DIR-2024-002 Action LetterCITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014 (408) 777-3308
To:Mayor and City Council Members
Chairperson and Planning Commissioners
From: Benjamin Fu, Director of Community Developmen
Prepared by: Danielle Condit, Associate Planner
Date:April 4, 2024
Subject:Director's Minor Modification (DIR-2024-002) to review and approve the
proposed endosure of two second floor balconies into living space located
at 22600 Alpine Drive, APN 342 48 037.
Chapter 19.164 of the Cupertino Municipal Code allows for administrative
approval of minor changes in a project. The Director reports his decision to the
City Council and Planning Commission in time to allow an appeal of the decision
within 14-calendar days.
BACKGROUND The subject
property is located at 22600 Alpine
Drive in the Oak Valley Neighbor,
south of Alpine Drive and East of
Heney Creek Place (Figure 1). The
property is zoned P (Rl O-2 zoning
district with Very Low Density (1/2
Acre Slope Density Formula)
Residential Hillside density.
Development is subject to the
development standards outlined in
City of Cupertino's Municipal Code
(]lCity Code") Chapter 19.28 for Rl
zone.
DISCUSSION The property owner
is requesting to convert approximately 142-square-feet of balcony area to interior living
space at an existing 3,767-square-foot residence with the following scope of work:
I
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• Covert a 61-square-foot balcony at bedroom 2 facing Alpine Drive into
conditioned space; and
• Covert 82-square-foot balcony at master bathroom facing Henery Creek Place into
unconditioned sunroom.
The gross lot size of the subject property is 21,161 square feet. There are various
easements on the property, including a Tower Line easement, Landscape easement and
Public Utility Easement. None of the easement types described above reduce the lot area
square footage. The proposed additions will increase the Floor Area Ratio (FAR) of the
subject property from 17.8% to 18.4%. The maximum allowable FAR for the property is
45%, following the intent of Rl single-family residential development standards.
The proposed addition will be integrated into the existing roofline and match in terms of
design and materials. The addition is not anticipated to create any privacy impacts, as
both balconies are street facing with no existing views into adjacent private yard areas.
The proposed scope of work is consistent with the City’s Municipal Code and pertinent
development standards. The modification to the design is, therefore, considered minor in
nature.
ACTION
The Director of Community Development deems the project categorically exempt from
environmental review under CEQA Guidelines, Article 19, Section 15301: Existing
Facilities and further deems the modification minor and approves the project with the
following conditions of approval:
1. APPROVED EXHIBITS
The approval is based on a plan set entitled “Lan Tan 2600 Alpine Drive, Cupertino,
CA 95014”, consisting of 16 sheets labeled “A1 through A6, BMP, S1.1, S2.1, S2.2, S2.3,
S2.4, S3.1 and T24.1 – T24.3”, except as may be amended by conditions in this
resolution.
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. ANNOTATION OF THE CONDITIONS OF APPROVAL
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The conditions of approval set forth shall be incorporated into and annotated on the
building plans.
4. PREVIOUS CONDITIONS OF APPROVAL
All prior conditions of approval, in accordance with R-2021-017 shall remain in effect
unless superseded by or in conflict with subsequent conditions of approval and as
specifically amended by this Director’s Minor Modification approval.
5. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible for consulting 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.
6. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS
a) All grading activities shall be limited to the dry season (April 15 to October 1),
unless permitted otherwise by the Director of Public works.
b) Construction hours and noise limits shall be compliant with all requirements of
Chapter 10.48 of the Cupertino Municipal Code.
c) Grading, street construction, underground utility and demolition hours for work
done more than 750 feet away from residential areas shall be limited to Monday
through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to 6 p.m.
Grading, street construction, demolition or underground utility work within 750
feet of residential areas shall not occur on Saturdays, Sundays, holidays, and
during the nighttime period as defined in Section 10.48.053(b) of the Municipal
Code.
d) Construction activities shall be limited to Monday through Friday, 7 a.m. to 8 p.m.
and Saturday and Sunday, 9 a.m. to 6 p.m. Construction activities are not allowed
on holidays as defined in Chapter 10.48 of the Municipal Code. Night time
construction is allowed if compliant with nighttime standards of Section 10.48 of
the Cupertino Municipal Code.
e) Rules and regulations pertaining to all construction activities and limitations
identified in this permit, along with the name and telephone number of an
applicant appointed disturbance coordinator, shall be posted in a prominent
location at the entrance to the job site.
f) The applicant shall be responsible for educating all contractors and subcontractors
of said construction restrictions.
The applicant shall comply with the above grading and construction hours and noise
limit requirements unless otherwise indicated.
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7. FUGITIVE DUST CONTROL
Prior to issuance of the any demolition, grading, or building permit, include on all
permit plans, the full text of each of the Bay Area Air Quality Management
District’s Basic Control Measures from the latest version of BAAQMD’s CEQA Air
Quality Guidelines, as subsequently revised, supplemented, or replaced, to
control fugitive dust (i.e., particulate matter PM2.5 and PM10) during demolition,
ground disturbing activities and/or construction.
8. VOLATILE ORGANIC COMPOUND EMISSIONS FROM PAINT
Prior to issuance of the first building permit, the Applicant shall include a note on
all plans where paint specifications or other design specifications are listed, that
the project design will incorporate only low-VOC paint (i.e., 50 grams per liter
[g/L] or less) for interior and exterior wall architectural coatings.
9. AVOID NESTING BIRDS DURING CONSTRUCTION
Prior to issuance of the any demolition, grading and building permit, indicate the
following on all construction plans:
a. Demolition, construction, ground-disturbing, and tree removal/pruning
activities shall be scheduled to be completed prior to nesting season (February 1
through August 31), if feasible.
b. If demolition, construction, ground-disturbing, or tree removal/pruning
activities occur during the nesting season (February 1 and August 31),
preconstruction surveys shall be conducted as follows:
i. No more than 7 days prior to the start of demolition, construction, ground-
disturbing, or tree removal/pruning activities, in order to identify any active
nests with eggs or young birds on the site and surrounding area within 100 feet
of construction or tree removal activities.
ii. Preconstruction surveys shall be repeated at 14-day intervals until
demolition, construction, ground-disturbing, or tree removal/pruning
activities have been initiated in the area, after which surveys can be stopped.
As part of the preconstruction survey(s), the surveyor shall inspect all trees and
other possible nesting habitats in, and immediately adjacent to, the
construction areas for active nests, while ensuring that they do not disturb the
nests as follows:
1) For projects that require the demolition or construction one single-
family residence, ground disturbing activities affecting areas of up to 500
square feet, or the removal of up to three trees, the property owner or a
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tree removal contractor, if necessary, is permitted to conduct the
preconstruction surveys to identify if there are any active nests. If any
active nests with eggs or young birds are identified, the project applicant
shall retain a qualified ornithologist or biologist to identify protective
measures.
2) For any other demolition, construction and ground disturbing activity
or the removal of four or more trees, a qualified ornithologist or biologist
shall be retained by the project applicant to conduct the preconstruction
surveys.
iii. If the preconstruction survey does not identify any active nests with eggs or
young birds that would be affected by demolition, construction, ground-
disturbing or tree removal/pruning activities, no further mitigating action is
required. If an active nest containing eggs or young birds is found sufficiently
close to work areas to be disturbed by these activities, their locations shall be
documented, and the qualified ornithologist or biologist shall identify protective
measures to be implemented under their direction until the nests no longer
contain eggs or young birds.
iv. Protective measures may include, but are not limited to, 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 or biologist, 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 ornithologist or biologist, if
project activities are determined to be adversely affecting the nesting birds.
Exclusion zones may be reduced by the qualified ornithologist or 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.
v. 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 prepared by the qualified ornithologist or biologist and
submitted to the Director of Community Development or his or her designee,
through the appropriate permit review process (e.g., demolition, construction,
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tree removal, etc.), and be completed to the satisfaction of the Community
Development Director prior to the start of demolition, construction, ground-
disturbing, or tree removal/pruning activities.
10. ARCHAEOLOGICAL RESOURCES AND TRIBAL CULTURAL RESOURCES
Prior to the issuance of any demolition, grading or building permit involving soil
disturbance, the project applicant shall provide written verification, including the
materials provided to contractors and construction crews, to the City confirming
that contractors and construction crews have been notified of basic archaeological
site indicators, the potential for discovery of archaeological resources, laws
pertaining to these resources, and procedures for protecting these resources as
follows:
a. Basic archaeological site indicators that may include, but are not limited to,
darker than surrounding soils of a friable nature; evidence of fires (ash, charcoal,
fire affected rock or earth); concentrations of stone, bone, or shellfish; artifacts of
stone, bone, or shellfish; evidence of living surfaces (e.g., floors); and burials, either
human or animal.
b. The potential for undiscovered archaeological resources or tribal cultural
resources on site.
c. The laws protecting these resources and associated penalties, including, but not
limited to, the Native American Graves Protection and Repatriation Act of 1990,
Public Resources Code Section 5097, and California Health and Safety Code
Section 7050 and Section 7052.
d. The protection procedures to follow should construction crews discover cultural
resources during project-related earthwork, include the following:
i. All soil disturbing work within 25 feet of the find shall cease.
ii. The project applicant shall retain a qualified archaeologist to provide and
implement a plan for survey, subsurface investigation, as needed, to define the
deposit, and assessment of the remainder of the site within the project area to
determine whether the resource is significant and would be affected by the
project.
iii. Any potential archaeological or tribal cultural resources found during
construction activities shall be recorded on appropriate California Department
of Parks and Recreation forms by a qualified archaeologist. If the resource is a
tribal cultural resource, the consulting archaeologist shall consult with the
appropriate tribe, as determined by the Native American Heritage
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Commission, to evaluate the significance of the resource and to recommend
appropriate and feasible avoidance, testing, preservation or mitigation
measures, in light of factors such as the significance of the find, proposed
project design, costs, and other considerations. The archeologist shall perform
this evaluation in consultation with the tribe.
11. HUMAN REMAINS AND NATIVE AMERICAN BURIALS
Prior to issuance of the any demolition, grading and building permits that involve
soil disturbance, include on plans a note that, during project construction, the
project applicant shall comply with California Health and Safety Code Section
7050.5 and California Public Resources Code Section 5097.98.
a. In the event of discovering human remains during construction activities,
there shall be no further excavation or disturbance of the site within a 100-foot
radius of the remains, or any nearby area reasonably suspected to overlie
adjacent remains.
b. The Santa Clara County Coroner shall be notified immediately and shall
make a determination as to whether the remains are Native American.
c. If the Santa Clara County Coroner determines that the remains are not
subject to his authority, he shall notify the Native American Heritage
Commission (NAHC) within 24 hours.
d. The NAHC shall attempt to identify descendants (Most Likely Descendant)
of the deceased Native American.
e. The Most Likely Descendant has 48 hours following access to the project site
to make recommendations or preferences regarding the disposition of the
remains. If the Most Likely Descendant does not make recommendations
within 48 hours after being allowed access to the project site, the owner shall,
with appropriate dignity, reinter the remains in an area of the property secure
from further disturbance and provide documentation about this determination
and the location of the remains to the NAHC and the City of Cupertino.
Alternatively, if the owner does not accept the Most Likely Descendant’s
recommendations, the owner or the descendent may request mediation by the
NAHC. Construction shall halt until the mediation has concluded.
12. STORMWATER RUNOFF CONTAMINATION
Prior to issuance of any grading or building permits, the project applicant shall
demonstrate compliance with Chapter 9.18 (Stormwater Pollution Prevention and
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Watershed Protection) of the Cupertino Municipal Code, to the satisfaction of the
City Engineer or his or her designee. All identified stormwater runoff control
measures shall be included in the applicable construction documents.
13. NOISE AND VIBRATION NOTICE
At least 10 days prior to the start of any demolition, ground disturbing, or
construction activities, the project applicant/contractor shall send notices of the
planned activity by first class mail as follows:
a. For projects on sites that are more than 0.5 acres or four or more residential
units the notices shall be sent to off-site businesses and residents within 500
feet of the project site;
b. For projects on sites between 0.25 to 0.5 acres, or two or three residential
units (not including Accessory Dwelling Units) notices shall be sent to off-site
businesses and residents within 250 feet of the project site; or
c. For projects on sites less than 0.25 acres or one residential unit, the notices
shall be sent to off-site businesses and residents within 100 feet of the project
site.
The notification shall include a brief description of the project, the activities that
would occur, the hours when activity would occur, and the construction period’s
overall duration. The notification should include the telephone numbers of the
contractor’s authorized representatives that are assigned to respond in the event
of a noise or vibration complaint. The City will provide mailing addresses for the
Applicant’s use. The project applicant shall provide the City with evidence of
mailing of the notice, upon request. If pile driving, see additional noticing
requirements below.
14. NOISE AND VIBRATION SIGNAGE
At least 10 days prior to the start of construction activities, the project
applicant/contractor shall ensure that a sign shall be posted at the entrance(s) to
the job site, clearly visible to the public, which includes permitted construction
days and hours, as well as the telephone numbers of the City’s and contractor’s
authorized representatives that are assigned to respond in the event of a noise or
vibration complaint. If the authorized contractor’s representative receives a
complaint, they shall investigate, take appropriate corrective action, and report the
complaint and the action taken to the City within three business days of receiving
the complaint.
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15. NOISE DURING CONSTRUCTION
Prior to issuance of any demolition, grading or building permit, include on plans
a note that, during project construction, the project applicant shall incorporate the
following measures to reduce noise during construction and demolition activity:
a. The project applicant and contractors shall prepare and submit a
Construction Noise Control Plan to the City’s Planning Department for review
and approval prior to issuance of the first permit. The Construction Noise Plan
shall demonstrate compliance with daytime and nighttime decibel limits
pursuant to Chapter 10.48 (Community Noise Control) of Cupertino Municipal
Code. The details of the Construction Noise Control Plan shall be included in
the applicable construction documents and implemented by the on-site
Construction Manager. Noise reduction measures selected and implemented
shall be based on the type of construction equipment used on the site, distance
of construction activities from sensitive receptor(s), site terrain, and other
features on and surrounding the site (e.g., trees, built environment) and may
include, but not be limited to, temporary construction noise attenuation walls,
high quality mufflers. During the entire active construction period, the
Construction Noise Control Plan shall demonstrate that compliance with the
specified noise control requirements for construction equipment and tools will
reduce construction noise in compliance with the City’s daytime and nighttime
decibel limits.
b. Select haul routes that avoid the greatest amount of sensitive use areas and
submit to the City of Cupertino Public Works Department for approval prior
to the start of the construction phase.
c. Signs will be posted at the job site entrance(s), within the on-site construction
zones, and along queueing lanes (if any) to reinforce the prohibition of
unnecessary engine idling. All other equipment will be turned off if not in use
for more than 5 minutes.
d. During the entire active construction period and to the extent feasible, the
use of noise producing signals, including horns, whistles, alarms, and bells will
be for safety warning purposes only. The construction manager will use smart
back-up alarms, which automatically adjust the alarm level based on the
background noise level or switch off back-up alarms and replace with human
spotters in compliance with all safety requirements and law.
16. PALEONTOLOGICAL RESOURCES
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Prior to issuance of the any demolition, grading or building permit, include on
plans a note that, during project construction, the project applicant shall
implement the following measures:
a. If paleontological resources are encountered during ground disturbing
and/or other construction activities, all construction shall be temporarily halted
or redirected to allow a qualified paleontologist, which shall be retained by the
project applicant, to assess the find for significance and the Applicant shall
notify the City.
b. If paleontological resources are found to be significant, the paleontological
monitor shall determine appropriate actions, in coordination with a qualified
paleontologist, City staff, and property owner. Appropriate actions may
include, but are not limited to, a mitigation plan formulated pursuant to
guidelines developed by the Society of Vertebrate Paleontology and
implemented to appropriately protect the significance of the resource by
preservation, documentation, and/or removal, prior to recommencing
activities. Measures may include, but are not limited to, salvage of unearthed
fossil remains and/or traces (e.g., tracks, trails, burrows); screen washing to
recover small specimens; preparation of salvaged fossils to a point of being
ready for curation (e.g., removal of enclosing matrix, stabilization and repair
of specimens, and construction of reinforced support cradles); and
identification, cataloging, curation, and provision for repository storage of
prepared fossil specimens.
17. 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.
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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.
18.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.
This Director’s approval is effective until April 19, 2025.
Also, please note that an appeal of this decision can be made within fourteen (14)
calendar days from the date of this letter (Thursday, April 18, 2024, at 5:00 p.m.). If this
happens, you will be notified of a public hearing, which will be scheduled before the
Planning Commission. Appeal forms are available online at:
www.cupertino.org/planningforms.) The completed appeal form and filing fee must be
received by the deadline to appeal. Please contact the City at 408.777.3308 or
planning@cupertino.org for additional guidance and instructions on how to file.
Enclosures:
Attachment A: Approved Plans
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