TR-2023-005 - Approval Action Letter Comm - F lopme t De+2U,161 ieLG4ITY DEVELOPMENT DEPARTMENT
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CITY HALL
Case # 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
LM—MMMINM Numbers TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333
CUPERTINO CUPERTINO.ORG
Approval Body: Director/Staff
Approval Date 07/11/23
Signature b6biAiE446ne
Case Manager
Tree Removal Approval Letter
Brittany Sheade
1361 South De Anza
Tree Removal Permit, TR-2023-005
SUBJECT: RETROACTIVE TREE REMOVAL PERMIT ACTION LETTER— Application
TR-2023-005
This letter confirms the decision of the Director of Community Development, given on
Tuesday,July 11,2023,approving a Tree Removal permit for the removal and replacement
of one (1) protected Specimen and Development tree (40" DBH Cedrus deodara, Deodar
Cedar) located between two commercial buildings occupied by Yamagami's Nursery on
a commercial property located at 1361 South De Anza Blvd. The replacement tree will be
a 36-inch box Aesculus californica (California Buckeye), mid-canopy tree (due to the
proximity of high-voltage power lines in the recommended planting areas) planted as
shown on the replacement tree plan as approved by the City's consultant arborist.
City staff advised by the City's consultant arborist, has made the necessary finding that
the 40" Deodar Cedar proposed for removal that "the location of the trees restricts the
economic enjoyment of the property by severely limiting the use of property in a manner not
typically experienced by owners of similarly zoned and situated property, and the applicant has
demonstrated to the satisfaction of the approval authority that there are no reasonable alternatives
to preserve the tree(s)."
In the City arborist's evaluation, the damage to concrete is extensive and the only viable
way to prevent concrete in this area from being damaged in the future is tree removal.
These findings are necessary to grant the Tree Removal Permit in accordance with
Cupertino Municipal Code (CMC)Section 14.18.180 (A)(2).
The application is approved with the following conditions:
1. APPROVED PROJECT
This approval for tree removal is based on the applicant's arborist report, dated
January 19,2023,prepared by David Wood,Owner/Arborist of Serrano's Expert Tree
1361 South De Anza Blvd. Page 2 of 5
TR. 0 -005
Comm�u y1,2e0glopment Department
Planning Division — Cupertino
CUPERTINO Ser�iRBR&,VkOertified Arborist #WE-6960-A) consisting of three(3) pages, including
Case # t$►Rr M-Qt)&ographs of the tree proposed for removal, a site plan depicting the
Amoatiwmi6A1kQr4ree to be removed and a site plan depicting the proposed location for
the replacement tree.
Approval Body: Director/Staff
Approval Date1) Q r��/r�rz3AQv nF TUF nnnTPQ- PLANS
Signature CathThneaTi imnt/property owner is responsible to verify all pertinent property data
incl&"TAY dTrnot 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 tree is one 36-inch-box Aesculus califomica (California
Buckeye) planted as shown on the replacement tree plan. The replacement tree must
be planted within 30 days of this approval. The applicant shall provide the
Department of Community Development adequate documentation,including but not
limited to photographs, receipts, or invoices, to verify 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 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
1361 South De Anza Blvd. Page 3 of 5
TR. 0 -005
Cornirri y1,2e0glopment Department
Planning Division — Cupertino
c u P e RT I n o A P P R aVERtruction has been initiated in the area after which surveys can be
Case # TR-2023-eWed. During this survey, the ornithologist shall inspect all trees and
Application Nua% e)r possible nesting habitats in and immediately adjacent to the
construction areas for nests.
Approval Body: Director/Staff
Approval Date 07/11/f3 If the survey does not identify any nesting birds that would be affected by
construction activittes, no further mitigation is required. If an active nest
Signature Catherine Taroneyejg wiping viablo ogres or young birds is found sufficiently close to work
Case Managr2as to be disturbed by these activities, their locations shall be
dd]ocumented,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. 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
1361 South De Anza Blvd. Page 4 of 5
TR: 0 -005
Comm�au y1,2e0glopment Department
Planning Division — Cupertino
CUPERTIn0 autIARRIRd)VErDthe project. The indemnification shall include but not be limited to
Case # dpRiQ g$Q,r:pnd costs awarded against the City, if any, and cost of suit, attorneys'
4mmit ato)nduraithm costs, liabilities, and expenses incurred in connection with such
proceeding�whether incurred by the Applicant, the City, or the parties initiating or
Approval Body: DMIR suchproceeding.
Approval Date 07/ I/
Signature Cathe gppJjant shall agree to (without limitation) reimburse the City its actual
attoftw�'nfaer,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.
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 period which ran from Tuesday,
May 30,2023 to Tuesday,June 13,2023 at 5:00 pm and the public appeal period which ran
from Wednesday,June 14, 2023 to Wednesday,June 28, 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 deodar cedar tree and planting the replacement tree. Please
send me a photograph of the planted 36-inch-box California Buckeye replacement tree
within 30 days of the removal of the Deodar Cedar at catherinetecupertino.org and then
I can mark the permit as completed.
Sincerely,
1361 South De Anza Blvd. Page 5 of 5
Comm TnRni ,026-e05I pment Department
Yuly 7�1,20M
Planning Division — Cupertino
CUPERTINO APPROVED
Case# CathTRn2G2&0C5
Permoicladm y(5)
Planning Division
Approval Body(4R�e x�Yq�taff
Approval Date ,+ho7111+/A3,ror+;„�
Signature Catherine Tarone
Enclose Mal and replacement plan