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TR-2023-044 - Action Letter (extended Appeals due to Holiday)CITY OF IM CUPERTINO COMMUNITY DEVELOPMENT DEPARTMENT PLANNING DIVISION CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333 CUPERTINO.ORG SENT VIA ELECTRONIC MAIL December 14, 2023 Veena Thammavongsa 6412 S 900 E #200 Murray, UT 84117 veena@aplustree.com SUBJECT: TREE REMOVAL PERMIT ACTION LETTER - Application TR-2023-044 This letter confirms the decision of the Director of Community Development, given on December 14, 2023, approving a Tree Removal Permit to allow the removal and replacement of one (1) 11-inch Callery Pear (Pyrus calleryana) development tree and replacement located at 20677 Gardenside Circle. Staff has made the necessary finding that the tree can cause potential damage to existing or proposed essential structures and infrastructure and the applicant has demonstrated to the satisfaction of the approval authority that there are no reasonable alternatives to preserve the tree. The finding is necessary to grant the Tree Removal Permit in accordance with Cupertino Municipal Code (CMC) Section 14.18.180 (A)(1). The application is approved with the following conditions: 1. APPROVED PROJECT This approval for tree removal is based on the arborist report prepared by A Plus Tree, LLC (Evan Fuller, ISA Certified Arborist WE-12508A) on June 20, 2023 consisting of seven pages, a tree removal site plan, except as modified by the following conditions. 2. ACCURACY OF THE 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. TREE REPLACEMENT There is a replacement tree requirement of one (1) 24-inch box tree to be planted on the subject property within 30 days of tree removal. During planting of the 20677 Gardenside Circle TR-2023-044 Page 2 of 5 replacement tree, a native soil or soil of similar quality shall be used during installation of the new tree(s). Planting shall occur during late autumn into early winter. At the time of planting, the tree shall be heavily watered in order to saturate the root ball. Depending on the levels of rain in the subsequent winter, irrigation may not be necessary until the onset of spring. Should the winter following planting have below average rain fall, the newly planted trees shall be watered with approximately 5 gallons of water for every caliper inch on the tree, twice a month. From the onset of spring until the following winter, this shall be raised to 10 gallons of water for every caliper inch of the tree, twice a month. These irrigation requirements are for the first year following planting. If the property owner elects to not plant the required replacement tree(s) on site, then an in -lieu fee for the replacements tree(s) must be paid to the City within 30 days of tree removal. In the event the applicant is unable to plant the approved replacement trees, the applicant may propose alternative adequate tree replacements for trees proposed to be removed. The final number, location, size, and type of trees shall be reviewed and approved by the Director of Community Development, in consultation with the City's Consulting Arborist, prior to tree planting. The applicant shall provide the Department of Community Development adequate documentation, including but not limited to photographs, receipts or invoices, to verify that the replacement tree(s) have been planted or the in -lieu fee has been paid within 30 days of tree removal. 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 Bay area extends from February 1 through August 31. Preconstruction surveys (described below) 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 qualified ornithologist shall 20677 Gardenside Circle TR-2023-044 Page 3 of 5 be required to conduct surveys 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 determined by the qualified ornithologist, taking into account the species of birds nesting, their tolerance for disturbance and proximity to existing development. In general, exclusion zones shall be a minimum of 300 feet for raptors and 75 feet for passerines and other birds. The active nest within an exclusion zone shall be monitored on a weekly basis throughout the nesting season to identify signs of disturbance and confirm nesting status. The radius of an exclusion zone may be increased by the qualified biologist, if project activities are determined to be adversely affecting the nesting birds. 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 20677 Gardenside Circle TR-2023-044 Page 4 of 5 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. 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. Also, please note that an appeal of this decision can be made within fourteen (14) calendar days from the date of this letter (Extra days added due to Holiday closure of City Hall to Thursday, January 4, 2024 at 5:00 PM). Do not remove the tree until the end of the appeal period. If an appeal is filed, you will be notified of a public hearing date, which will be scheduled before the Planning Commission. Sincerely, 20677 Gardenside Circle TR-2023-044 /s/ Emi Sugiyama Associate Planner (408) 777-3205 emis@cul2ertino.org Enclosure: Arborist Report & Site Plan Page 5 of 5