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TR-2023-038 - Approval Action LetterComm . F lopmevt De(EUIMM41TY DEVELOPMENT DEPARTMENT PI11499F sion — upe?FANNING DIVISION �CUPERTIN4 ROVE CITY HALL Case # 23-034 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 LTMpopori"'w Numbers TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333 CUPERTINO CUPERTINO.ORG Approval Body: Director / Staff Approva I Date 09/22/23 Signature &p }i1 qr g023 Case Manager Hitesh Kalra 10569 San Leandro Avenue Cupertino, CA 95014 Tree Removal Permit, TR-2023-038 SUBJECT: TREE REMOVAL PERMIT ACTION LETTER — Application TR-2023-038 This letter confirms the decision of the Director of Community Development, given on Wednesday, September 20, 2023, approving a Tree Removal permit for the removal of one (1) protected Specimen tree (49-inch DBH, multi -trunk Coast Live Oak) in the rear yard of a residential property located at 10569 San Leandro Avenue in Cupertino. City staff, advised by the City's consultant arborist, Leonardo Tuchman, with West Coast Arborists (Certified Arborist #WE-12453A) has made the necessary finding consistent with 14.18.180(A)(2) that the 49-inch, multi -trunk Coast Live Oak proposed for removal, "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's consultant arborist's evaluation, the angle at which the Coast Live Oak is growing, and the placement of the tree overhanging the backyard limits the use of the backyard. The oak has limited further room for the trunk to expand as it is already in contact with the retaining wall and the children's play structure and as the tree continues to grow, it will likely damage play these structures. As a result of these findings, the City's consultant arborist found that the removal of the tree meets Finding for Approval #2. 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 April 26, 2023, prepared by Daniel Kaplanek, Certified Arborist for Monster Tree Service 10569 San Leandro Avenue Page 2 of 4 Comm np , 038 jo�9jent Department Planning Division —Cupertino CUPERTINO (Cei R(AVlZ&'ist #WE-11351A) consisting of ten (10) pages, including the report, Case # "t2o2pW 3the tree proposed for removal, a site plan depicting the location of the kpm&trboariomoved and a site plan depicting the proposed location for the replacement tree. Approva I Body: Director / Staff Approva I Date,) Q 43oQ4 nF Tup nT?nr_PQT PLANS _ Signature CathfNeeaT iant/property owner is responsible to verify all pertinent property data incI9ffT R"d1Fnot 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 Western Redbud (Cercis occidentalis) tree planted, as shown on the replacement tree plan, in the planter in the rear yard immediately to the left of the tree to be removed, due to the limited space, as recommended by the city arborist. The replacement tree must be planted within 30 days of this avvroval. The applicant shall provide the Department of Communitv 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 Bav area extends from February 1 throuah August 31. Preconstruction surveys (described below) are not required for tree removal or construction activities outside the nesting period. 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 10569 San Leandro Avenue Commnpe �Jopoqjent Department Planning Division —Cupertino Page 3 of 4 c u P E RT C n o "inc*RR BME f hrties") from and against any liability, claim, action, cause of action, Case # sTR�Og judgment, lien, levy, or proceeding (collectively referred to as AgpNwftdi"e�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, Approval Body: D{'�ectpr // Staff 1(es utiOn, or action approving the project, the related entitlements, environmental Approval Date 09(22/e ts, fiPdipg determinations, or any other permit or approval Signature Caffimdtis6Hzedefor the project. The indemnification shall include but not be limited to dan4d -,' , 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. 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, August 22, 2023 to Tuesday, September 5, 2023 at 5:00 pm and the public appeal period which ran from Tuesday, September 5, 2023 to Tuesday September 19, 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 live oak tree and planting the replacement tree. Please send me a Photograph of the planted 36-inch-box Western 10569 San Leandro Avenue Page 4 of 4 CUPERTINO Case # Comm pi�r.er�jo�nent Department Planning Division — Cupertino Redbud%P&Pj V&&nt tree within 30 days of the removal of the oak tree at cathT#i'4%RNRE@?Wo.org and then I can mark the permit as completed. Application Number(s) Approva I Bod,6iK6&r / Staff Approva I Da 0�9/22/23. Signature Catherine Taro e �'� CatherieTiae Permit Technician Planning Division (408) 777-3297 catherinet@cupertino.org Enclosure: Removal and replacement plan