HomeMy WebLinkAboutCC Resolution No. 26-040 approving Tree Removal permit (TR-2024-033)RESOLUTION NO. 26-040
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A TREE REMOVAL PERMIT FOR THE
REMOVAL AND REPLACEMENT OF 249 DEVELOPMENT TREES
IN COMBINATION WITH AN IN-LIEU OF REPLACEMENT FEE
LOCATED AT 20807, 20813, 20823 & 20883 STEVENS CREEK
BLVD; APNs: 326-32-050, -051, -052, & -053
SECTION I: PROJECT DESCRIPTION
Application No.: TR-2024-033
Applicant: Kevin Choy (Harvest Properties)
Property Owner: Blair Volckmann
Location: 20807, 20813, 20823 & 20883 Stevens Creek Blvd; APNs: 326-32-050,
-051, -052, and -053
SECTION II: FINDINGS FOR A TREE REMOVAL PERMIT:
WHEREAS, the Planning Commission of the City of Cupertino received an application
for a Tree Removal Permit as described in Section I of this resolution; and
WHEREAS, the project is determined to be statutorily exempt from the California
Environmental Quality Act (CEQA) pursuant to Section 15061(b)(1) of the CEQA
Guidelines because the proposed project would meet the requirements of the Public
Resources Code (PRC) Section 21080.66(a); and
WHEREAS, on March 24, 2026 , the Planning Commission held a duly noticed public
hearing to receive staff’s presentation and public testimony, and to consider the
information contained in the Exemption Memorandum along with all staff reports, other
pertinent documents, and all written and oral statements received prior to and at the
public hearing; and
WHEREAS, on March 24, 2026 the Planning Commission recommended on a 5-0 vote
that the City Council approve the Use Permit (U-2024-008) in substantially similar form
to the Resolution presented (Resolution No. 2026-11), approve the Architectural and Site
Approval Permit (ASA-2024-011) in substantially similar form to the Resolution
presented (Resolution No. 2026-12), approve the Vesting Tentative Map (TM-2024-006)
in substantially similar form to the Resolution presented (Resolution No. 2026-13), and
approve the Tree Removal Permit (TR-2024-033), in substantially similar form to the
Resolution presented (Resolution No. 2026-14); and
WHEREAS, the Planning Commission motion included a recommendation to City
Council to explore additional benefits or assistance options for retail tenants that will be
Resolution No. 26-040
Page 2
displaced due to this housing development and similar projects. The Planning
Commission requested that the City Council, as a matter of establishing policy, consider
items such as expedited permitting processes, consideration of reduced fees, and other
opportunities for assistance for businesses impacted by seeking relocation; and
WHEREAS, all necessary public notices having been given as required by the City of
Cupertino Municipal Code and the Government Code, and the Planning Commission
held at least one public hearing in regard to this application; and
WHEREAS, the City Council of the City of Cupertino is the decision-making body for
this Resolution; and
WHEREAS, the applicant has met the burden of proof required to support the application
for a Tree Removal Permit; and
WHEREAS, the City Council finds as follows with regard to this application:
a) 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).
To accommodate for the new development’s structures, walkways and internal street
network to public open spaces, the existing trees cannot be preserved in their locations.
The applicant proposes a combination of replacement trees throughout the site with
payment of an in-lieu of tree replacement fee, in conformance with the Municipal Code
Ordinance requirements. The project proposes to locate the replacement trees where tree
coverage is needed, while protecting all off site trees adjacent to the project site.
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 3 herein, and subject to the conditions contained in all
other Resolutions approved for this Project
The application for a Tree Removal Permit, Application No. TR-2024-033, is hereby
approved, and that the sub-conclusions upon which the findings and conditions specified
in this Resolution are based are contained in the Public Hearing record concerning
Application no. TR-2024-033 as set forth in the Minutes of the City Council Meeting of
April 7, 2026 Meeting, and are incorporated by reference as though fully set forth herein.
Resolution No. 26-040
Page 3
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT
DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set entitled “20807 – 20883 Stevens Creek Blvd.
Cupertino” consisting of 196 sheets labeled as, A0.01– A4.00, C1 – C26, L1.0 –
L10.1, JT-1 to JT-4, PM, and SL-1 to SL-4, drawn by ktgy Architects, Gates +
Associates landscape, cbg Civil Engineers Surveyors, and Radius Joint Trench,
except as may be amended by conditions in this resolution.
2. ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible for verifying 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. TM-2024-006, ASA-2024-011, and
U-2024-008 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 RETENTION
In accordance with the approved, peer-reviewed arborist report for this project,
the applicant is required to protect in-place and retain the (6) Callery Pear street
trees along Steven’s Creek Blvd #2, #5, #7, #8, #10, & #233; and protect in place
neighboring trees located off-site along the shared west property line #250-#258.
6. TREE REPLACEMENT SIZE
The applicant shall provide adequate tree replacements for trees proposed to be
removed in conformance with the replacement guidelines per Cupertino
Municipal Code Section 14.18.160. The required tree replacement for the project
is eight (8) 36” box trees or 143 24” box trees, or a combination thereof that meets
the minimum requirements. If the planting schedule is modified, the size of the
proposed replacement trees shall be consistent with the following requirements of
the City’s Protected Tree Ordinance unless deemed infeasible by the City’s
Consulting Arborist:
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• Diameter of trunk size of removed tree up to 12 inches shall be replaced with
one 24-inch box tree;
• Over 12 inches and up to 36 inches shall be replaced by two 24-inch box tree
or one 36-inch box tree; and
• Over 36 inches shall be replaced with one 36-inch box tree.
Should it be determined that planting of replacement trees in the quantity or a
portion of the quantity specified above cannot be accomplished in accordance with
best forestry management practices, the applicant shall pay an in-lieu fee for each
tree not replaced on-site in accordance with the in-lieu fee requirements outlined
in Municipal Code Section 14.18.160(B).
7. ARBORIST REVIEW
Prior to building permit issuance, any modifications to the approved landscape
plan including, but not limited to, the number, location, and species of
replacement trees, shall be reviewed and approved by the City in consultation
with the City’s Consulting Arborist, at the applicant’s cost. All replacement trees
shall be planted prior to final building inspection. The Applicant shall provide the
Department of Community Development adequate documentation, including, but
not limited to, photographs, receipts or invoices, to verify that replacement trees
have been planted. The City’s consulting arborist shall inspect the trees after
planting and a report ascertaining the good health of the trees mentioned above
shall be provided prior to issuance of final occupancy for any of the residential
units.
8. TREE PROTECTION
a. As part of the demolition or building permit drawings, a tree protection plan
shall be prepared by a certified arborist for the trees to be retained. In addition,
the following measures shall be added, at a minimum, to the protection plan:
• For trees to be retained, chain link fencing and other root protection shall
be installed around the dripline of the tree prior to any project site work.
• No parking or vehicle traffic shall be allowed under root zones, unless using
buffers approved by the Project Arborist.
• No trenching within the critical root zone area is allowed. If trenching is
needed in the vicinity of trees to be retained, the City’s consulting arborist
shall be consulted before any trenching or root cutting beneath the dripline
of the tree.
• Wood chip mulch shall be evenly spread inside the tree projection fence to
a four-inch depth.
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• Tree protection conditions shall be posted on the required tree protection
barriers.
• Retained trees shall be watered to maintain them in good health.
• A covenant on the property shall be recorded that identifies all the
protected trees, prior to final occupancy.
b. The tree protection measures shall be inspected and approved by the certified
arborist prior to issuance of building permits.
c. The City’s consulting arborist, retained at the applicant’s expense, shall inspect
the trees to be retained and the tree protection measures, and shall provide
reviews prior to issuance of demolition, grading or building permits.
d. A report ascertaining the good health of the trees mentioned above shall be
provided by the applicant’s arborist, to be peer reviewed by the City’s
Consulting Arborist, prior to issuance of final occupancy.
9. PROTECTED TREES
The applicant and future property owners understand that the replacement trees
and all other trees approved with this development may not be removed without
the prior approval by the Community Development Department of a Tree
Removal Permit and that they shall be responsible for ensuring the proper
maintenance and care of the trees. The applicant shall also disclose the location
and species of all replacement and development trees on site upon sale of the
property.
10. 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.
11. 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
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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.
12. 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.
Resolution No. 26-040
Page 7
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 7th day of April, 2026, by the following vote:
Members of the City Council
AYES: Moore, Chao, Fruen, Mohan
NOES: None
ABSENT: Wang
ABSTAIN: None
SIGNED:
Kitty Moore, Mayor
City of Cupertino
Date
ATTEST:
Lauren Sapudar, City Clerk
__4/15/2026_____________________
Date
4/15/2026