Attachment 1 - Administrative Hearing Resolution No 121CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 121
OF THE ADMINISTRATIVE HEARING OFFICER OF THE CITY OF CUPERTINO
TO ALLOW THE SUBDIVISION OF AN EXISTING 32,316 SQ. FT. (0.74 ACRE)
RESIDENTIAL LOT INTO THREE RESIDENTIAL LOTS RANGING BETWEEN 9,699
SQ. FT. AND 11,928 SQ. FT. LOCATED AT 11226 BUBB ROAD (APN
SECTION I: PROTECT DESCRIPTION
Application No.: TM-2018-01
Applicant: Ray Chen (Lands of Qi)
Location: 11226 Bubb Road (APN 362-06-036)
SECTION II: FINDINGS
WHEREAS, the City of Cupertino received an application to subdivide an approximately
0.74-acre lot into three parcels of approximately 9,746 square feet, 9,699 square feet, and
11,928 square feet; and
WHEREAS, prior to the Administrative Hearing the Environmental Review Committee
heard the item on January 21,2021 during which it reviewed the Draft Mitigated Negative
Declaration, received public comments, and recommended adoption of a Mitigated
Negative Declaration on a 4-0-1 (Fung absent) vote; and
WHEREAS, on February 11, 2021 the Administrative Hearing Officer adopted the Initial
Study/Draft MND as the Final Initial Study/Mitigated Negative Declaration for the
project and adopted all the identified mitigation measures as conditions of approval for
the project; and
WHEREAS, the necessary notices have been given in accordance with the Procedural
Ordinance of the City of Cupertino, and the Administrative Hearing Officer has held one
or more Public Hearings on this matter; and
WHEREAS, the applicant has met the burden of proof required to support said
application; and
WHEREAS, the Administrative Hearing Officer finds:
Resolution No. 121 TM-2018-01 February 11,2021
Page-2-
a. That the proposed subdivision map is consistent with the City of Cupertino General
Plan.
The subject property is consistent with the General Plan since the property is permitted to have
up to three dwelling units based on its land use designation of Low Density(1-5 DU/Ac.). The
lot acreage will be consistent with the underlying single family residential standards proposed
with a minimum lot square footage of 7,500 square feet. Adjacent land uses include similar
developments. The proposed subdivision is compatible with the adjoining land uses and no
physical constraints are present that would conflict with anticipated land use development.
b. That the design and improvements of the proposed subdivision are consistent with
the General Plan.
The off-site improvements proposed with the project are identical to the existing improvements
adjacent to the subject site. These are consistent with the City's General Plan policies related
to pedestrian safety etc. by separating sidewalks from the street, minimizing curb-cuts and
requiring an urban canopy within the public right-of-way.
c. That the site is physically suitable for the type development contemplated under the
approved subdivision.
The proposed subdivision is compatible with the adjoining land uses and no physical
constraints are present that would conflict with anticipated land use development. There are
no topographical anomalies that differentiate this property from adjacent properties. The site
is located on the valley floor and the proposed three lot subdivision is typical of properties in
the neighborhood.
d. That the site is physically suitable for the intensity of development contemplated
under the approved subdivision.
The subject property is physically suitable in size and shape in conformance to development
standards and is appropriately configured to accommodate single-family dwelling units that
comply with development standards in Chapter 19.28.
e. That the design of the subdivision or the proposed improvements are not likely to
cause substantial environmental damage nor substantially and avoidable injure fish
and wildlife or their habitat.
The proposed subdivision design and improvements are not likely to cause serious public health
problems nor substantially injure fish and wildlife or their habitat because the property is a
developed site, not in an ecologically sensitive area or the hillsides, but in an urbanized
suburban area where residential land use is allowed.
f. That the design of the subdivision or the type of improvements associated therewith
are not likely to cause serious public health problems.
Resolution No. 121 TM-2018-01 February 11,2021
Page-3-
The proposed development is consistent with the existing adjacent residential development,
and the on-site and off-site improvements improve neighborhood walkability through new
detached sidewalk construction with size-appropriate driveway cuts and street and private
trees planting.
g. That the design of the subdivision and its associated improvements will not conflict
with easements acquired by the public at large for access through or use of property
within the proposed subdivision.
No easement or right-of-way exists currently that would be impeded or conflict with the
proposed subdivision.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter, subject to the conditions which are enumerated in this
Resolution beginning on Page 2 thereof,the application for a Tentative Map, Application
no. TM-2018-01, is hereby approved; and
That the subconclusions upon which the findings and conditions specified in this
Resolution are based and contained in the Public Hearing record concerning Application
no. TM-2018-01 as set forth in the Minutes of Administrative Hearing Meeting of
February 11, 2021, and are incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set entitled, "Tentative Map Three New Single Family
Lot Subdivision and Street Dedication In Fee, 11226 Bubb Rd., Cupertino, CA 95014,"
drawn by SMP Engineers, dated May 21, 2020, including six sheets labeled T-1, and
C-1 through C-5; except as may be amended by conditions in this resolution.
2. ACCURACY OF 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.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in EA-2018-02 shall be applicable to this
approval.
Resolution No. 121 TM-2018-01 February 11,2021
Page-4-
4. PROTECTED TREES
No removal of protected trees are approved as part of this Tentative Map approval.
Any specimen trees proposed for removal will require a separate Tree Removal
Permit application and replacement under Chapter 14.18 of the Cupertino Municipal
Code.
5. DEVELOPMENT ALLOCATION
The project is granted a development allocation of two units from the Citywide
allocation.
6. BELOW MARKET RATE HOUSING PROGRAM
The applicant shall participate in the City's Below Market Rate (BMR) Housing
Program by paying the housing mitigation fees as per the Housing Mitigation
Manual. These fees will be assessed at the time of Building permit issuance for the net
new residential unit and any proposed accessory dwelling units.
7. 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 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
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.
Resolution No. 121 TM-2018-01 February 11,2021
Page-5-
The applicant shall annotate all permit plans with the above requirements and shall
comply with the above grading and construction hours and noise limit requirements
unless otherwise indicated.
8. DUST CONTROL
The following construction practices shall be implemented during all phases of
construction for the proposed project to prevent visible dust emissions from leaving
the site:
a. Water all exposed surfaces areas (e.g., parking areas, staging areas, soil piles,
graded areas, and unpaved access roads) at least twice daily and more often
during windy periods to prevent visible dust from leaving the site; active areas
adjacent to windy periods; active areas adjacent to existing land uses shall be kept
damp at all times, or shall be treated with non-toxic stabilizers or dust palliatives.
b. All haul trucks transporting soil, sand, or other loose material off-site shall be
covered.
c. All visible mud or dirt track-out onto adjacent public roads shall be removed using
wet power vacuum street sweepers at least once per day. The use of dry power
sweeping is prohibited.
d. All vehicle speeds on unpaved roads shall be limited to 15 mph.
e. All roadways, driveways, and sidewalks to be paved shall be completed as soon
as possible. Building pads shall be laid as soon as possible after grading unless
seeding or soil binders are used.
f. Idling times shall be minimized either by shutting equipment off when not in use
or reducing the maximum idling time to 5 minutes (as required by the California
airborne toxics control measure Title 13, Section 2485 of California Code of
Regulations [CCR]). Clear signage shall be provided for construction workers at
all access points.
g. All construction equipment shall be maintained and properly tuned in accordance
with manufacturer's specifications. All equipment shall be checked by a certified
mechanic and determined to be running in proper condition prior to operation.
h. Post a publicly visible sign with the telephone number and person to contact at the
Lead Agency regarding dust complaints. This person shall respond and take
corrective action within 48 hours. The Air District's phone number shall also be
visible to ensure compliance with applicable regulations.
The applicant shall incorporate the City's construction best management practices
into the building permit plan set prior to any grading, excavation, foundation or
building permit issuance.
Resolution No. 121 TM-2018-01 February 11,2021
Page-6-
9. CONSTRUCTION MANAGEMENT PLAN
Final map improvement plans shall include a construction management plan
detailing how construction activities will be conducted. The plan shall address, but
not be limited to the following activities:
a. Construction staging area(shall not occur within 15 feet of neighboring residential
property lines)
b. Construction schedule and hours
c. Construction phasing plan, if any
d. Contractor parking area
e. Tree preservation/protection plan
f. Site dust, noise and storm run-off management plan
g. Emergency/complaint and construction site manager contacts
10. DEMOLITION OF STRUCTURES
Prior to recordation of the final map, the applicant shall demolish and remove all
structures on the property. All demolished buildings and site materials shall be
recycled to the maximum extent feasible subject to the Building Official.The applicant
shall provide evidence that materials will be recycled prior to issuance of demolition
permit.
11. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible for consulting 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.
12. EXPIRATION
The approval or conditional approval of the Tentative Map Subdivision shall expire
twenty four (24) months from the date of Administrative Hearing approval. An
extension or extensions may be approved as provided in Section 18.20.080.
13. 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
Resolution No. 121 TM-2018-01 February 11,2021
Page-7-
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.
14. 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
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.
SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS DEPT.
1. TRAFFIC IMPACT FEES
Resolution No. 121 TM-2018-01 February 11,2021
Page-8-
The Project is subject to the payment of Transportation Impact Fees under City's
Transportation Impact Fee Program(Chapter 14.02 of the Cupertino Municipal Code).
2. PARKS
The residential project is subject to the payment of park fees in-lieu of park land
dedication under City's Park Land Dedication Fee (Chapter 13.08 of the Cupertino
Municipal Code).
3. PARCEL MAP
Prior to approval of the Building permit, a parcel map will be required. Existing
building shall be demolished prior to parcel map recordation as it cannot straddle
between parcel lines.
4. STREET IMPROVEMENTS & DEDICATION
Provide a street dedication in fee title and frontage improvements along the project to
the satisfaction of the Director of Public Works. Street improvement, grading and
drainage plans must be completed and approved prior to Parcel map approval.
Street improvements may include, but not be limited to, new sidewalk, ADA ramp,
curb & gutter, driveways, sewer laterals, street tree installations, pavement, and
underground utilities.
5. PEDESTRIAN AND BICYCLE IMPROVEMENTS
Developer shall provide pedestrian and bicycle related improvements (eg. walkway
and bicycle racks, etc.) consistent with the Cupertino Bicycle Transportation Plan and
the Pedestrian Transportation Guidelines, and as approved by the Director of Public
Works.
6. GRADING &DRAINAGE
Grading and drainage shall be as approved and required by the Director of Public
Works in accordance with Chapter 16.08 of the Cupertino Municipal Code. 401
Certifications and 404 permits maybe required.
Additional comments will be provided and shall be incorporated prior to Parcel Map
approval.
7. C.3 REQUIREMENTS
C.3 regulated improvements are required for all projects creating and/or replacing
10,000 S.F.or more of impervious surface(collectively over the entire project site). The
developer shall reserve a minimum of 4% of developable surface area for the
placement of low impact development measures, for storm water treatment, unless
Resolution No. 121 TM-2018-01 February 11,2021
Page-9-
an alternative storm water treatment plan,that satisfies C.3 requirements,is approved
by the Director of Public Works.
The developer must include the use and maintenance of site design, source control
and storm water treatment Best Management Practices (BMPs), which must be
designed per approved numeric sizing criteria. A Storm Water Management Plan,
Storm Water Facilities Easement Agreement, Storm Water Facilities Operation and
Maintenance Agreement, and certification of ongoing operation and maintenance of
treatment BMPs are each required.
All storm water management plans are required to obtain certification from a City
approved third party reviewer.
8. SUBDIVISION AGREEMENT
The project developer shall enter into a development agreement with the City of
Cupertino providing for payment of fees, including but not limited to checking and
inspection fees, storm drain fees, park dedication fees and fees for under grounding
of utilities. Said agreement shall be executed prior to Parcel Map approval.
Fees:
a. Checking & Inspection Fees: Per current fee schedule: $891
b. Grading Permit: Per current fee schedule: $3,059.00 or 6% of
improvement costs
c. Parcel Map Fee: Per current fee schedule: $5,985
d. Storm Drainage Fee: Per current fee schedule: $3,565 ($4,951 per AC)
e. Transportation Impact Fee: Per current fee schedule: $12,476 ($6,238 per
unit X 2 new units)
f. Encroachment Permit Fee: Per current fee schedule: $2,638
g. Park Fees: Per current fee schedule: $210,000 ($105,000 per
unit X 2 new units)
h. Storm Management Plan Fee Per current fee schedule: $1,396
i. Street Tree Per current fee schedule: $1,206 ($402 per tree X
3 new trees)
Bonds:
Faithful Performance Bond: 100% of Off-site and On-site Improvements
Labor &Material Bond: 100% of Off-site and On-site Improvement
On-site Grading Bond: 100% of site improvements.
The fees described above are imposed based upon the current fee schedule adopted
by the City Council. However, the fees imposed herein may be modified at the time
Resolution No. 121 TM-2018-01 February 11,2021
Page-10-
of recordation of a final map or issuance of a building permit in the event of said
change or changes, the fees changed at that time will reflect the then current fee
schedule.
9. SURVEYS
A Boundary Survey and a horizontal control plan will be required for all new
construction to ensure the proposed building will be set based on the boundary
survey and setback requirements.
10. OPERATIONS &MAINTENANCE AGREEMENT
Developer shall enter into an Operations & Maintenance Agreement with the City
prior to Parcel Map recordation.
11. UNDERGROUND UTILITIES
Developer shall comply with the requirements of the Underground Utilities
Ordinance No. 331 and other related Ordinances and regulations of the City of
Cupertino, and shall coordinate with affected utility providers for installation of
underground utility devices. Developer shall submit detailed plans showing utility
underground provisions. Said plans shall be subject to prior approval of the affected
Utility provider and the Director of Public Works.
12. TRANSFORMERS
Electrical transformers, telephone cabinets and similar equipment shall be placed in
underground vaults. The developer must receive written approval from both the
Public Works Department and the Community Development Department prior to
installation of any above ground equipment. Should above ground equipment be
permitted by the City, equipment and enclosures shall be screened with fencing and
landscaping such that said equipment is not visible from public street areas, as
determined by the Community Development Department. Transformers shall not be
located in the front or side building setback area.
13. WATER BACKFLOW PREVENTERS
Domestic and Fire Water Backflow preventers and similar above ground equipment
shall be placed away from the public right of way and site driveways to a location
approved by the Cupertino Planning Department, Santa Clara County Fire
Department and the water company.
14. BEST MANAGEMENT PRACTICES
Utilize Best Management Practices (BMPs), as required by the State Water Resources
Control Board, for construction activity, which disturbs soil. BMP plans shall be
included in grading and street improvement plans.
Resolution No. 121 TM-2018-01 February 11,2021
Page-11 -
15. EROSION CONTROL PLAN
Developer must provide an approved erosion control plan by a Registered Civil
Engineer. This plan should include all erosion control measures used to retain
materials on site. Erosion control notes shall be stated on the plans.
16. WORK SCHEDULE
Every 6 months, the developer shall submit a work schedule to the City to show the
timetable for all grading/erosion control work in conjunction with this project.
17. TRAFFIC CONTROL PLAN
The developer must submit a traffic control plan by a Registered Traffic Engineer to
be approved by the City. The plan shall include a temporary traffic control plan for
work in the right of way as well as a routing plan for all vehicles used during
construction. All traffic control signs must be reviewed and approved by the City
prior to commencement of work. The City has adopted Manual on Uniform Traffic
Control Devices (MUTCD) standards for all signage and striping work throughout
the City.
18. STREET TREES
Street trees shall be planted within the Public Right of Way by the City and shall be
of a type approved by the City in accordance with Ordinance No. 125.
19. FIRE PROTECTION
Fire sprinklers shall be installed in any new construction to the approval of the City.
20. SANTA CLARA COUNTY FIRE DEPARTMENT
A letter of clearance for the project shall be obtained from the Santa Clara County Fire
Department prior to issuance of building permits. Clearance should include written
approval of the location of any proposed Fire Backflow Preventers, Fire Department
Connections and Fire Hydrants (typically Backflow Preventers should be located on
private property adjacent to the public right of way, and fire department connections
must be located within 100' of a Fire Hydrant).
21. SAN TOSE WATER COMPANY CLEARANCE
Provide San Jose Water Company approval for water connection, service capability
and location and layout of water lines and backflow preventers before Parcel Map
approval.
22. DEDICATION OF UNDERGROUND WATER RIGHTS
Developer shall "quit claim" to the City all rights to pump, take or otherwise extract
water from the underground basin or any underground strata in the Santa Clara
Valley.
Resolution No. 121 TM-2018-01 February 11,2021
Page-12-
23. SANITARY DISTRICT
A letter of clearance for the project shall be obtained from the Cupertino Sanitary
District prior to Parcel Map approval.
24. UTILITY EASEMENTS
Clearance approvals from the agencies with easements on the property (including
PG&E, AT&T, and California Water Company, and/or equivalent agencies) will be
required prior to Parcel Map approval.
CITY ENGINEER'S CERTIFICATE OF
ACCEPTANCE OF ENGINEERING/SURVEYING CONDITIONS
Section 66474.18 California Government Code)
I hereby certify that the engineering and surveying conditions specified in Section IV. of
this Resolution conform to generally accepted engineering practices.
s/Chad Mosley
Chad Mosley,Assistant Director of Public Works
City Engineer CA License 66077
SECTION V: CONDITIONS ADMINISTERED BY CUPERTINO SANITARY
1. CONNECTION PERMIT FEES
Connection permit fees,lateral disconnection fees, frontage fees, and acreage fees will
be required for the proposed lots during the Building Permit Phase.
2. LATERAL & SEWER LINE CLEANOUT
Three existing laterals available for the existing property to be disconnected from the
District sewer main line and abandoned per District's standards. Each lot shall have
their own newly installed lateral and property line cleanout per District's standards.
3. GRADING &DRAINAGE PLANS
Show existing sanitary sewer laterals on Sheet C-3 and provide callouts stating they
will be abandoned. Additionally, show two new laterals for Lots A and B but address
the WYE connection at the main that are oriented in the incorrect direction. Finally,
show sanitary sewer main on Krzich Place.
4. REGISTERED CONTRACTOR
The contractor performing the work disconnecting and connecting to the District's
sewer mains shall be registered with the District.
Resolution No. 121 TM-2018-01 February 11,2021
Page-13-
PASSED AND ADOPTED this 11th day of February, 2021 at a noticed Public Hearing of
the Administrative Hearing Officer of the City of Cupertino, State of California, held by
the Director of Community Development, or his or her designee, pursuant to Cupertino
Municipal Code Section 19.12.120.
ATTEST: APPROVED:
s/Teffrey Tsumura s/Albert Salvador
Jeffrey Tsumura Albert Salvador
Associate Planner Administrative Hearing Officer