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HomeMy WebLinkAboutReso. 156 for TR-2024-040 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 RESOLUTION NO. 156 OF THE ADMINISTRATIVE HEARING OFFICER OF THE CITY OF CUPERTINO APPROVING A TREE REMOVAL PERMIT TO ALLOW REMOVAL OF TEN PROTECT COAST LIVE OAK TREES LOCATED AT 10621 MADERA DRIVE A.P.N 357 35 061 SECTION I: PROJECT DESCRIPTION Application No.: TR-2024-040 Applicant: Ben Engelman (Property Owner) Location: 10621 Madera Drive (A.P.N. 357-35-061) 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 December 4, 2025 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: 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 TM-2024-002, RM-2024-026, TR-2024-040 1/7/2026 Danielle Condit Resolution No. 156 TR-2024-040 December 4, 2025 Page 2 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. In addition, the Environmental Site Assessment (ESA) found soil contamination on site. The soil remediation process will require approximately 2 feet of excavation in areas across the site. Existing trees in those areas have been assessed by applicant’s and the City’s consultant arborists, and both agree that the soil remediation process will exceed the tree(s) tolerance, requiring the tree(s) removal. 2. That the mature specimen trees with single trunk between twelve inches DBH and twenty-four inches DBH, or multi-trunk between twenty-four inches DBH and forty- eight inches DBH in R1, A1, A, RHS, and R2 zones will be replaced by planting a replacement tree and/or by contribution to the City’s Tree Fund.; The property owner has proposed one for one replacement for each protected tree removed on site. The applicant will replace each protected tree in-kind, a total of ten new 36”- box Coast Live Oak Trees will be planted and dispersed across both Lots 1 and 2. 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-2024-040 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-2024-040 as set forth in the Minutes of the Administrative Hearing Meeting of December 4, 2025 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 Gorden K Wong, Architecture consisting of Thirty-one (31) sheets labeled G000, G001, G001.1, G002, G003, G004, G005, C0.0, C0.1, C1.0 C2.0, C3.0, C4.0, C5.0, C6.0, C7.0, L5.00, L5.01, L5.02, L5.03, L5.04, L6.00, TM-2024-002, RM-2024-026, TR-2024-040 1/7/2026 Danielle Condit Resolution No. 156 TR-2024-040 December 4, 2025 Page 3 L6.01, L6.02, L6.03, A101, A102, A103, A200, A300 and A700; except as may be amended by conditions in this resolution. 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. 2. CONCURRENT APPROVAL CONDITIONS The conditions of approval contained in file nos. TM-2024-002 and RM-2024-026 shall be applicable to this approval. 3. 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 4. TREE REMOVAL Tree removal is granted for removal of trees 61-70 & 83-87. Care must be taken not to damage the roots, trunks, or canopies of adjacent trees. If roots of adjacent trees are encountered, they shall be cut cleanly perpendicular to the root with a sharp saw. All brush and tree debris must be promptly removed off site and properly disposed. 5. TREE PROTECTION Tree protection fencing shall be installed prior to construction and remain in place for the duration of the project, unless approved to be temporarily relocated by the project arborist. Fencing shall be 6’ chain link fencing secured into the ground and fully enclose the Tree Protection Zone (TPZ). Tree protection regulations shall be posted on all tree protection fencing. The fencing shall remain in place for the duration of the project. 6. 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. TM-2024-002, RM-2024-026, TR-2024-040 1/7/2026 Danielle Condit Resolution No. 156 TR-2024-040 December 4, 2025 Page 4 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. 7. 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. 8. 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 9. 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. 10. 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 TM-2024-002, RM-2024-026, TR-2024-040 1/7/2026 Danielle Condit Resolution No. 156 TR-2024-040 December 4, 2025 Page 5 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 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. TM-2024-002, RM-2024-026, TR-2024-040 1/7/2026 Danielle Condit Resolution No. 156 TR-2024-040 December 4, 2025 Page 6 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. 11. 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 TM-2024-002, RM-2024-026, TR-2024-040 1/7/2026 Danielle Condit Resolution No. 156 TR-2024-040 December 4, 2025 Page 7 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. 12. 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. 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; TM-2024-002, RM-2024-026, TR-2024-040 1/7/2026 Danielle Condit Resolution No. 156 TR-2024-040 December 4, 2025 Page 8 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 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; 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. 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 TM-2024-002, RM-2024-026, TR-2024-040 1/7/2026 Danielle Condit Resolution No. 156 TR-2024-040 December 4, 2025 Page 9 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 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 TM-2024-002, RM-2024-026, TR-2024-040 1/7/2026 Danielle Condit Resolution No. 156 TR-2024-040 December 4, 2025 Page 10 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. 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, TM-2024-002, RM-2024-026, TR-2024-040 1/7/2026 Danielle Condit TM-2024-002, RM-2024-026, TR-2024-040 1/7/2026 Danielle Condit