TR-2023-049 - Approval Action LetterComm . F lopmevt De(EUIMM41TY DEVELOPMENT DEPARTMENT
PI11499F
sion — upe?FANNING DIVISION
�CUPERTIN4 ROVE
CITY HALL
Case # 23-049 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 10/25/23
Signature
Case Manager
Cary Queen
22830 San Juan Road
Cupertino, CA 95014
SUBJECT: TREE REMOVAL PERMIT ACTION LETTER — Application TR-2023-049
This letter confirms the decision of the Director of Community Development, given on
October 25, 2023 approving the Tree Removal Permit to allow the removal and
replacement of one (1) protected 23-inch DBH, specimen Quercus agrifolia (Coast Live Oak)
at a single-family residential property located at 22830 San Juan Road.
Staff has made the necessary findings that the 23-inch Coast Live Oak proposed for
removal is irreversibly diseased, in danger of falling, and can cause potential damage to
existing or proposed essential structures and cannot be controlled or remedied through
reasonable relocation or modification of the structure. The finding is necessary to grant
the Tree Removal Permit in accordance with Cupertino Municipal Code (CMC) Section
14.18.180 (A)(1). Staff notes that the foliage of the oak is sparse and the applicant's certified
arborist submitted a letter recommending removal of the tree stating that its "health is in
serious decline and eventually will fail."
The application is approved with the following conditions:
APPLICATION AND SUPPORTING DOCUMENTATION
This approval for tree removal is based on the application, photograph and arborist
letter submitted by John H. McCarthy, certified arborist (WE-0956A), and the
owner/operator of Curry Bros Tree Care.
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.
22830 San Juan Road Page 2 of 4
Community evelopment Department
P I On n,E[>iViiZn'�`d�i no
CUPERTINQ TheAEprpkOJEUplacement trees are two 24-inch-box Quercus agrifolia (Coast Live Oak)
Case # ts16-2�ed4eg shown on the replacement tree plan. The replacement trees must be
Wjpaj.a —a—&
"a 30 days o e removal of the oak tree. The applicant shall provide
the Department of Community Development adequate documentation, including but
Approval Body: Di{gicJRfiAAk#photographs, receipts, or invoices, to verify that the replacement tree
Approval Date 1MWWW121anted.
Signature Catherine Tarone
4. PROTSECATAU&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 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 pre -construction survey shall
be conducted 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 construction has been initiated
in the area after which surveys can be stopped. During this survey, the
ornithologist shall inspect all trees and other possible nesting habitats in
and immediately adjacent to the construction areas for nests.
c. If the survey does not identify any nesting birds that would be affected by
construction activities, no further mitigation is required. If an active nest
containing viable eggs or young birds is found sufficiently close to work
areas to be disturbed by these activities, their locations shall be
documented, 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
22830 San Juan Road Page 3 of 4
Community evelopment Department
Planning D i v i s i o4cte@... p�rcI i hp the qualified ornithologist, taking into account the species
C u P E RT i n o A P P R OV�&ds nesting, their tolerance for disturbance and proximity to existing
Case # TR-2023 UEglopment. In general, exclusion zones shall be a minimum of 300 feet
be Application Numr(s t for passerines and other birds. The active nest within
an exclusion zone shall be monitored on a weekly basis throughout the
Approval Body: Director / Stlafiting season to identify signs of disturbance and confirm nesting status.
Approval Date 10/25/23 The radius of an exclusion zone maybe increased by the qualified biologist,
Signature Catherine Taronef project activities are determined to be adversely affecting the nesting
Case Man s. 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
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.
22830 San Juan Road Page 4 of 4
Communi y evelopment Department
P I a n nTHg Dia\ipidixrr+t Csbio rtkffoe to (without limitation) reimburse the City for all costs
CUPERTINO incuAVq#R,*0itional investigation or study of, or for supplementing, redrafting,
Case # r�s2�r0 rjending, any document (such as an Environmental Impact Report,
4pAtrygogglAption, specs is p an, or general plan amendment) if made necessary by
proceedings challenging the project approvals and related environmental review, if
Approval Body: DiWAQP'i§kffiesires to continue to pursue the project.
Approva I Date 10/25/23
Signature Cathjp&Fp&Sant shall agree that the City shall have no liability to the Applicant for
us#jV,�ApJgNruption, 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.
Please note that an appeal of this decision may be made within 14 calendar days
from the date of this letter. If an appeal is filed, you will be notified of a public
hearing, which will be scheduled before the Planning Commission.
Sincerely,
Catherine Tarone
Permit Technician
Planning Division
(408) 777-3297
catherinet@cupertino.gov