TR-2023-006 - Approval Action LetterComm
PI
CUPERTINO
Case #
opmetupeFfANNING
t De(EU,1WeG4ITY DEVELOPMENT DEPARTMENT
DIVISION
MOVE
M "- Number]
CUPERTINO
Approval Body: Director / Staff
Approval Date 03/06/23
Signature
6WAA Woe
Case Manager
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333
CUPERTINO.ORG
Retroactive Tree Removal Approval Letter
Heather Sutton, West Valley Arborists
10275 Virginia Swan Place
Tree Removal Permit, TR-2023-006
SUBJECT: RETROACTIVE TREE REMOVAL PERMIT ACTION LETTER - Application
TR-2023-006
This letter confirms the decision of the Director of Community Development, given on
March 6, 2023, approving a Retroactive Tree Removal permit to consider the removal and
replacement of one (1) protected Development tree (38" DBH Coast Redwood) located in
a raised planter at the rear of a single-family residence located in a Planned Unit
Development zoning district at 10275 Virginia Swan Place. This permit is considered a
retroactive tree removal because 36 inches of trenching was conducted 7 feet from the base
of this tree which cut numerous large supporting anchorage roots before a permit was
obtained for the work. The required replacement tree will be a 36-inch box Kurrajong
(Brachychiton populneus) planted as shown on the replacement tree plan.
City staff has made the necessary finding that the Coast Redwood proposed for removal
is 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. These findings are 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 PROTECT
This approval for tree removal is based on the applicant's arborist report, dated
September 23, 2022, prepared by Jeremy Simon Tunnicliffe (Certified Arborist #WE-
7505A) consisting of fourteen (13) pages, including the report, photographs of the tree
proposed for removal, a site plan depicting the location of the tree to be removed and
a site plan depicting the proposed location for the replacement 36-inch-box Kurrajong
tree.
10275 Virginia Swan Place
Comm
�TnRiOev6pment Department
MarYh 67080
Planning Division — Cupertino
Page 2 of 5
CUPERTiNQ APPROVED
Case # 2. RWM-'JW(W THE PROTECT PLANS
Wpbaaap p4imitmt/property owner is responsible to verify all pertinent property data
inclu;Ataff
but not limited to property boundary locations, building setbacks, property
Approval Body: Direct
sizemg square footage, any relevant easements and/or construction records.
Approva I Date 3/66/23
� T�Srorocon+a+inn of a„3z rroperty data may invalidate this approval and may
Signature Cath�ti�iT(aaxbhitional review.
Case Manager
3. TREE REPLACEMENT
The required replacement tree is one 36-inch-box Kurrajong (Brachychiton populneus)
The Kurrajong was recommended by the City's consultant arborist on a past project
when trees are planted in an irrigated area such as a lawn. The replacement tree must
be planted within 30 days of this approval. The applicant shall provide the
Department of Communitv Development adeauate documentation. including but not
limited to photoeraphs. receipts, or invoices. to verifv that the replacement tree has
been planted.
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 Bav area extends from February 1 throuzh 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
Case #
10275 Virginia Swan Place
Comm
�TnRiOev6pment Department
MarYh 67080
Planning Division — Cupertino
Page 3 of 5
APPRCNffiEk possible nesting habitats in and immediately adjacent to the
TR-2023-oWruction areas for nests.
ApplicatiorLJJurr�lef� survey does not identify any nesting birds that would be affected by
Approval Body: Director / Sstruction activities, no further mitigation is required. If an active nest
Approval Date 03/06/23 containing viable eggs or young birds is found sufficiently close to work
areas to be disturbed by these activities, their locations shall be
Signature Catherine Taroned,,,,ume-r}od and protective measures implemented under the direction of
Case Man Ter
e 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. 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'
10275 Virginia Swan Place
Comm
�TnRiOev6pment Department
Mar)h 67080
Planning Division — Cupertino
Page 4 of 5
CUPERTIn0 feesARRR ibVE-D costs, liabilities, and expenses incurred in connection with such
Case # pTr6Qftther incurred by the Applicant, the City, or the parties initiating or
kWngivrMsuu4(proceeding.
Approval Body: DipgLctq�§ A shall agree to (without limitation) reimburse the City its actual
Approval Date �' fees and costs incurred in defense of the litigation. Such attorneys' fees and
Signature CatW*O@ TbMh�nclude amounts paid to the City's outside counsel and shall include City
Attm"atia-w 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.
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.
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 completed the (14) calendar day public posting and appeal period which ran
from Monday, February 20, 2023 to Monday, March 6, 2023 at 5:00 PM and no appeals of
your application or public comment regarding your application were received during this
time. Please take down the noticing board that you posted on site, and you may now
proceed with removing the Coast Redwood tree and planting the replacement tree.
Please send the vroiect vlanner a vhotoeravh of the planted 36-inch-box KurraionQ
replacement tree within 30 days of the removal of the Coast Redwood at
catherinet@cupertino.org so that the planner can then mark the permit as completed.
Sincerely,
Catherine Tarone
Permit Technician
Planning Division
10275 Virginia Swan Place Page 5 of 5
Comm �TRn��2026--006lIopment Department
MarYh 6,
Planning Division — Cupertino
CUPERTINO (408) 77A-F3P'KDVED
Case # cathETiM®ogio.org
Application Number(s)
Enclosure: Removal and replacement plan
Approval Body: Director / Staff
Approva I Date 03/06/23
Signature Catherine Tarone
Case Manager