, or shall be treated with non-toxic stabilizers or dust palliatives.
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b) All haul trucks transporting soil, sand, or other loose material off-site shall be
covered.
c) All visible mud or dirt track-out onto adjacent public roads shall be removed using
wet power vacuum street sweepers at least once per day. The use of dry power
sweeping is prohibited.
d) All vehicle speeds on unpaved roads shall be limited to 15 mph.
e) All roadways, driveways, and sidewalks to be paved shall be completed as soon
as possible. Building pads shall be laid as soon as possible after grading unless
seeding or soil binders are used.
f) Idling times shall be minimized either by shutting equipment off when not in use
or reducing the maximum idling time to 5 minutes (as required by the California
airborne toxics control measure Title 13, Section 2485 of California Code of
Regulations [CCR]). Clear signage shall be provided for construction workers at
all access points.
g) All construction equipment shall be maintained and properly tuned in accordance
with manufacturer's specifications. All equipment shall be checked by a certified
mechanic and determined to be running in proper condition prior to operation.
h) Post a publicly visible sign with the telephone number and person to contact at the
Lead Agency regarding dust complaints. This person shall respond and take
corrective action within 48 hours. The Air District's phone number shall also be
visible to ensure compliance with applicable regulations.
i) The applicant shall incorporate the City's construction best management practices
into the building permit plan set.
7. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS
a. All grading activities shall be limited to the dry season (April 15 to October 1),
unless permitted otherwise by the Director of Public works.
b. Construction hours and noise limits shall be compliant with all requirements of
Chapter 10.48 of the Cupertino Municipal Code.
c. Grading, street construction, underground utility and demolition hours for work
done more than 750 feet away from residential areas shall be limited to Monday
through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to 6 p.m.
Grading, street construction, demolition or underground utility work within 750
feet of residential areas shall not occur on Saturdays, Sundays, holidays, and
during the nighttime period as defined in Section 10.48.053(b) of the Municipal
Code.
d. Construction activities shall be limited to Monday through Friday, 7 a.m. to 8 p.m.
and Saturday and Sunday, 9 a.m. to 6 p.m. Construction activities are not allowed
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on holidays as defined in Chapter 10.48 of the Municipal Code. Nighttime
construction is allowed if compliant with nighttime standards of Section 10.48 of
the Cupertino Municipal Code.
e. Rules and regulations pertaining to all construction activities and limitations
identified in this permit, along with the name and telephone number of an
applicant appointed disturbance coordinator, shall be posted in a prominent
location at the entrance to the job site.
f. The applicant shall be responsible for educating all contractors and subcontractors
of said construction restrictions.
g. The applicant shall comply with the above grading and construction hours and
noise limit requirements unless otherwise indicated.
8. VIBRATIONS DURING CONSTRUCTION
In the event pile driving is required, the project applicant shall:
a. Notify all vibration-sensitive receptors within 300 feet of the project site of the
schedule 10 days prior to its commencement and include the contact information
for the person responsible for responding to complaints on site.
b. The project applicant shall retain a qualified acoustical consultant or structural
engineer, to prepare and implement a Construction Vibration Monitoring Plan,
which is subject to third-party peer review under the direction of the City at the
applicant's cost, for areas within 100 feet for pile driving, 25 feet for vibratory
roller, or 15 feet for other heavy equipment (e.g., bulldozer); and for historical
structures:within 135 feet for pile driving,40 feet for vibratory roller, or 20 feet for
other heavy equipment. The plan shall include surveying the condition of existing
structures; and determining the number, type, and location of vibration sensors
and establish a vibration velocity limit (as determined based on a detailed review
of the proposed building), method (including locations and instrumentation) for
monitoring vibrations during construction, location of notices displaying the
contact information for on-site coordination and complaints on site, and method
for alerting responsible persons who have the authority to halt construction
should limits be exceeded or damaged observed.
c. Submit final monitoring reports to the City upon completion of vibration related
construction activities.
d. Conduct a post-survey on any structure where either monitoring has indicated
high vibration levels or complaints that damage has occurred are received.
e. The project applicant shall be responsible for appropriate repairs as determined
by the qualified acoustical consultant or structural engineer where damage has
occurred as a result of construction activities.
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9. LANDSCAPE INSTALLATION/REHABILITATION SUBMITTAL
Prior to issuance of building permits, the applicant shall submit a Prescriptive
Compliance Application per sections 14.15.040 A, B, and C of the Landscape
Ordinance. The Water-Efficient Design Checklist (Appendix A of Chapter 14.15),
landscape design plans, and irrigation plans shall be reviewed and approved to the
satisfaction of the Director of Community Development prior to issuance of building
permits. Prior to final occupancy, the applicant shall submit the documentation per
sections 14.15.040 D, E, F, and G of the Landscape Ordinance
10. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible for consulting other departments and/or agencies with
regard to the proposed project for additional conditions and requirements. Any
misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
11. INDEMNIFICATION
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
likewise agree to indemnify, defend, and hold harmless the indemnified parties from
and against any damages, attorneys' fees, or costs awards, including attorneys' fees
awarded under Code of Civil Procedure section 1021.5, assessed or awarded against
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the indemnified parties. The Applicant shall cooperate with the City to enter a
Reimbursement Agreement to govern any such reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment) if made necessary by
proceedings challenging the project approvals and related environmental review, if
the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
12. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions. Pursuant to
Government Code Section 66020(d) (1), these Conditions constitute written notice of
a statement of the amount of such fees, and a description of the dedications,
reservations, and other exactions. You are hereby further notified that the 90-day
approval period in which you may protest these fees, dedications, reservations, and
other exactions, pursuant to Government Code Section 66020(a), has begun. If you
fail to file a protest within this 90-day period complying with all of the requirements
of Section 66020, you will be legally barred from later challenging such exactions.
This Director's approval is effective until January 6, 2025.
Also, please note that an appeal of this decision can be made within fourteen (14)
calendar days from the date of this letter (Friday,January 20, 2023 at 5:00 p.m.). If this
happens,you will be notified of a public hearing,which will be scheduled before the
Planning Commission. Please find a copy of the appeal form attached for your
convenience and to ensure your health and safety during the COVID pandemic (also
available online at: www.cupertino.org_/plannin fg orms.)The completed appeal form and
filing fee must be received by the deadline to appeal and may be submitted in one of the
following ways:
1. Preferred: Email the completed form to cityclerk@cupertino.org and call(408) 777-
3223 between 7:30AM - 5:30PM (M-Th) and 7:30AM - 4:30PM (F) to arrange for
payment by credit card.
2. Other options:
a. Mail the completed form and a check in the amount of$344 to Attn: City Clerk, City
of Cupertino, 10300 Torre Avenue, CA 95014.
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b. Obtain an appointment to file the appeal by contacting the City Clerk by email or
phone (see contact information above).
Please contact the City Clerk's office for additional guidance and instructions on how to
file.
Enclosures:
Attachment A: Plan set
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