TR-2023-002 Action Letter (dead)Comm - F lopmebt De(EUIMM41TY DEVELOPMENT DEPARTMENT
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sion - upe?FANNING DIVISION
�CUPERTIN4 ROVE
CITY HALL
Case # 23-0024 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
in" Numbers TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333
CUPERTINO CUPERTINO.ORG
Approval Body: Director / Staff
Approval Date
01 /27/23
Signature bff klWe2fa4W
Case Manager
Greg Miller
1500 Brommer Street
Santa Cruz, CA 95062
SUBJECT: TREE REMOVAL PERMIT ACTION LETTER - Application TR-2023-002
This letter confirms the decision of the Director of Community Development, given on
January 27, 2023 approving a Tree Removal Permit to allow the removal of one (1) dead
24-inch DBH Juniper development tree and its replacement with two new 24-inch-box
crepe myrtle trees planted on private property, as shown on the replacement tree map for
a residential property located in a Planned Unit Development at 22724 Majestic Oak Way.
Staff has made the finding that the protected tree is dead based on the definition provided
in Section 14.18.020 of the City's Protected Tree Ordinance. The finding is necessary to
grant the tree removal permit in accordance with Cupertino Municipal Code (CMC)
Section 14.18.150 (B)(2).
The application is approved with the following conditions:
1. APPROVED PROTECT
This approval is based on the certified arborist reports prepared by Greg Miller
(Certified Arborist, WE-6323A), dated 12/2/2022, each consisting of 7 pages that
include the application, photos of the dead tree, an evaluation of the health of the tree,
and a tree replacement proposal depicted on a site plan.
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.
3. TREE REPLACEMENT
The required replacement trees are two (2) 24-inch box Crepe Myrtle trees to be
planted on the subject property (located out of the city -owned right-of-way) in the
22724 Majestic Oak Way Page 2 of 4
Commum y ev�elopment Department
P I a n n erngaDiv:'soc*iecC(upiirWlacement plan within 30 days of tree removal. The applicant
CUPERTIn0 shams ri yg Department of Community Development adequate documentation,
Case # i udlMWjaot limited to photographs, receipts, or invoices, to verify that the
gleesI ave een p anted.
Approva I Body4. DiMg9E1t#-#FrREES
Approva I Date iMwicant understands that replacement trees may not be removed without a Tree
Signature Cath19flflQPVArgermit and that they shall be responsible for ensuring the proper
mai e&and care of the tree. 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.
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
22724 Majestic Oak Way Page 3 of 4
Commum y ev�elopment Department
Planning Divisioq$euEIgM, ie iifidn general, exclusion zones shall be a minimum of 300 feet
CUPERTINQ APPROVEryptors and 75 feet for passerines and other birds. The active nest within
Case # TR-2023 M2xclusion zone shall be monitored on a weekly basis throughout the
Application Numptli ig sectsvi L to id ntify signs of disturbance and confirm nesting status.
The radius of an exclusion zone may be increased by the qualified biologist,
ApprovaI Body: Director /Sti6ffroject activities are determined to be adversely affecting the nesting
Approval Date 01/27/23 birds. Exclusion zones may be reduced by the qualified biologist only in
Signature Catherine Taroneonsultation with California Department of Fish and Wildlife. The
Case Man.Qfp ec ion 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
likewise agree to indemnify, defend, and hold harmless the indemnified parties from
and against any damages, attorneys' fees, or costs awards, including attorneys' fees
awarded under Code of Civil Procedure section 1021.5, assessed or awarded against
the indemnified parties. The Applicant shall cooperate with the City to enter a
Reimbursement Agreement to govern any such reimbursement.
22724 Majestic Oak Way Page 4 of 4
Communi y evelopment Department
PIann' D1L,Iipkm, tot Gbhoirt�poe to (without limitation) reimburse the City for all costs
CUPERTINO incuA FORIy\jr�ditional investigation or study of, or for supplementing, redrafting,
Case # rr-�s!I�;2'r0oTending, any document (such as an Environmental Impact Report,
4%,A rygg�—p ion, specs is p an, or general plan amendment) if made necessary by
proceedings challenging the project approvals and related environmental review, if
Approval Body: DiWAPP ic4 esires to continue to pursue the project.
Approva I Date 01 /27/23
Signature CatQliRe, EEp&ceant shall agree that the City shall have no liability to the Applicant for
busjqg§�Algaruption, 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.
Please note that an appeal of this decision may be made within 14 calendar days
from the date of this letter. CMC 14.18.150(B)(2) Exemptions, permits the removal
of dead trees before the approval is granted provided that a retroactive tree removal
permit is submitted within 5 days. If an appeal is filed, you will be notified of a
public hearing, which will be scheduled before the Planning Commission.
Sincerely,
Catherine Tarone
Permit Technician
Planning Division
(408) 777-3297
catherinet@cupertino.org
Enclosure: arborist report