TR-2023-050 Action Letter (dead) Comm . F lopme t De+2U,161 jeLG4ITY DEVELOPMENT DEPARTMENT
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�CUPERTIN4 ROVE
CITY HALL
Case # 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
LW—MMM15r-jNumbers 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
Veena Thammavongsa
20450 Steven's Creek
Cupertino, CA 95014
SUBJECT: TREE REMOVAL PERMIT ACTION LETTER-Application TR-2023-050
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
16-inch-diameter Black Acacia (Acacia melanoxylon) protected Development tree in the
parking lot at the southeast corner of Steven's Creek and Macadam Lane that serves the
Cupertino City Center Commercial Complex at 20450 Steven's Creek.
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 PROTECT
This approval is based on the certified arborist report prepared by Evan Fuller (ISA
Certified Arborist, #WE-12508A, TRAQ Tree Risk Assessment Qualified), dated June
16, 2023, consisting of 8 pages that include an evaluation of the health of the tree,
photos of the declining tree over time, and a replacement tree plan.
Mr. Fuller's arborist report was peer reviewed in a separate report prepared by the
City's consultant arborist,Leonardo Tuchman with Bartlett Consultants(ISA Certified
Arborist WE-12453A, ASCA Registered Consulting Arborist #771, ISA Tree Risk
Assessment Qualified, California DPR QAL #146294). The peer review report
evaluated the health of the tree,the appropriateness of the proposed replacement tree
species and locations and whether the proposed tree removal was consistent with the
City's Municipal Code findings for approval. The City's consultant arborist agrees
with the applicant's request to remove the tree as the tree is in poor condition with die
back throughout the canopy and bark peeling from the branches and a leader torn
20450 Steven's Creek Page 2 of 5
CommnJ �e i�lozgpent Department
Planning Division — Cupertino
CUPERTIn0 frorrA€1RR( 6JDhe tree. The City's consultant arborist found that the condition of the
Case # t-fR42@ffl-$6(Vupertino Municipal Code's definition of a dead tree defined in CMC
tree that is not living whatsoever as objectively verifiable,or a tree that has
declined to such an extent that its demise is imminent with no opportunity for recovery or
Approval Body: Director/ppaSreasonable viable level as determined by the Director of Community Development."
Approval Date 1D15/23
Signature QathA- r*UTKAr@Y OF THE PROJECT PLANS
ThecWPP tfhVproperty 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
The required replacement trees are seven (7) new 24-inch-box Brisbane Box
(Lophostemon confertus) planted as shown on the replacement tree plan planted in the
parking lot planters and two (2) new Aristocrat Callery Pear (Pyrus calleryana
'Aristocrat') along the northern edge of the parking lot as replacement trees for the
removed tree and 4 other hazardous trees that fell or were leaning and were removed
during the March 2023 storms. All replacement trees shall be planted in the locations
shown on the approved Tree Replacement Plan.
All replacement trees must be planted within 30 days of the removal of the
dead/hazardous trees. 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 trees have been planted. Please
email photos of the replanted trees to catherinet0cupertino.gov and I am then able
to close the permit.
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
20450 Steven's Creek Page 3 of 5
Comm
niJ ev°QQ�,lozgpent Department
ec er 15
Planning Division — Cupertino
C u P E RT i n o A P P R CEiDities. Preconstruction surveys shall be conducted no more than 14
Case # TR-2023 prior to the start of tree removal, pruning or construction.
Application Nur&gWnstruction surveys shall be repeated at 14-day intervals until
construction has been initiated in the area after which surveys can be
Approval Body: Director/StApped. During this survey, the ornithologist shall inspect all trees and
Approval Date 12/15/23 other possible nesting habitats in and immediately adjacent to the
Signature Catherine TaronLconstruction areas for nests.
Casec an
Tfhe 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.
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
20450 Steven's Creek Page 4 of 5
CommnJ �e i�lozgpent Department
Planning Division — Cupertino
CUPERTINQ or oAP RR-OVif W the indemnified parties and the applicant related to any Ordinance,
Case # 1T¢ p200a M()ction approving the project, the related entitlements, environmental
A ils%Mn doaakmwnts, finding or determinations, or any other permit or approval
authorized fcq�r the project. The indemnification shall include but not be limited to
Approva I Body: Di ector/ ait ,
c ama es, tees, and costs awarded against the City, if any, and cost of suit, attorneys
Approval Date f1 k- 5K liabilities,stl}ems ceUts,ties, and expenses incurred in connection with such
Signature Cathyr6wEd whether incurred by the Applicant, the City, or the parties initiating or
brirfgMg'YV f 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.
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,
20450 Steven's Creek Page 5 of 5
Comm n ym r 1S, pent Department
Planning Division — Cupertino
CUPERTINO CatMf FkGVEJAe
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Approva I Body: Di408{or aff
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Approva I Date
Signature Cathbriciolawestamped approved arborist report
Case Manager