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DIR 2022-016 - Action LetterCITY OF CUPERTINO 10300 Torre Avenue, Cupertino, California 95014 (408) 777-3308 To: Mayor and City Council Members Chairperson and Planning Commissioners From: Luke Connolly, Assistant Director of Community Development Prepared by: Emi Sugiyama, Associate Planner /-. � �E Date: May 26, 2023 Subject: Director's Minor Modification, DIR-2022-016, to consider rear yard landscape modifications and an attached accessory structure on a single- family residential property within the Seven Springs Planned Development at 11513 Seven Springs Lane, APN 366 52 013. 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 subject property is located at 11513 Seven Springs Lane in the Seven Springs Planned Development, south of Rainbow Road and west of South Stelling Road (Figure 1). The property is zoned P(Res), or Planned Development with Residential use intended. Development on the property is subject to the development standards outlined in City of Cupertino's Municipal Code ("City Code") Chapter 19.28 for R1 zoned lots, Zoning Permit Z- 1980-25, Use Permit U-1983-09, and Tentative Map TM-1985-03. 1 The existing single-family residence was originally approved under Use Permit U-1983- 09, which allowed the construction of 413 residential single-family units in the Seven Springs Development. In accordance with Planned Development Zones ordinance standards, any minor changes to a previously approved Use Permit must be approved through a Director's Minor Modification (City Code Section 19.80.050), which is the reason for this application. DISCUSSION The property owners, Ajat Hukkoo and Priti Hukkoo, are proposing a minor modification to the previously approved Use Permit U-1983-09 for 11513 Seven Springs Lane. The proposed modifications through DIR-2022-016 include the following: a. Installation of new attached pergola b. Installation of a new outdoor kitchen under pergola c. Removal and replacement of 1,150 square feet of landscaped area in the in rear yard The project complies with all requirements of the original Use Permit (U-9183-09) and the Accessory Buildings/Structures Ordinance, Chapter 19.100 of the Cupertino Municipal Code. The Accessory Buildings/Structures Ordinance states that attached unenclosed patio covers, including pergolas, shall have a minimum ten (10) foot rear -yard setback and a minimum three (3) foot side -yard setback. Per the approved Site Plan (Sheet C1.0), the pergola will be set back 15 feet, four (4) inches from the rear property line, approximately five (5) feet from the south side property line, and approximately 15 feet from the north side property line. The proposed outdoor kitchen and attached pergola is not considered an addition of floor area as the pergola does not meet the definition of floor area as defined by Chapter 19.08 of the City of Cupertino Municipal Code. Specifically, the pergola and outdoor kitchen are not enclosed by walls on three or more sides and therefore do not create a substantially enclosed area. The proposed pergola, being a solid projection, counts, however, towards the lot's coverage calculation which is typically limited to 50 percent of the lot size. The proposed project would result in a lot coverage ratio of approximately 38 percent, a six (6) percent increase over the existing lot coverage ratio, well below the 50 percent cap. 2 O 1 CJI I�o�Yron Ro�i�tb+. tr')'TAWW h10146r — ir 'tpA��uf P s Y-4y •[� GilY�5=W+2'-+I"G WI'k'.O�J( r-fl 11hAGL(J, J L 23 , •N,F.QWVKKA , IA7W?kL G�R/rDL f'"A Y) Figure 2. Elevation Drawing of proposed attached pergola, DIR-2022-016 The project is consistent with the scope of work previously approved for other residences within the Seven Springs Planned Development including: DIR-2014-39: Landscaping enhancements DIR-2018-16: Addition of attached pergola The project proposal was also reviewed by the Seven Springs Homeowners Association on April 25, 2022. A public comment period was conducted and no comments from surrounding neighbors were received. The modification does not conflict with the approved floor area ratio, lot coverage, height, or any other standards of the previously approved Use Permit or of the Cupertino Municipal Code. Furthermore, the project is not anticipated to create any additional adverse privacy impacts for adjacent residences, as the project is fully contained within the existing footprint of the residence and no horizontally facing windows are proposed. The modification to the design is therefore considered minor in nature. ACTION The Director of Community Development deems the project categorically exempt from environmental review under CEQA Guidelines, Article 19, Section 15301: Existing Facilities, and further deems the modification to be minor and approves the project subject to the following conditions of approval: 3 1. APPROVED EXHIBITS Approval is based on exhibits titled "Back Yard Remodel Project Hukkoo's Residence, 11513 Seven Spring Lane, Cupertino, CA 95014", prepared by Helen Choi of Visions4design, consisting of 10 sheets labeled C1.0, C2.0, A1.0, A2.0, A3.0, A4.0, A5.0, A6.0, A7.0, and S-1, 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. 3. BUILDING PERMITS The applicant shall consult with the City Building Division to obtain the necessary building permits prior to commencement of work. 4. ANNOTATION OF THE CONDITIONS OF APPROVAL The conditions of approval set forth shall be incorporated into and annotated on the building plans. 5. PREVIOUS CONDITIONS OF APPROVAL All prior conditions of approval, in accordance with U-1983-09 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. 6. 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. 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 0 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 on holidays as defined in Chapter 10.48 of the Municipal Code. Night time 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. The applicant shall comply with the above grading and construction hours and noise limit requirements unless otherwise indicated. 5. DARK SKY COMPLIANCE Prior to issuance of Building Permits, the applicant/property owner shall submit final plans in compliance with the approved lighting plans to comply with development standards of Cupertino Municipal Code Section 19.102.040 Outdoor Lighting Requirements. In the event changes are proposed from the approved plans, said changes must be reviewed and approved by the Director of Community Development or their designee. The applicant shall provide all documentation required to determine compliance with the Municipal Code. 6. FUGITIVE DUST CONTROL Prior to issuance of the any demolition, grading, or building permit, include on all permit plans, the full text of each of the Bay Area Air Quality Management District's Basic Control Measures from the latest version of BAAQMD's CEQA Air Quality Guidelines, as subsequently revised, supplemented, or replaced, to control fugitive dust (i.e., particulate matter PM2.5 and PM10) during demolition, ground disturbing activities and/or construction. 7. VOLATILE ORGANIC COMPOUND EMISSIONS FROM PAINT Prior to issuance of the first building permit, the Applicant shall include a note on all plans where paint specifications or other design specifications are listed, that the 5 project design will incorporate only low-VOC paint (i.e., 50 grams per liter [g/L] or less) for interior and exterior wall architectural coatings. 8. AVOID NESTING BIRDS DURING CONSTRUCTION Prior to issuance of the any demolition, grading and building permit, indicate the following on all construction plans: a. Demolition, construction, ground -disturbing, and tree removal/pruning activities shall be scheduled to be completed prior to nesting season (February 1 through August 31), if feasible. b. If demolition, construction, ground -disturbing, or tree removal/pruning activities occur during the nesting season (February 1 and August 31), preconstruction surveys shall be conducted as follows: i. No more than 7 days prior to the start of demolition, construction, ground - disturbing, or tree removal/pruning activities, in order to identify any active nests with eggs or young birds on the site and surrounding area within 100 feet of construction or tree removal activities. ii. Preconstruction surveys shall be repeated at 14-day intervals until demolition, construction, ground -disturbing, or tree removal/pruning activities have been initiated in the area, after which surveys can be stopped. As part of the preconstruction survey(s), the surveyor shall inspect all trees and other possible nesting habitats in, and immediately adjacent to, the construction areas for active nests, while ensuring that they do not disturb the nests as follows: 1) For projects that require the demolition or construction one single- family residence, ground disturbing activities affecting areas of up to 500 square feet, or the removal of up to three trees, the property owner or a tree removal contractor, if necessary, is permitted to conduct the preconstruction surveys to identify if there are any active nests. If any active nests with eggs or young birds are identified, the project applicant shall retain a qualified ornithologist or biologist to identify protective measures. I 2) For any other demolition, construction and ground disturbing activity or the removal of four or more trees, a qualified ornithologist or biologist shall be retained by the project applicant to conduct the preconstruction surveys. iii. If the preconstruction survey does not identify any active nests with eggs or young birds that would be affected by demolition, construction, ground - disturbing or tree removal/pruning activities, no further mitigating action is required. If an active nest containing eggs or young birds is found sufficiently close to work areas to be disturbed by these activities, their locations shall be documented, and the qualified ornithologist or biologist shall identify protective measures to be implemented under their direction until the nests no longer contain eggs or young birds. iv. Protective measures may include, but are not limited to, 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 or biologist, 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 ornithologist or biologist, if project activities are determined to be adversely affecting the nesting birds. Exclusion zones may be reduced by the qualified ornithologist or 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. V. 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 prepared by the qualified ornithologist or biologist and submitted to the Director of Community Development or his or 7 her designee, through the appropriate permit review process (e.g., demolition, construction, tree removal, etc.), and be completed to the satisfaction of the Community Development Director prior to the start of demolition, construction, ground -disturbing, or tree removal/pruning activities. 9. ARCHAEOLOGICAL RESOURCES AND TRIBAL CULTURAL RESOURCES Prior to the issuance of any demolition, grading or building permit involving soil disturbance, the project applicant shall provide written verification, including the materials provided to contractors and construction crews, to the City confirming that contractors and construction crews have been notified of basic archaeological site indicators, the potential for discovery of archaeological resources, laws pertaining to these resources, and procedures for protecting these resources as follows: a. Basic archaeological site indicators that may include, but are not limited to, darker than surrounding soils of a friable nature; evidence of fires (ash, charcoal, fire affected rock or earth); concentrations of stone, bone, or shellfish; artifacts of stone, bone, or shellfish; evidence of living surfaces (e.g., floors); and burials, either human or animal. b. The potential for undiscovered archaeological resources or tribal cultural resources on site. c. The laws protecting these resources and associated penalties, including, but not limited to, the Native American Graves Protection and Repatriation Act of 1990, Public Resources Code Section 5097, and California Health and Safety Code Section 7050 and Section 7052. d. The protection procedures to follow should construction crews discover cultural resources during project -related earthwork, include the following: i. All soil disturbing work within 25 feet of the find shall cease. ii. The project applicant shall retain a qualified archaeologist to provide and implement a plan for survey, subsurface investigation, as needed, to define the deposit, and assessment of the remainder of the site within the project area to determine whether the resource is significant and would be affected by the project. iii. Any potential archaeological or tribal cultural resources found during construction activities shall be recorded on appropriate California Department of Parks and Recreation forms by a qualified archaeologist. If the resource is a tribal cultural resource, the consulting archaeologist shall consult with the appropriate tribe, as determined by the Native American Heritage Commission, to evaluate the significance of the resource and to recommend appropriate and feasible avoidance, testing, preservation or mitigation measures, in light of factors such as the significance of the find, proposed project design, costs, and other considerations. The archeologist shall perform this evaluation in consultation with the tribe. 10. HUMAN REMAINS AND NATIVE AMERICAN BURIALS Prior to issuance of the any demolition, grading and building permits that involve soil disturbance, include on plans a note that, during project construction, the project applicant shall comply with California Health and Safety Code Section 7050.5 and California Public Resources Code Section 5097.98. a. In the event of discovering human remains during construction activities, there shall be no further excavation or disturbance of the site within a 100-foot radius of the remains, or any nearby area reasonably suspected to overlie adjacent remains. b. The Santa Clara County Coroner shall be notified immediately and shall make a determination as to whether the remains are Native American. c. If the Santa Clara County Coroner determines that the remains are not subject to his authority, he shall notify the Native American Heritage Commission (NAHC) within 24 hours. d. The NAHC shall attempt to identify descendants (Most Likely Descendant) of the deceased Native American. e. The Most Likely Descendant has 48 hours following access to the project site to make recommendations or preferences regarding the disposition of the remains. If the Most Likely Descendant does not make recommendations within 48 hours after being allowed access to the project site, the owner shall, with appropriate dignity, reinter the remains in an area of the property secure from further disturbance and provide documentation about this determination and the location of the remains to the NAHC and the City of Cupertino. Alternatively, if the owner does not accept the Most Likely Descendant's recommendations, the owner or the descendent may request mediation by the NAHC. Construction shall halt until the mediation has concluded. 9 11. STORMWATER RUNOFF CONTAMINATION Prior to issuance of any grading or building permits, the project applicant shall demonstrate compliance with Chapter 9.18 (Stormwater Pollution Prevention and Watershed Protection) of the Cupertino Municipal Code, to the satisfaction of the City Engineer or his or her designee. All identified stormwater runoff control measures shall be included in the applicable construction documents. 12. NOISE AND VIBRATION NOTICE At least 10 days prior to the start of any demolition, ground disturbing, or construction activities, the project applicant/contractor shall send notices of the planned activity by first class mail as follows: a. For projects on sites that are more than 0.5 acres or four or more residential units the notices shall be sent to off -site businesses and residents within 500 feet of the project site; b. For projects on sites between 0.25 to 0.5 acres, or two or three residential units (not including Accessory Dwelling Units) notices shall be sent to off -site businesses and residents within 250 feet of the project site; or c. For projects on sites less than 0.25 acres or one residential unit, the notices shall be sent to off -site businesses and residents within 100 feet of the project site. The notification shall include a brief description of the project, the activities that would occur, the hours when activity would occur, and the construction period's overall duration. The notification should include the telephone numbers of the contractor's authorized representatives that are assigned to respond in the event of a noise or vibration complaint. The City will provide mailing addresses for the Applicant's use. The project applicant shall provide the City with evidence of mailing of the notice, upon request. If pile driving, see additional noticing requirements below. 13. NOISE AND VIBRATION SIGNAGE At least 10 days prior to the start of any demolition, ground disturbing, or construction activities, the project applicant/contractor shall ensure that a sign measuring at least two feet by three feet shall be posted on construction fencing at the entrance(s) to the job site, clearly visible to the public, and include the following: a. Permitted construction days and hours; b. A description of proposed construction activities; c. Telephone numbers of the City's and contractor's authorized representatives that are assigned to respond in the event of a noise or vibration complaint; and 10 d. Contact information for City's and contractor's authorized representatives that are assigned to respond in the event of a complaint related to fugitive dust, pursuant to the requirements for compliance with BAAQMD's CEQA Air Quality Guidelines. If the authorized contractor's representative receives a complaint, they shall investigate, take appropriate corrective action, and report the complaint and the action taken to the City within three business days of receiving the complaint. 14. NOISE DURING CONSTRUCTION Prior to issuance of any demolition, grading or building permit, include on plans a note that, during project construction, the project applicant shall incorporate the following measures to reduce noise during construction and demolition activity: a. The project applicant and contractors shall prepare and submit a Construction Noise Control Plan to the City's Planning Department for review and approval prior to issuance of the first permit. The Construction Noise Plan shall demonstrate compliance with daytime and nighttime decibel limits pursuant to Chapter 10.48 (Community Noise Control) of Cupertino Municipal Code. The details of the Construction Noise Control Plan shall be included in the applicable construction documents and implemented by the on -site Construction Manager. Noise reduction measures selected and implemented shall be based on the type of construction equipment used on the site, distance of construction activities from sensitive receptor(s), site terrain, and other features on and surrounding the site (e.g., trees, built environment) and may include, but not be limited to, temporary construction noise attenuation walls, high quality mufflers. During the entire active construction period, the Construction Noise Control Plan shall demonstrate that compliance with the specified noise control requirements for construction equipment and tools will reduce construction noise in compliance with the City's daytime and nighttime decibel limits. b. Select haul routes that avoid the greatest amount of sensitive use areas and submit to the City of Cupertino Public Works Department for approval prior to the start of the construction phase. c. Signs will be posted at the job site entrance(s), within the on -site construction zones, and along queueing lanes (if any) to reinforce the prohibition of unnecessary engine idling. All other equipment will be turned off if not in use for more than 5 minutes. 11 d. During the entire active construction period and to the extent feasible, the use of noise producing signals, including horns, whistles, alarms, and bells will be for safety warning purposes only. The construction manager will use smart back-up alarms, which automatically adjust the alarm level based on the background noise level or switch off back-up alarms and replace with human spotters in compliance with all safety requirements and law. 15. PALEONTOLOGICAL RESOURCES Prior to issuance of the any demolition, grading or building permit, include on plans a note that, during project construction, the project applicant shall implement the following measures: a. If paleontological resources are encountered during ground disturbing and/or other construction activities, all construction shall be temporarily halted or redirected to allow a qualified paleontologist, which shall be retained by the project applicant, to assess the find for significance and the Applicant shall notify the City. b. If paleontological resources are found to be significant, the paleontological monitor shall determine appropriate actions, in coordination with a qualified paleontologist, City staff, and property owner. Appropriate actions may include, but are not limited to, a mitigation plan formulated pursuant to guidelines developed by the Society of Vertebrate Paleontology and implemented to appropriately protect the significance of the resource by preservation, documentation, and/or removal, prior to recommencing activities. Measures may include, but are not limited to, salvage of unearthed fossil remains and/or traces (e.g., tracks, trails, burrows); screen washing to recover small specimens; preparation of salvaged fossils to a point of being ready for curation (e.g., removal of enclosing matrix, stabilization and repair of specimens, and construction of reinforced support cradles); and identification, cataloging, curation, and provision for repository storage of prepared fossil specimens. 16. 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 12 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. 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. 17. 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. Please note that if this permit is not vested within two years, it shall expire on May 26, 2025. 13 Also, please note that an appeal of this decision can be made within fourteen (14) calendar days from the date of this decision (Friday, June 9, 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. A copy of the appeal form is 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: Bring a signed copy of the appeal form to the City Clerk's office between 7:30AM — 5:OOPM (M-Th) and 7:30AM — 4:30PM (F). 2. Other options: a. Mail the completed form and a check in the amount of $347 to Attn: City Clerk, City of Cupertino, 10300 Torre Avenue, CA 95014. b. 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. Please contact the City Clerk's office for additional guidance and instructions on how to file. Enclosures: Attachment A: Plan Set 14