TUP-2022-005 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, Interim Director of Community Developme4 1-1
Prepared by: Gian Paolo Martire, Senior Planner
Date: June 26, 2023
Subject: Director's Temporary Use Permit, TUP-2022-005, to allow continued
outdoor operations of a Secured Construction Yard in a portion of the rear
parking lot at 10450 Bubb Road.
Chapter 19.12.030 of the Cupertino Municipal Code allows for administrative
approval of a temporary use permit, authorizing the use of a site in any zoning
district for a temporary use. The Director reports his/her decision to the City
Council&Planning Commission in time to allow an appeal of the decision within
fourteen calendar days.
DISCUSSION
The applicant, David Whitney, on behalf of Apple, Inc., is requesting approval to allow
the continued use of a secured temporary fence enclosure with two tents, six shipping
containers, and a dumpster for a period of up to one year,located within the parking area
of an office/light industrial building at 10450 Bubb Road (Attachment 1).
Background
The temporary facility will be used to store materials for the construction activities within
the building.
Location
The subject property is an existing office/light industrial complex occupied by Apple,Inc.
The property is bounded by office/light industrial buildings to the north and west (Bubb
Road and the railway), office buildings to the east, and mixed-use commercial and
residential developments to the south (McClellan Road).
TUP-2022-005
10450 Bubb Road Temporary Enclosure Page 2
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Proposed enclosure location
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The enclosure would be located to the rear of the existing buildings in the parking area
facing McClellan Road.
Enclosure
The enclosure has a proposed area of 15,417 sq.ft.. A new eight-foot chain link fence with
white slats will surround the proposed area where the gaps between the shipping
containers exist. Six approximately 38' x 10' shipping containers, as well as two
approximately 5' x 30' tents will be within the enclosure area..
Parking
The proposed enclosure would temporarily remove a total of 32 parking spaces. The
building on site measures a total of 44,952 sq. ft. of area. See Table 1 below.
Table 1 Parking Demand
Building Area(sf) Use Ratio Required
Bubb 12A 29,500 Office 1/285 104
Bubb 12B 15,452 Industrial 1/450 34
The site would require a total of 138 off-street parking spaces based on Cupertino
Municipal Code (CMC) Section 19.124.040 (A). Currently, the site provides a total of 199
spaces, an excess of 61 spaces before the project. After the project is implemented, there
TUP-2022-005
10450 Bubb Road Temporary Enclosure Page 3
would be a parking surplus of 29; therefore, no parking impacts are anticipated.
Visibility
The proposed enclosure is located behind the Building onsite, over 200 feet away from
Bubb Road and more than 58 feet from McClellan Road to the south. Visibility to the
enclosure from the streets and the adjacent commercial and residential structures is
obstructed by the building from Bubb Road, and the partially obstructed by the existing
landscaping along McClellan Road. The proximity of the proposal and the existing
landscaping further limit visibility from the public right-of-way and adjacent private
properties.
ACTION
The Director of Community Development deems this application as minor and approves
the temporary enclosure subject to the following conditions of approval.
SECTION I: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT.
1. APPROVED PROJECT
This approval is based on the plan set entitled 'Bubb 12B Patio: 10460 Bubb Road
Cupertino, CA 95014" consisting of sheets labeled as A0.2, dated November 7,
2022, except as may be amended by the following conditions.
2. ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible for verifying 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 project data may invalidate
this approval and require additional review.
3. DURATION
The outdoor enclosure and all associated equipment shall be removed from the
site no later than one year after approval, or June 26, 2024. A new Temporary Use
Permit with updated justification shall be submitted to the City for review and
approval prior to the Temporary Use Permit expiration.
4. CONSULATION WITH OTHER DEPARMENTS
The applicant is responsible to consult with 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.
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10450 Bubb Road Temporary Enclosure Page 4
5. 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 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.
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10450 Bubb Road Temporary Enclosure Page 5
6. 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 approval of the temporary use permit is effective June 26, 2023. The 14-calendar-day
appeal period will expire on July 10, 2023.
Attachments
Attachment 1 —Plan Set