CC Resolution No. 24-014 approving the Tree Removal Permit (TR-2023-008)
RESOLUTION NO. 24-014
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A TREE REMOVAL PERMIT TO REMOVE, AND REPLACE TEN (10)
DEVELOPMENT TREES TO ACCOMMODATE
A PROPOSED SEVEN (7) UNIT TOWNHOME DEVELOPMENT
LOCATED AT 10046 BIANCHI WAY (APN: 359-07-021)
SECTION I: PROJECT DESCRIPTION
Application No.: TR-2023-008
Applicant: Leon Hu of Top Mission Realty & Investment, Inc.
Location: 10046 Bianchi Way
APN: 359-07-021)
SECTION II: FINDINGS FOR TREE REMOVAL:
WHEREAS, the City of Cupertino received an application for a Tree Removal Permit
(Application No. TR-2023-008) as described in Section I of this resolution; and
WHEREAS, pursuant to the provisions of the California Environmental Quality Act of
1970 (Public Resources Code Section 21000 et seq.) ("CEQA") and the State CEQA
Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.) ("CEQA
Guidelines"), the project has been determined exempt under Class 32 CEQA Exemption
pursuant to CEQA Guideline Sections 15332 (Infill Development Projects); and
WHEREAS, on December 12, 2023, the Planning Commission recommended on a 3-1-1
vote (Madhdhipatla: No. Mistry: Absent) that the City Council approve the Development
Permit (DP-2023-001) in substantially similar form to the Resolution presented
(Resolution No.20), approve the Architectural and Site Approval Permit (ASA-2023-002)
in substantially similar form to the Resolution presented(Resolution No.21), approve the
Tentative Final Map (TM-2023-001) in substantially similar form the Resolution presented
(Resolution No.22) and approve the Tree Removal Permit (TR-2023-008) in substantially
similar form to the Resolution presented (Resolution No.23) except as may be further
amended by conditions in this resolution; and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and on January 17th, 2024,
the City Council held a public hearing to consider the Tree Removal Permit; and
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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 Tree Removal Permit.
WHEREAS, the City Council finds:
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 order to accommodate for the new residential development buildings, walkways and
emergency and vehicle access onto the site, the existing trees cannot be preserved in
their locations. The applicant proposes replacement trees throughout the site and
proposes to locate the replacements where tree coverage is needed. Due to the physical
restraints of the site the applicant cannot accommodate all 18 24”-box replacement
trees on site. Therefore, the applicant has proposed to replant 10 24”-box trees on site
and pay an in-lieu tree replacement fee per CMC 14.18.160(B)(3) of $27,450.00 for the
remaining 8 trees not planted on site. Additionally, the applicant has proposed 3 street
trees in the public right-of-way.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and subject to the conditions which are enumerated in this
Resolution beginning on PAGE 2 thereof, and those contained in all other Resolutions
approved for this Project.
The application for a Tree Removal Permit, Application No. TR-2023-008, 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-2023-008 as set forth in the Minutes of the City Council Special
Meeting of January 17th, 2024 Meeting, and are incorporated by reference as though fully
set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
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Page 3
1. APPROVED EXHIBITS
Approval is based on the plan set entitled “Leon Townhouse, 10046 Bianchi Way
Cupertino, CA 95014” consisting of thirty-five sheets labeled A0.0 – A10.0, L1-L1
and C3.1-C7.1 drawn by Tectonic Builders Corp., except as may be amended by
conditions in this resolution.
2. ACCURACY OF PROJECT 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. DP-2022-001, ASA-2023-002, and
TM-2023-001 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 REPLACEMENT & IN-LIEU TREE REPLACEMENT FEE
Seven (7) trees (#1, 5, 6, 7, 8, 9 & 10) identified in the Arborist Report prepared by
Davey Resource Group July 2023 are approved for removal with trunk diameter
breast height (DBH) ranging from 14” to 38.5”. Ten (10) 24-inch box replacement trees
shall be planted on site – five (5) Jerusalem Thorn and five (5) Blue Oak. In addition,
an in-lieu tree replacement fee for the remaining 8 trees that cannot be accommodated
on site and in addition valuation for the removal of Tree #9 (38.5-inch Coast Live Oak,
in good condition) has been calculated using the guidelines outlined in the 10th Edition
Guide for Plant Appraisal by the Council of Tree and Landscape Appraisers. The
property owner shall pay an ISA calculated value in the amount of $3,200 ($400/tree -
8 trees) and $24,250 per the valuation for the removal of Tree #9, as required by
Municipal Code 14.18.160.B.3; for a combined in-lieu tree replacement fee of $27,450.
6. TREE RETENTION
Tree #11 (14” Monterey Cypress) located on the property directly to the south of the
subject property shall require tree protection as well as a monitoring schedule during
construction. A monitoring schedule prepared by an ISA Certified Arborist will be
provided to planning prior to building permit issuance.
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Monitoring of the tree protection specifications by an ISA Certified Arborist is
required at monthly intervals. The applicant shall retain an ISA certified arborist to
prepare Monitoring letters to be provided to the project planner or Planning
Department via planning@cupertino.gov confirming the results of the project
monitoring.
a. Arborist monitoring shall be performed when removal of the existing
driveway occurs, as well as during excavation and compaction for the new
driveway.
b. All excavation within the CRZ must be hand-dug or performed by air spade
with the project arborist on site, and the arborist must approve the pruning of
roots over 2 inches. Any roots uncovered or pruned must be wrapped in damp
burlap that will be kept moist until the roots are able to be covered over with
soil.
c. Tree #11 Tree Protection Zone (TPZ) fencing should be installed prior to the
start of any demolition or construction and must remain in place for the
entirety of the project. Fencing shall encompass as much of the TPZ that
overhangs the subject property. If the neighbors agree, it is recommended that
TPZ fencing fully encompass the tree and extend onto the property where the
tree is located. TPZ fencing should be 6 feet in height and constructed of chain
link fencing. Signs must be posted stating: “TREE PROTECTION FENCE - DO
NOT MOVE OR REMOVE WITHOUT APPROVAL FROM CITY/PROJECT
ARBORIST. NO STORING OF MATERIALS OR MACHINERY.” The fence
may not be moved without authorization from the ISA certified project
arborist.
7. ARBORIST REVIEW
Prior to building permit issuance, the number, location and species of replacement
trees, if modified, 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 planning 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 applicant’s 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 an ISA certified arborist hired by the project applicant for the trees
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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
review proposed plans, at applicant cost, before any trenching or root cutting
beneath the dripline of the tree.
• 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 applicant arborist shall inspect the trees to be retained and shall provide
reviews prior to issuance of demolition, grading or building permits.
d. A report as prepared by the applicant arborist 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,
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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.
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. 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
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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.
PASSED AND ADOPTED at a special meeting of the City Council of the City of
Cupertino this 17th day of January 2024, by the following vote:
Members of the City Council
AYES: Mohan, Fruen, Moore, Wei
NOES: None
ABSENT: None
ABSTAIN: Chao
SIGNED:
________
Sheila Mohan, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
1/29/2024
1/29/2024