TR-2023-039 Res 147CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 147
OF THE ADMINISTRATIVE HEARING OFFICER OF THE CITY OF
CUPERTINO APPROVING AN ARCHITECTURAL AND SITE
APPROVAL PERMIT TO ALLOW EXTERIOR FAÇADE
RENOVATIONS TO FIVE EXISTING STRUCTURES AND SURFACE
PARKING LOT IMPROVEMENTS AT THE SUNNYVIEW
RETIREMENT COMMUNITY LOCATED AT 22445 CUPERTINO RD
SECTION I: PROJECT DESCRIPTION
Application No.: TR-2023-039
Applicant: Michael Paluso (Steele Group)
Location: 22445 Cupertino Road; APN: 326-15-130, 326-15-133, 326-15-123, 326-15-124
SECTION II: FINDINGS FOR TREE REMOVAL PERMIT:
WHEREAS, the City of Cupertino received an application for a Tree Removal permit as
described in Section I of this Resolution; and
WHEREAS, the necessary public notices have been given as required by the Cupertino
Municipal Code, and the Administrative Hearing Officer has held at least one public
meeting with regard to the application; and
WHEREAS, pursuant to the provisions of the California Environmental Quality Act of
1970 (Public Resources Code section 21000 et seq.) ("CEQA"), together with the State
CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.)
(hereinafter, "CEQA Guidelines"), the City staff has independently studied the proposed
Project and has determined that the Project is exempt from environmental review
pursuant to the categorical exemption in CEQA Guidelines section 15301 for the reasons
set forth in the staff report dated July 25, 2024 and incorporated herein; and
WHEREAS, the applicant has met the burden of proof required to support said
application; and
WHEREAS, the Administrative Hearing Officer finds as follows with regard to this
application:
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1. That the location of the trees restricts the economic enjoyment of the property by
severely limiting the use of property in a manner not typically experienced by
owners of similarly zoned and situated property, and the applicant has
demonstrated to the satisfaction of the approval authority that there are no
reasonable alternatives to preserve the tree(s).
The applicant’s and the City’s consultant arborists have found that the area in which the
improvements have been proposed cannot maintain the trees as they are currently planted
due to a combination of the proposed project scope and existing tree conditions. Tree
replacements are required and have been reviewed and incorporated as a part of the approved
plans.
2. That the tree or trees are irreversibly diseased, are in danger of falling, can cause
potential damage to existing or proposed essential structures, or interferes with
private on-site utility services and cannot be controlled or remedied through
reasonable relocation or modification of the structure or utility services;
The applicant’s and the City’s consultant arborists agree that Tree ID 8, a 26” Coast live Oak should be
recommend for removal. Due to the tree’s structural defects that cannot be corrected, internal decay and loss of
trunk strength, it is recommended that the tree be removed for public safety
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of the maps, facts, exhibits, testimony, staff’s report and
presentation, 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 Tree Removal Permit, Application no. TR-2023-039 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. TR-2023-039 as set forth in the Minutes of the Administrative Hearing
Meeting of July 25, 2024 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 drawn by MW Seele Group “Sunnyview Retirement
Community” consisting of seventy-six (76) sheets labeled A0.1, A1.0, A1.0a, A1.1-
A1.4, A2.0-A2.3, A3.0-A3.1.1, A4.0-A4.2, A5.0-A5.2, A6.0-A6.1, A7.0, A10.0, C1.0-C4.0,
E002-E207, G0.0, G0.3, and L1.0-L6.4, except as may be amended by conditions in this
resolution.
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2. ACCURACY OF 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. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. U-1989-07 and ASA-2023-006 shall
be applicable to this approval.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
first page of the building plans
5. TREE REMOVAL
Tree removal for trees 8, 12-14, 24-26, 30-32, 43, and 75 shall be performed by an ISA
(International Society of Arboriculture) Certified Arborist or Tree Worker, not
construction personnel. Care must be taken not to damage the roots, trunks, or
canopies of adjacent trees. If roots are encountered, they shall be cut cleanly
perpendicular to the root with a sharp saw. All brush and tree debris must be removed
off site and properly disposed.
6. TREE PROTECTION
The contractor and Consulting Arborist shall meet to establish tree protection zones
(TPZ) for trees 9, 19, 52, 60-62, 29, 39, 41, 44, 45, 47-51. Tree protection fencing shall be
installed prior to construction and remain in place for the duration of the project,
unless approved by the project arborist. Fencing shall be 6’ chain link fencing secured
into the ground and fully enclose the TPZ. Tree protection regulations shall be posted
on all tree protection fencing. The fencing shall remain in place for the duration of the
project.
a. Tree protection fencing distances shall follow Table 6. Tree Protection Zones
located on page 16 of the BUENA VISTA TREE SERVICE ARBORIST REPORT,
dated February 2024.
7. STORAGE OF MATERIALS
No work shall be performed, or storage of materials shall occur within the TPZ
without arborist approval and supervision as needed to prevent damage to tree
trunks and tree roots, and to document development impacts (see table 6 and
illustration 1, following pages).
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8. TREE TRUNK WRAPPING
Trunks of trees 9, 19, 28, 29, 34-42, 44-52, and 60-64 shall be wrapped up the trunk to
6’ to the lowest branch with straw wattle.
9. CRITICIAL ROOT ZONE
Root buffers, configured to provide the most protection possible, are required at the
base of tree #29, and in the courtyard within the TPZ of trees #40-42, and 44 to provide
worker and equipment access when working within or around the TPZ consisting of
a 4-6” base course of ¾” bark chips, a cap of ¾” quarry gravel to stabilize, with ¾”
plywood on top to provide an access path without compacting the soil within tree
driplines.
10. TREE PRUNING
Perform reduction pruning to balance asymmetrical canopies and reduce heavy end
weights and any other trees that may be subject to equipment or material clearance
and to avoid branch breakage. This would apply to trees #9-11, 19, 33, 52, 63, 64, and
any other trees requiring equipment or material access. No interior branches should
be removed. All pruning shall be performed by an International Society of
Arboriculture Certified Arborist in compliance with ANSI A300 Part 1 Pruning (2017)
and companion Best Management Practices – Tree Pruning and comply with the
Migratory Bird Treaty Act and California Fish and Wildlife Code 3503-3513 to avoid
nesting bird disturbance.
11. DURING CONSTRUCTION
a. All excavation work within the TPZ of protected trees shall be monitored by the
Consulting Arborist. If any injury should occur to any tree, contact the Consulting
Arborist for evaluation and appropriate treatment.
b. TPZ fencing is to remain in place for the duration of the project.
c. If any roots are encountered outside the TPZ, they shall be cut perpendicular to
the root with a sharp saw or loppers. Do not tear the root or rip it from the soil. If
roots larger than 2” are encountered, contact the Consulting Arborist for proper
treatment.
d. No storage of materials, equipment, soil, waste, oil, gasoline, rinsates, etc. should
be deposited in the TPZ.
e. Avoid idling of any equipment as the exhaust may damage foliage and branches
of subject trees and other landscape plants in the area.
12. POST-CONSTRUCTION
a. The subject tree resource will experience a change in environment from the
development on site. The health, structural stability, and vitality of the trees
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should be documented post-construction by the Consulting Arborist and
monitored for changes in condition.
b. With site disturbance, soil compaction, and the potential for root loss, tree decline
is possible for the sixty-five (65) trees retained. Photo documentation is
recommended and effective in monitoring any visible changes in tree health.
c. Employing best management practices including proper irrigation management,
occasional pruning, and maintaining a dripline clear of materials and activities
that cause root disturbance and compaction will promote tree health.
13. DEMOLITION REQUIREMENTS
All demolished site materials shall be recycled to the maximum extent feasible subject
to the Building Official. The applicant shall provide evidence that materials were
recycled prior to occupancy.
14. 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
15. 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 PMlO) during demolition, ground disturbing
activities and/or construction.
16. 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
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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 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
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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,
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.
17. 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.
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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
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.
18. 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
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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.
19. 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.
20. 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:
a. Permitted construction days and hours;
b. A description of proposed construction activities;
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c. 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
d. 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.
21. 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
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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.
22. 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:
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.
23. 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
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“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.
24. 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.
PASSED AND ADOPTED this 25th day of July 2024 at a noticed Public Meeting 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.
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