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TR-2023-058 Action Letter (dead) Comm . F lopme t De+2U,161 jeLG4ITY DEVELOPMENT DEPARTMENT PIE M�3-05 sion - upe?FANNING DIVISION �CUPERTIN4 ROVE CITY HALL Case # 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 LM—MMMINM Numbers TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333 CUPERTINO CUPERTINO.ORG Approval Body: Director/ Staff Approva I Date 12/15/23 Signature VAI 'J&ZD23 Case Manager Wendell Kerr 7954 Sunderland Drive Cupertino, CA 95014 SUBJECT: TREE REMOVAL PERMIT ACTION LETTER-Application TR-2023-058 This letter confirms the decision of the Director of Community Development, given on December 15,2023 approving a Tree Removal Permit to allow the removal of one(1)dead 21-inch-diameter Coast Live Oak (Quercus agrifolia) protected specimen tree in the front yard of a single-family residence located at 7954 Sunderland Drive in Cupertino. Staff has made the finding that the protected tree is dead based on the definition provided in CMC Section 14.18.020 of the City's Protected Tree Ordinance.The finding is necessary to grant the tree removal permit in accordance with Cupertino Municipal Code CMC Section 14.18.150 (B)(2). The application is approved with the following conditions: 1. APPROVED PROJECT This approval is based on the certified arborist report prepared by Ann Northrup(ISA Certified Arborist, #WE-1613A), dated December 3, 2023 with an addendum added dated December 10,2023 consisting of 4 pages that include an evaluation of the health of the tree,a photo of the dead tree, and an evaluation of the lack of planting space on the property for replacement trees. 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. 7954 Sunderland Court Page 2 of 4 Comm niJ ev8Q�,lozgpent Department ec er 15 Planning Division — Cupertino cuPERTINo 3. TRFAR&OWAMMENT Case # Tom .$*5bas chosen to pay the in-lieu replacement tree fee instead of planting la, omam bEtd( es. The City uses the cost of a coast live oak tree to calculate the in-lieu fee. Per the City's consultant arborist, the wholesale cost of a 24-inch-box coast live Approval Body: Dky o /2 eta& oa is e required replacement is two 24-inch-box trees, which would be $225 Approval Date 12a5�33d lay 2 dhi clg ;s T_- And the cost of installation is determined by the Signature CathVbathT�nCalifornia Director of Industrial Relations Wage Determination which is $15. VWM1 it multiplied by 8 hours (4 hours to install each 24-inch-box tree which are work hours confirmed by the City's arborist)which equals$126.72.Then$450 plus $126.72 equals$576.72 which is the total in-lieu fee that was paid. 4. 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 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 7954 Sunderland Court Page 3 of 4 Comm niJ ev8Q�,lozgpent Department ec er 15 Planning Division — Cupertino C u P E RT i n o A P P R aV IDrds nesting, their tolerance for disturbance and proximity to existing Case # TR-2023-(0581opment. In general, exclusion zones shall be a minimum of 300 feet Application Nu r(r)aptors and 75 feet for passerines and other birds.The active nest within an exclusion zone shall be monitored on a weekly basis throughout the Approval Body: Director/Stting season to identify signs of disturbance and confirm nesting status. Approval Date 12/15/23 The radius of an exclusion zone maybe increased by the qualified biologist, Signature Catherine Taron4f project activities are determined to be adversely affecting the nesting case Mands. 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. 5. 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 7954 Sunderland Court Page 4 of 4 Comm niJ ev8Q�,lozgpent Department ec er 15 Planning Division — Cupertino CUPERTINO the MM2.19WEQi parties. The Applicant shall cooperate with the City to enter a Case # IT$RP$02a4O6i8 Agreement to govern any such reimbursement. Application Number(s) The Applicant shall agree to (without limitation) reimburse the City for all costs Approval Body: DipRt& 64�AaMditional investigation or study of, or for supplementing, redrafting, Approval Date or amending, any document (such as an Environmental Impact Report, Signature Cat*ggatjy @claration, specific plan, or general plan amendment) if made necessary by proceediuSsEehallenging 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. 6. 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. CMC 14.18.150(B)(2) Exemptions, permits the removal of dead trees before the approval is granted provided that a retroactive tree removal permit is submitted within 5 days. 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 Enclosure: arborist report