10095 Orange Ave_MMP-2024-001_Action LetterMay 14, 2024
Chandra Sakthivel
10095 Orange Ave
Cupertino, CA 95014
sakthivel.chandrasekar@gmail.com
cc’ azadeh@amsdesignllp.com
SUBJECT: MISCELLANEOUS MINISTERIAL PERMIT– Application MMP-2024-001
This letter confirms the decision of the Director of Community Development, given on May 14, 2024, approving a Miscellaneous Ministerial Permit (MMP-2024-001) to allow the construction
of a new two-story single-family residence, with an attached one car garage, and attached ADU under the provisions of Senate Bill 9 located at 10095 Orange Ave, with the following conditions:
APPROVED EXHIBITS
The approval is based on a plan set entitled “ORANG ERESIDENCE”, consisting of 9 plan sheets labeled “A-00.01, A-01.01, A-02.01, A-02.02, A-03.01, A-03.02, A-04.01, DE-01, T-01” except
as may be amended by conditions in this resolution.
ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the building plans.
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 property data may invalidate this approval and may require additional review.
PRIVATE OPEN SPACE
The required private open space outlined on Sheet A1 shall be maintained as private open space, as defined in Municipal Code Section 19.08.030.
REFUSE AND RECYCLING CONTAINER SCREENING
The required refuse and recycling container space outlined on Sheet A1 shall be maintained in accordance with the requirements of Municipal Code Section 19.28.150(E)(13).
COMPLIANCE WITH PUBLIC WORKS CONFIRMATION FORM
The project shall comply with the requirements indicated on the Public Works Confirmation form dated October 23, 2023, including, but not limited to, dedications, easements, off-site
improvements, undergrounding of utilities, all necessary agreements, and utility installations/relocations as deemed necessary by the Director of Public Works and required for public
health and safety. The Public Works Confirmation is a preliminary review and is not an exhaustive review of the subject development. Additional requirements may be established and implemented
during the construction permitting process. The project construction plans shall address these requirements with the construction permit submittal, and all required improvements shall
be completed to the satisfaction of the Director of Public Works prior to final occupancy.
CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult 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.
EXTERIOR BUILDING MATERIALS/TREATMENTS
The final building exterior plan shall closely resemble the details shown on the original approved plans. Final building exterior treatment plan (including but not limited to details
on exterior color, materials, architectural treatments, doors, windows, lighting fixtures, and/or embellishments) shall be reviewed and approved by the Director of Community Development
prior to issuance of building permits to ensure quality and consistency. Any exterior changes determined to be substantial by the Director of Community Development shall either require
a modification to this permit or a new permit based on the extent of the change.
DARK SKY COMPLIANCE
Prior to issuance of Building Permits, the applicant/property owner shall submit final plans in compliance with the approved lighting plans to comply with development standards of Cupertino
Municipal Code Section 19.102.040 Outdoor Lighting Requirements. In the event changes are proposed from the approved plans, said changes must be reviewed and approved by the Director
of Community Development or their designee. The applicant shall provide all documentation required to determine compliance with the Municipal Code.
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:
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.
All haul trucks transporting soil, sand, or other loose material off-site shall be covered.
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.
All vehicle speeds on unpaved roads shall be limited to 15 mph.
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.
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.
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.
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.
GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS
All grading activities shall be limited to the dry season (April 15 to October 1), unless permitted otherwise by the Director of Public works.
Construction hours and noise limits shall be compliant with all requirements of Chapter 10.48 of the Cupertino Municipal Code.
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.
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.
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.
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
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.
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.
AVOID NESTING BIRDS DURING CONSTRUCTION
Prior to issuance of the any demolition, grading and building permit, indicate the following on all construction plans:
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.
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:
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.
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:
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 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.
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.
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.
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.
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, 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.
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:
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.
The potential for undiscovered archaeological resources or tribal cultural resources on site.
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.
The protection procedures to follow should construction crews discover cultural resources during project-related earthwork, include the following:
All soil disturbing work within 25 feet of the find shall cease.
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.
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 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.
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.
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.
The Santa Clara County Coroner shall be notified immediately and shall make a determination as to whether the remains are Native American.
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.
The NAHC shall attempt to identify descendants (Most Likely Descendant) of the deceased Native American.
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.
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 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.
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 ensure that a sign measuring at least two
feet by three feet shall be posted on construction fencing at the entrance(s) to the job site, clearly visible to the public, and include the following:
Permitted construction days and hours;
A description of proposed construction activities;
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; and
Contact information for City’s and contractor’s authorized representatives that are assigned to respond in the event of a complaint related to fugitive dust, pursuant to the requirements
for compliance with BAAQMD’s CEQA Air Quality Guidelines.
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.
NOISE AND VIBRATION SIGNAGE
At least 10 days prior to the start of any demolition, ground disturbing, or construction activities, the project applicant/contractor shall ensure that a sign measuring at least two
feet by three feet shall be posted on construction fencing at the entrance(s) to the job site, clearly visible to the public, and include the following:
Permitted construction days and hours;
A description of proposed construction activities;
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; and
Contact information for City’s and contractor’s authorized representatives that are assigned to respond in the event of a complaint related to fugitive dust, pursuant to the requirements
for compliance with BAAQMD’s CEQA Air Quality Guidelines.
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.
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:
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.
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.
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.
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.
PALEONTOLOGICAL RESOURCES
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:
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.
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.
INDEMNIFICATION
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 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.
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.
Please note that if this permit is not vested within a year, it shall expire on May 14, 2025.
Staff received no public comments regarding MMP-2024-001.
Staff has made all the findings that are required for approval of a Miscellaneous Ministerial Permit as required and no additional conditions were placed as a condition for approval
by Cupertino's Municipal Code, Chapter 19.28.150.
The project is consistent with the Cupertino General Plan, any applicable specific plans, zoning ordinances and the purposes of this title.
The proposed project is consistent with the General Plan as the project is within the Low-Density land use area. There are no applicable specific plans that affect the project. The project
has been found to be consistent with the requirements of Cupertino Municipal Code Chapter 19.28 Single Family (R-1) Residential.
The granting of the permit will not result in a condition that is detrimental or injurious to property improvements in the vicinity, and will not be detrimental to the public health,
safety or welfare.
The granting of the permit will not result in a condition that is detrimental or injurious to property improvements in the vicinity, and will not be detrimental to the public health,
safety or welfare as the projects is located within the R1-7.5 (Single Family Residential) zoning district and will be compatible with the surrounding uses of the neighborhood.
The proposed project is harmonious in scale and design with the general neighborhood.
The proposed project is located in a residential area consisting of single-family homes. The proposed project maintains the single-family home scale found compatible with the general
neighborhood.
Adverse visual impacts on adjoining properties have been reasonably mitigated.
Any potential adverse impacts on adjoining properties have been reasonably mitigated through design as required by the R-1 Ordinance and the location of the proposed addition at the
rear of the residence.
Also, please note that an appeal of this decision can be made within fourteen (14) calendar days from the date of this decision (Tuesday, May 28, 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. A copy of the appeal form is available online at: www.cupertino.org/planningforms.
The completed appeal form and filing fee must be received by the deadline to appeal and may be submitted in one of the following ways:
Preferred: Bring a signed copy of the appeal form to the City Clerk’s office between 7:30AM – 5:00PM (M-Th) and 7:30AM – 4:30PM (F).
Other options:
a. Mail the completed form and a check in the amount of $347 to Attn: City Clerk, City of Cupertino, 10300 Torre Avenue, CA 95014.
b. Email the completed form to cityclerk@cupertino.org and call (408) 777-3223 between 7:30AM – 5:30PM (M-Th) and 7:30AM – 4:30PM (F) to arrange for payment by credit card.
Please contact the City Clerk’s office for additional guidance and instructions on how to file.
Sincerely,
Jelani Mora
Jelani Mora
Planning Consultant
City of Cupertino
Enclosures:
Approved Plan Set