TR-2022-006 - PC Reso 2023-13 signedCITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO.2023-13
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
RECOMMENDING APPROVAL OF A TREE REMOVAL PERMIT TO
REMOVE AND REPLACE FIFTYONE (51) DEVELOPMENT TREES TO
ACCOMMODATE A PROPOSED MIXED -USE DEVELOPMENT WITH 34
RESIDENTIAL UNITS, 7,595 SQ. FT. COMMERCIAL SPACE. LOCATED AT
1655 S. DE ANZA BLVD. (APN: 366-10-061, -126)
The Planning Commission recommends that the City Council approve the Tree Removal
Permit, in substantially similar form to the Draft Resolution attached hereto as Exhibit
TR.
PASSED AND ADOPTED at a Regular Meeting of the Planning Commission of the City
of Cupertino the 23rd day of May 2023, by the following roll call vote:
AYES: COMMISSIONERS:
NOES: COMMISSIONERS:
ABSTAIN: COMMISSIONERS:
ABSENT: COMMISSIONERS:
ATTEST:
Piu Ghosh
Planning Manager
Scharf, Madhdhipatla, Fung, Lindskog, Mistry
None
None
None
APPROVED:
Steven Scharf
Chair, Planning Commission
EXHIBIT TR
RESOLUTION NO.
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A TREE REMOVAL PERMIT TO REMOVE, AND FITYONE (51)
DEVELOPMENT TREES TO ACCOMMODATE A PROPOSED MIXED -USE
DEVELOPMENT WITH 34 RESIDENTIAL UNITS, 7,595 SQ. FT. COMMERCIAL
SPACE. LOCATED AT 1655 S. DE ANZA BLVD. (APN: 366-10-061, -126)
SECTION I: PROTECT DESCRIPTION
Application No.: TR-2022-006
Applicant: Carlson Chan (Prospect Venture LLC)
Property Owner: Prospect Venture, LLC
Location: 1655 S. De Anza Blvd. (APNs 366-10-061, -126)
SECTION II: FINDINGS FOR TREE REMOVAL:
WHEREAS, the Planning Commission of the City of Cupertino received an application
for a Tree Removal Permit as described in Section I of this resolution; and
WHEREAS, the proposed project, including the Tree Removal Permit, is fully described
and analyzed in the Initial Study and proposed Mitigated Negative Declaration (State
Clearinghouse No. 2022100314) ("IS/MND") for the Project; and
WHEREAS, on May 23, 2023 the Planning Commission recommended on a X-X vote that
the City Council adopt the Mitigated Negative Declaration (EA-2022-005) and approve
the Development Permit (DP-2021-002) in substantially similar form to the Resolution
presented (Resolution No. XXXX), approve the Architectural and Site Approval Permit
(ASA-2021-004) in substantially similar form to the Resolution presented(Resolution No.
XXXX), approve the Tree Removal Permit (TR-2022-006) in substantially similar form to
the Resolution presented (Resolution No. XXXX), approve the Use Permit (U-2021-001)
in substantially similar form to the Resolution presented (Resolution No. XXXX), and
approve the Vesting Tentative Map (TM-2021-003), in substantially similar form to the
Resolution presented (Resolution No. XXXX); and
WHEREAS, all necessary public notices having been given as required by the City of
Cupertino Municipal Code and the Government Code, and the Planning Commission
held at least one public hearing in regard to this application, and
Resolution No.
Page 3
WHEREAS, on June 21, 2023, the City Council held a public hearing to consider the
Project; and
WHEREAS, the City Council of the City of Cupertino is the decision -making body for
this Resolution; and
WHEREAS, the applicant has met the burden of proof required to support the application
for a Development Permit.; and
WHEREAS, on , 2023, the City Council adopted Resolution No. 23-
adopting the Mitigated Negative Declaration for the proposed project, adopting and
incorporating into the Project, and implementing as conditions of approval all of the
mitigation measures for the project that are identified in the Final Initial Study/Mitigated
Negative Declaration, and adopting the Mitigation Monitoring and Reporting Program
for the Project, Resolution No. 23- approving the Use Permit; Resolution No. 23-
approving the Development Permit; Resolution No. 23- approving a
Vesting Tentative Map and Resolution No. 23- approving the Architectural and
Site Approval Permit for the proposed project; and
WHEREAS, the City Council finds as follows with regard to this application:
a) 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 accommodate for the new development's structures, walkways and internal street network
to public open spaces, the existing trees cannot be preserved in their locations. The applicant
proposes replacement trees throughout the site in conformance with the Municipal Code
Ordinance requirements and proposes to locate the replacements where tree coverage is
needed, while preserving virtually all the trees that are not within the development area of
the project site. The applicant has further agreed to try to retain many of the previously
proposed tree removals in order to allow privacy protection using the existing trees on the
perimeter of the property.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the MND, subject to the conditions which are enumerated
in this Resolution, beginning on PAGE 4 herein, and subject to the conditions contained
in all other Resolutions approved for this Project
Resolution No.
Page 4
The application for an Architectural and Site Approval, Application No. TR-2022-006, is
hereby approved, and that the subconclusions upon which the findings and conditions
specified in this Resolution are based are contained in the Public Hearing record
concerning Application no. TR-2022-006 as set forth in the Minutes of the City Council
Meeting of June 21, 2023 Meeting, and are incorporated by reference as though fully set
forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set dated July 19, 2022 consisting of 72 sheets labeled
as 1655 S De Anza Boulevard, A.1— A.46, C1.0 — C10.0, L1 — L5, and E.000-E.103,
drawn by Dahlin Group, Sandis, Ripley Design Group, FTF Engineering, and
Emerald City Engineers, except as may be amended by conditions in this
resolution.
2. ACCURACY OF 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. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. EA-2022-005, DP-2021-002, TM-2021-
003, U-2021-002, and ASA-2021-004 shall be applicable to this approval.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
first page of the building plans.
5. TREE RETENTION
If possible, retain the mature Italian Cypresses along the western property line (trees
24 — 36, 38-40, and 41— 54 on Sheet L6) to provide ample privacy protection to the rear
yards of the adjoining single-family residences, by modifying the on -site grading. If
this is not possible, replace the trees with Privacy Planting trees or shrubs as identified
in the Privacy Planting list (maintained by the Planning Department) used in R1
zoning districts.
Resolution No.
Page 5
6. TREE REPLACEMENT SIZE
The applicant shall provide adequate tree replacements for trees proposed to be
removed in conformance with the replacement guidelines per Cupertino Municipal
Code Section 14.18.160. The size of the proposed replacement trees shall be modified
as follows to be consistent with the City's Protected Tree Ordinance unless deemed
infeasible by the City's Consulting Arborist:
a. Diameter of trunk size of removed tree up to 12 inches shall be replaced with
one 24-inch box tree;
b. Over 12 inches and up to 36 inches shall be replaced by two 24-inch box tree or
one 36-inch box tree; and
c. Over 36 inches shall be replaced with one 36-inch box tree.
If it is determined that it is physically not feasible to plant the required replacements
trees, the Applicant may pay in -lieu fees determined to be appropriate by the
Community Development Director.
7. ARBORIST REVIEW
Prior to building permit issuance, the number, location and species of trees shall be
reviewed and approved by the City in consultation with the City's Consulting
Arborist.
The replacement trees shall be planted prior to building permit final. The Applicant
shall provide the Department of Community Development adequate documentation,
including, but not limited to, photographs, receipts or invoices, to verify that
replacements have been planted. The City's consulting arborist shall inspect the trees
after planting and a report ascertaining the good health of the trees mentioned above
shall be provided prior to issuance of final occupancy.
8. TREE PROTECTION
a. As part of the demolition or building permit drawings, a tree protection plan shall
be prepared by a certified arborist for the trees to be retained. In addition, the
following measures shall be added to the protection plan:
• For trees to be retained, chain link fencing and other root protection shall be
installed around the dripline of the tree prior to any project site work.
• No parking or vehicle traffic shall be allowed under root zones, unless using
buffers approved by the Project Arborist.
• No trenching within the critical root zone area is allowed. If trenching is
needed in the vicinity of trees to be retained, the City's consulting arborist shall
be consulted before any trenching or root cutting beneath the dripline of the
tree.
Resolution No.
Page 6
• Wood chip mulch shall be evenly spread inside the tree projection fence to a
four -inch depth.
• Tree protection conditions shall be posted on the tree protection barriers.
• Retained trees shall be watered to maintain them in good health.
• A covenant on the property shall be recorded that identifies all the protected
trees, prior to final occupancy.
b. The tree protection measures shall be inspected and approved by the certified
arborist prior to issuance of building permits.
c. The City's consulting arborist shall inspect the trees to be retained and shall
provide reviews prior to issuance of demolition, grading or building permits.
d. A report ascertaining the good health of the trees mentioned above shall be
provided prior to issuance of final occupancy.
9. PROTECTED TREES
The applicant understands that the 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.
10. CONSULTATION WITH OTHER DEPARTMENTS
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.
11. 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
Resolution No.
Page 7
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.
12. 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.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 21s' day of June, 2023, by the following vote:
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
Resolution No.
Page 8
SIGNED:
Hung Wei, Mayor
Date
City of Cupertino
ATTEST:
Date
Kirsten S uarcia, City Clerk