Packet.pdfTable of Contents
Agenda 2
draft minutes for 8/9/2011
draft minutes 4
Hillside Exception for an addition to a SFR on a prominent
ridgeline
Staff Report 21
1. Draft Resolution 24
2. Visibility Analysis 31
3. GeoForensics, Inc. report dated May 16, 2011 35
4. Cotton Shires and Associates, Inc. report dated July
20, 2011 38
5. Initial Study, Mitigated Neg Dec 41
6. Regnart Ridge HOA letter 58
7. Prominent Ridgeline Map 59
8. Plan Set 60
Director's Report
Director's Report 75
News Articles 76
1
AGENDA
CITY OF CUPERTINO
PLANNING COMMISSION MEETING
10350 Torre Avenue, Cupertino Community Hall
Tuesday, September 13, 2011
ORDER OF BUSINESS
SALUTE TO THE FLAG: 6:45 p.m.
ROLL CALL
APPROVAL OF MINUTES
1. Subject: draft minutes for 8/9/2011
Recommended Action: approve or deny the draft minutes
Page: 4
WRITTEN COMMUNICATIONS
POSTPONEMENTS/REMOVAL FROM CALENDAR
Item 3. U-2011-01, GPA-2011-01, EXC-2011-01, Z-2011-01, MCA-2011-01 (EA-2011-02), Kevin Chiang (Home of
Christ Church), 10340 & 10420 Bubb Rd
Requests postponement to the September 27, 2011 meeting
ORAL COMMUNICATIONS
This portion of the meeting is reserved for persons wishing to address the Commission on any matter
not on the agenda. Speakers are limited to three (3) minutes. In most cases, State law will prohibit the
Commission from making any decisions with respect to a matter not on the agenda.
CONSENT CALENDAR
PUBLIC HEARING
2. Subject: Hillside Exception for an addition to a SFR on a prominent ridgeline
Recommended Action: approve or deny EXC-2011-09 and EA-2011-09
Description: Application: EXC-2011-09, EA-2011-09
Applicant: Jonathan Fales (McCamish residence)
Location: 22362 Regnart Road APN# 366-45-014
Hillside Exception to allow an approximately 1,266 square foot addition to an existing single
family residence on a prominent ridgeline
Planning Commission decision final unless appealed
Page: 21
3. Subject: Kevin Chiang (Home of Christ Church)
Recommended Action: Approve postponement to the September 27, 2011 meeting
2
Date will go here
Page -2
Description: Application: U-2011-01, GPA-2011-01, EXC-2011-01, Z-2011-01, MCA-2011-01 (EA-
2011-02)
Applicant: Kevin Chiang (Home of Christ Church)
Location: 10340 & 10420 Bubb Rd
Conditional Use Permit to allow church uses in two buildings;
General Plan Land Use Map Amendment to change the land use designation from “Quasi-
Public/Institutional” to “Industrial/Residential/Commercial 10340 Bubb Road;
Parking Exception for shared parking between 10340 and 10420 Bubb Road;
Re-Zone approximately 1.8 acres from BQ (Quasi-Public building) to ML-rc (West Valley Light
Industrial) located at 10340 Bubb Road;
Municipal Code Amendment to codify and update the West Valley Industrial Park Zoning
regulations into the ML (Light Industrial) Zoning Ordinance
Request postponement to the Planning Commission meeting of September 27, 2011
Tentative City Council date: October 18, 2011
Page: no documentation in packet
OLD BUSINESS
NEW BUSINESS
REPORT OF THE PLANNING COMMISSION
Environmental Review Committee
Housing Commission
Mayor’s Monthly Meeting with Commissioners
Economic Development Committee Meeting
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT
4. Subject: Director's Report
Recommended Action: accept report
Page: 75
ADJOURNMENT
If you challenge the action of the Planning Commission in court, you may be limited to raising only those issues
you or someone else raised at the public hearing described in this agenda, or in written correspondence delivered
to the City of Cupertino at, or prior to, the public hearing. Please note that Planning Commission policy is to
allow an applicant and groups to speak for 10 minutes and individuals to speak for 3 minutes.
In compliance with the Americans with Disabilities Act (ADA), the City of Cupertino will make
reasonable efforts to accommodate persons with qualified disabilities. If you require special assistance,
please contact the city clerk’s office at 408-777-3223 at least 48 hours in advance of the meeting.
Materials related to an item on this agenda submitted to the Planning Department after distribution of
the agenda packet are available for public inspection in the Planning Department located at 10300 Torre
Avenue, during normal business hours.
For questions on any items in the agenda, or for documents related to any of the items on the agenda,
contact the Planning Department at (408) 777-3308 or planning@cupertino.org.
3
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
CITY OF CUPERTINO PLANNING COMMISSION
DRAFT MINUTES
6:45 P.M. August 9, 2011 TUESDAY
CUPERTINO COMMUNITY HALL
The regular Planning Commission meeting of August 9, 2011 was called to order at 6:45 p.m. in
the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA., by Chairperson Winnie Lee.
SALUTE TO THE FLAG
.
ROLL CALL
Commissioners present: Chairperson: Winnie Lee
Vice Chairperson: Marty Miller
Commissioner: Paul Brophy
Commissioner: Clinton Brownley
Commissioners absent: Commissioner: Don Sun
Staff present: City Planner: Gary Chao
Senior Planner: Colin Jung
Assistant Planner: George Schroeder
APPROVAL OF MINUTES:
1. Minutes of July 12, 2011 Planning Commission meeting:
MOTION: Motion by Vice Chair Miller, second by Com. Brownley, and carried 4-0-0,
Com. Sun absent; to approve the July 12, 2011 Planning Commission minutes
as presented.
WRITTEN COMMUNICATIONS: None
ORAL COMMUNICATIONS:
Jennifer Griffin, Rancho Rinconada resident:
• Expressed her concern about some items that were being presented to the review committees,
Planning Commission and City Council in the last several months, particularly relating to
FAR, the R1 ordinance, development permit process, and zoning. She cautioned the city to
slow down and make sure that everyone is on board with what is happening and how it affects
all the neighborhoods in Cupertino. She said she was distressed to learn that the R1 ordinance
was being taken apart and the Council was considering changing the FAR at a recent meeting,
and she was also concerned about the development permit process and how it goes hand in
hand with the destruction of the R1 ordinance.
Mark Matsumoto, Government Affairs Specialist, Cupertino Chamber of Commerce:
• Introduced himself to the Planning Commission, stating that he was the new Government
Affairs Specialist with the Cupertino Chamber of Commerce. One of his responsibilities is to
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Cupertino Planning Commission August 9, 2011 2
work with the Planning Commission and city staff to create partnerships and opportunities for
businesses and the city of Cupertino.
POSTPONEMENTS/REMOVAL FROM CALENDAR: None
CONSENT CALENDAR: None
PUBLIC HEARING
2. DP-2011-03, ASA-2011-12, Development Permit to allow the construction of two new
EXC-2011-10, TR-2011-30 retail building pads, 8,136 sq. ft. and 5,086 sq. ft. respectively
Mark Creedon (Byer and demolition of an existing 4,930 sq. ft. restaurant building
Properties) 20750 Stevens for a net square footage increase of 8,292 sq. ft. Architectural
Creek Blvd. and Site Approval for two new retail building pads and
associated site improvements, including, but not limited to
parking lot reorientation, lighting, landscaping and street
frontage improvements consistent with the Heart of the City
Specific Plan. Exception to the Heart of the City Specific Plan
to allow a 26 foot setback for a new Tree Removal Permit to
allow the removal and replacements of 79 trees within an
existing shopping center parking lot in conjunction with the
proposed new development. Tentative City Council date:
September 6, 2011
George Schroeder, Assistant Planner, presented the staff report:
• Reviewed the application and project summary, as outlined in the staff report; which included
demolition of the Marie Callender’s restaurant, and addition of two new retail buildings,
sidewalk, landscaping, lighting and frontage enhancements to the site, parking lot
improvements, etc.
• He reviewed the information relative to site improvements, architectural review, Heart of the
City front setback exception, parking, tree removal and replacement, public outreach
meetings held, lot mergers, delivery, and signage as detailed in the staff report.
• Staff recommends that the Planning Commission recommend approval to the City Council in
accordance with the model resolution.
• Staff answered questions about the application.
Gary Chao:
• Said that although it is useful to compare shopping centers as the consultant did, sometimes
you have to also consider the percent of restaurant; the ratio that it is being locked in at,
because it makes a big difference.
Com. Brophy:
• Said he was concerned about the parking; the application is 80 spaces below the zoning
ordinance; the alternate solution offered developers is to allow them to hire the city’s
consultant to evaluate the site, to recommend appropriate parking, which has been done with
many centers in town. The developer would provide his site plan and the traffic consultant
would evaluate what the demand is and compare that to the number of spaces that the
developers propose. He asked if Hexagon had ever come in with a number that did not meet
the developer’s request. He said staff provided him with copies of other studies done by
Hexagon for his review, and he found that they use different methodologies for different
projects.
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Cupertino Planning Commission August 9, 2011 3
Gary Chao:
• Said they don’t exclusively use Hexagon; they have had situations in the past where after the
first round of analysis, the consultant would prompt issues and concerns which gave them
reasons or abilities to discuss issues with the developer, to either provide more parking or
reduce the intensity to meet the demand.
Com. Brophy:
• Said he reviewed other studies by Hexagon and was concerned that they appeared to use
different methodologies; in the Cupertino Village study they talked about the need to 15 or 20
spaces per 1,000 feet of restaurant; but in this project they are looking at 11 to 13 being
adequate. Given that this site barely meets their number, the concern is that given the proposal
for restaurants in both buildings the numbers don’t seem to add up and it is difficult to accept
Hexagon’s work. Asked staff to clarify why they feel the zoning ordinance is the one to use.
Gary Chao:
• It is difficult to set on one particular ratio or formula that would work and when it happens,
(we) return to the ordinance that has one rate that treats every type of restaurant, shopping
center here is; therefore staff relies on the consultants to provide more insight; actually going
out, measuring and establishing baselines based on other examples.
Com. Brophy:
• Said it was stated that there are centers in town that have a surplus of parking spaces, but he
was at a loss to think of any successful centers with a large surplus of parking spaces and
assumed they planned to add a condition regarding what tenants the developer should lease to.
He questioned if there was an example that shows that the zoning ordinance is not sufficient as
a guide for parking.
Gary Chao:
• Said he did not have a good answer in terms of how to determine the factor of success. The
consultant attempts to measure other shopping centers with similar makeup and tenant mix so
that is their best estimate in terms of projecting a ratio to consider. It doesn’t mean that based
on the Commission’s assessment this evening that they cannot discuss the issue with the
applicant about looking at the ratio of restaurant that they are comfortable with, or looking at
ways where the city has opportunities in the near future to let the tenants go in and see if there
are at least additional adjustments down the road.
Com. Brophy:
• Commented that once you build it, it is difficult to talk about adjustments.
Mark Creedon, Project Architect, Representing Byer Properties:
• Said they supported the resolution in principle; and would discuss some items for the
Commission to examine and discuss. Items 14, 15, 16, relating to some design latitude for
building E; adding a cap or light bar. Said they disagreed with the recommendation, felt it was
garish, and would like to have some latitude with doing something different. Said they would
prefer to use wood around the entrances as it presented a warmer look and would complement
what was there.
• Other two items, substantially opening up and adding doors all the way to grade which would
be ideal in most instances and is done on the other pad building. They currently have booth
seating on the front of Stevens Creek although they do have some additional overflow, public
seating in the front of the building and they have regulated seating part restaurant on the side
of a pedestrian plaza towards the Heritage Oak. Because of that it wouldn’t make sense to
bring doors all the way to grade, since it could not be open because health code requires
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Cupertino Planning Commission August 9, 2011 4
screens in front of those doors. He asked that the requirement be relaxed so they could have
their windows as shown.
• Signage, Items 14 & 16: They endorse the idea of having site signage in front of Building E
on a low wall. If required to have a low project site sign, they would like to move the
landmark sign to the median adjacent to it.
• Item 15: A recommendation was made that the owner of the property file a covenant with the
City requiring that Building E entrance on Stevens Creek. They endorse the idea of entrance
on Stevens Creek and have designed the building so it has entry on both sides as staff
mentioned; also have accommodated a plaza on the front as well, but feel it is over-stepping
and highly restricting the owner to enter into a covenant when he is trying to get tenants for the
building and negotiating on getting leases. He requested that the covenant requirement be
stricken.
• Clarified on Item 14 there was a recommendation of a light cap, a light bar on the top of the
entrance on Building F… would like that stricken; would prefer to use wooden trellises around
the entrances.
• No. 15 – Have designed the project with doors on that side; and have two end cap tenants
which will have doors on all three sides of Building E.
• Commented on discussion of parking; asked many of the same questions and responded much
of the same way. When ordinances are made, they are created to address a stand alone building
as well as a mix of those in a shopping center. The requirements of a stand alone building are
different; there are complementary uses in many shopping centers, where a consumer will go
to different stores in the same center but park in only one space.
Gary Chao commented on the conditions:
• Relative to the conditions about the architectural consultant recommendations, he said staff
generally agrees with the applicant. The language of the condition gives the applicant latitude
in terms of flexibility in allowing staff to make variations from the list, understanding that
ultimately it has to fit the program and demand of the particular tenant.
• Said some of the items listed are good, and cited an example of the cap end on the top of the
light bar; noting that if they are looking at architecture, the intent is to ensure it is a nice finish
to the edges, but not necessarily a light bar; it could be another method. That is the reason why
the conditions read as such; it is not locked in stone. He said he was not encouraging deleting
it from the list, but to allow staff to work it out with the applicant with assurance that they will
work with them to meet their criteria.
• With regards to the entrances condition, the goal of the Heart of the City is to promote an
activation of the street frontage so the idea is not to have any back of house service oriented
activities facing Stevens Creek. Given that this is a new building there is no excuse to create
that sort of situation; and they can live without the covenant requirement, and leaving it as a
condition would be fine. Staff would have some concerns if it was taken out because that was
expressed to the applicant the first day and it was thought to be agreed upon. The covenant is
not needed; the condition speaks for itself.
• Regarding the signage and its relevancy to the Crossroads existing landmark sign, he said it
would require an exception to move the Crossroads landmark sign. The ordinance that
Council recently adopted which preserves the ability for property owners to upkeep the
landmark signs are exactly just that; you can’t rebuild or relocate it, only in time where it is
dilapidating or you need to keep it up. The low wall sign is a mere suggestion, it could be a
traditional ground sign or not have a sign there; not locked in stone, it is something to be
worked out later depending on the requirements and criteria.
• Relative to Building F, the French doors when closed serve as a wall so that on nice sunny
days they can be opened up and activity can spill out; the intent is to facilitate that type of
environment. Given the fact they are asking for a setback average of 31 feet, the justification
behind that is that area is a unique intimate setting where people can sit out and flow in and
out. The reason why staff did not consider what was going on inside is because they were not
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Cupertino Planning Commission August 9, 2011 5
given the floor plan to review; that is a comment about having the interior booth or other
functionality inside, as required by the tenant; staff was not privy to that information. Staff can
work with the applicant; no one wants to violate any health codes or ABC licensing codes
because if alcohol is served, you need to have fencing or gates to separate the public space
from the private space. Staff can be flexible in terms of working with the applicant and
making sure he meets all the rules, including state and county rules.
• Said the Director of Community Development reviews the sign program.
Chair Lee opened the public hearing.
Jennifer Griffin, Rancho Rinconada resident:
• Said she felt the site was one of the most important centers in Cupertino and welcomed new
stores to regenerate shopping in the area.
• Relative to the Heart of the City exception being requested, it has been established that most of
the city wants to have the same look and feel from one end of the city to the other along
Stevens Creek Boulevard and that means a full 35 foot setback; which has been tested time and
again. Said her main issue with the project is the request for the Heart of the City exception
because she was not very familiar with the Panera project from about 2005, and did not know
much about that area, although she always felt that Panera was too close to the street. The
request for the exception was 26 feet; but at 26 feet there is almost 100 feet of public right of
way along Stevens Creek Boulevard that is affected. There is dining furniture in the public
right of way; a building at 26 feet, and parking stalls. Said she felt it would be a successful
restaurant, but it was important to pull it back, get it out of the public right of way which is the
reason for the Heart of the City. With the sensitive design of the building, it can be pulled
back 35 feet and still have a successful establishment, but respect Heart of the City.
Darren Lum, Cupertino resident:
• Thanked Byer Properties for bringing the project to Cupertino; Said he had concerns about the
exception to the Heart of the City;
• Referred to Page 4, para. 6 of staff report, regarding constraints of the project site; he said he
felt the are due to the siting of Building F and also with the adjustment of the lot line between
the Marie Callender site and the parking lot. It is creating a parcel that is over 40,000 sq. ft. for
a building that is 5,000 sq. ft. which represents 12% of the total. The developer wants to put
the new building up against Stevens Creek; he said he felt there are other possibilities of siting
that new building.
• At the end of the paragraph, it says that the project is the 26 foot landscaping easement and is
consistent with commercial district; however, the 26 foot setback is not consistent with the
Heart of the City Specific Plan which has a 26 foot boulevard easement and then a 9 foot
setback for the building which equals 35 feet. Most of the parcels are sufficiently deep in
depth that you can move the buildings back and not impinge on the easements.
• He questioned why none of the proposed projects adhere to the Heart of the City Specific Plan.
It would be a great opportunity for the city and the developer to create the boulevard they are
trying to achieve with Heart of the City.
• He noted some discrepancies in the staff report and the architect’s dimensions on the side
setback, one says 35 feet and the staff report says 35 feet to the east and 492 feet to the west
which is a large setback. The rear setback on the architect’s cover sheet is 92 feet, the staff
report says 320 feet.
• While the consolidated Marie Callender parcel has sufficient space to meet the parking
requirements of Building F; no where in the report does it state what the parking requirements
are for Building F; it appears that there are 40 parking spaces for the new building, whereas the
Marie Callender building has 50.
Chair Lee closed the public hearing.
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Cupertino Planning Commission August 9, 2011 6
Gary Chao:
• Some of the constraints regarding the site that Dr. Lum discussed is not just the fact that the
building has to be located in the front; there is a grade difference between the front half of the
lot to the rear half. The parking lot that Com. Miller was referring to west of the TJ Maxx
building, is sitting at a higher level and there is a slight retaining wall that separates the west
parking lot from the parking lot from Pizza Hut and also Marie Callenders; naturally you only
have the front area to work with.
• Said they always try to encourage new development, especially restaurants, to be located as far
away from residential as possible. Not only does this plan achieve this, it also satisfies the
activation goal of having a nice architectural presentation in front of the street as opposed to
the sea of parking. With all those considered, given the first preservation of the oak tree, the
constraint of the grade differences that exists, also the fact that this is the plan that will give
you the maximum number of parking stalls, given the concern about the parking; staff is
comfortable supporting the exception.
• It is also important to note that the 26 foot minimum landscaping easement discussed, the look
and feel of the Heart of the City is not compromised. The 26 foot minimum landscaping
easement prescribed by the Heart of the City is intact and that allows for a park strip sidewalk
and another park strip; in this case given this section of the crossroad section of the Heart of
the City, that details more urban, similar to Peets, Panera and Whole Foods. When stating the
project is consistent with the Heart of the City, it is referring to those features, the landscaping
features. Staff will answer some of the setback questions.
George Schroeder:
• Relative to setbacks, he said there were discrepancies between the plans and staff report due to
being measured from different places. The setbacks were measured to the rear property line of
the parcel, and the setback measurements in the plans were to incorrect location of the property
line; the ones for Building E were measured for the large shopping center parcel and also to
one of the current sliver parcels and the ones for Building F were measured to their own
parcels.
Com. Brownley:
• Said he was excited about the new restaurant and shops, including the sidewalk landscaping,
street furniture and enhancement, everything elating to activating Stevens Creek and making it
walkable and friendly. Staff will work with the applicant on concerns regarding storage of
shipping containers, delivery trucks, lighting, odor, and traffic to make them conditions for
approval. The remaining issues are parking and the exception for the Heart of the City, but
based on the discussion, there was a traffic study done that says based on the similar projects in
the city with similar parking characteristics, the parking around this area will be adequate. To
a certain degree the parking issue has been discussed and addressed.
• The exception for the Heart of the City: There are constraints on all sides on things that they
are trying to do that make this an appropriate location for the building; in addition to that there
is the precedent of having the exceptions in the past, and for those reasons that is how he is
looking at some of the problems seen on this project.
Com. Brophy:
• After looking at the issue on the Heart of the City exception, while we prefer not to do that, the
need to connect that building and connect the pedestrian connection towards the Pizza Hut and
to try to preserve the Oak tree there, this may be an acceptable solution.
• A single building with an average of 31 feet is not the end of the world because while looking
for a boulevard approach, this is the most heavily commercial section of Stevens Creek
Boulevard and a single exception won’t likely make a difference. He said he was not
concerned as there are already a number of pre-existing buildings that are closer than that.
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Cupertino Planning Commission August 9, 2011 7
• Said he was still concerned about parking and there were still unanswered questions remaining.
The Hexagon study uses unconvincing examples, the Homestead Shopping Center is the
weakest large center in the community; even before P W Super shut down it had a very large
store with low volume, and an oversized Rite Aid, so the traffic was never large. The other
examples used in the survey 18 months ago in Mountain View and Santa Clara were not
comparable to this center; which negates that as a reason for supporting it. Said he did not view
it as a theoretical issue, but looked at the work that has been done at other successful centers in
town; look at the parking analysis, at Cupertino village which on Sundays does not have
enough parking there; and look at Market Place and it’s not quite overcrowded but close. In
both cases there were reports by Hexagon saying don’t worry that regardless of what the city’s
zoning ordinance says, this is what will work. He said it was not the sort of thing that provided
confidence when reading the study that is supposed to reassure us that this will barely work
with any spaces less than required.
• Said the city’s restaurant standards are too light; if you want to look at a stand alone restaurant,
look at BJs at any time, they can’t even do open parking; they had to go to valet parking which
emphasizes, if anything, restaurant uses in the ordinance are insufficiently strict and since this
is a proposal to add additional entire restaurant space, he felt he could not support it the way it
was. He asked the Commissioners if anyone else agreed with him, that it appeared the
alternatives are either to not allow Building E or to allow Building E along with Building F but
to require that it not be food uses. According to his calculations, that would bring it back to
where the city’s zoning ordinance is. He said he was presenting it as two alternatives to
approving a project that he felt did not have enough parking to support it.
Vice Chair Miller:
• Staff has already agreed to eliminate the covenant on Condition 15; he supports the concept of
giving the applicant the latitude to make some changes to the light bar, to substitute wood for
metal trellises, and also to discuss the signing with staff. He said he was not opposed to
bringing any further issues to the DRC if staff and the applicant cannot work it out together.
• Said he was concerned about the Heart of the City exception; however the most positive thing
is the activation of the street front. He referred to the success of the Peets and Panera Breads
outdoor seating in front of the buildings and said there was value in that to make the exception.
• Said that parking was always a judgment call and he was sensitive to Com. Brophy’s concerns.
Most of the high demand parking seems to be generated by successful restaurant traffic, and
when comparing the Market Place to this center, there are at least 7 or 8 restaurants in the
Market Place, and only two in the subject center. The current use would support this ratio;
however, if the remaining Commissioners were interested in having a covenant that said if they
were going to come in for more restaurant parking, it would be reasonable that the Planning
Commission would have to review it.
Com. Brophy:
• Said that part of the situation with the center now is there are vast amounts of vacant space and
there are a number of other low traffic generating uses that are occupied. He was concerned
that using the formulas they have, that given what would be expected for these spaces, once
those spaces are filled, they may find that is not the case. It is well below what the zoning
ordinance requires and barely meets what he thought were pushing the numbers.
Vice Chair Miller:
• Said he understood the concern; 10 or 20 years ago, when all the spaces were filled, it was
difficult to remember a time when the center was underparked. It is a judgment call and he
would be more concerned if there were more restaurants on the site because restaurants do tend
to overflow parking. He said he did not see a problem with having some restriction that they
can’t arbitrarily add significant more restaurant space without coming back.
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Cupertino Planning Commission August 9, 2011 8
Gary Chao:
• Staff is proposing in the condition that any additional intensification, i.e., more restaurants
being proposed than what they are showing, require additional review by staff. Currently the
proposal is for the entire Building E to be restaurants. It is the worst case scenario and not
realistic; what you can do is back that number down a little; what if it is 2/3, or 50%; that is
something you can consider as opposed to just all retail.
Com. Brophy:
• Said it is already included in Condition 11 that if the parking is not working, they use valet
parking for the restaurant space. He said BJs had that as an alternative, although not ideal; and
he viewed BJs as a parking failure, not a success; and should not be used as a model.
• An option would be to limit the amount of food use because of the dramatic difference in
parking demand between food and non-food use. As a compromise, suggest limit Building E
to 50% food; it was suggested Building E be a non-food building because that would get us
just about down to what the zoning ordinance requires in terms of parking. If there is a desire
to try to work something, he said he would rather see Building E be no more than half food
with the option that the applicant could come back, if and when the center is fully built out. If
there is surplus parking, if he wanted to then convert either the remaining space in Building E
or space in the main building then it could be done at that time when there is actual evidence
that there is not a problem.
Gary Chao:
• Said a possible example to consider is the way that Market Place set up their condition, locking
in a percent of maximum restaurant for the center; when Building E is 50% occupied, staff
would have to come back with another assessment to demonstrate at that time the parking
demand on the ground.
Com. Brophy:
• Said if looking for a compromise solution, he would rather look at 50% with the option of the
owner coming back at a future time when the center is fully leased out and if there is surplus
parking.
Gary Chao:
• Relative to size of parking spaces, he said the Planning Code requires uniform stall size; with
no option of compact size; that is the current ordinance. The applicant indicated they were
using the medium size parking space.
Mark Creedon:
• Explained how the number of parking spaces is arrived at, what the parking analysis takes into
account, and factors to make sure there is some cushion. Will the center always have ample
parking anytime someone wants to arrive around the holiday season; probably not; 85% of the
time there will be parking available for them.
Com. Brophy:
• Said he was not concerned about holidays, but when he saw centers in town built on the advice
of the traffic consultant that they could safely ignore the zoning code; and they were crowded
every weekend, it struck him that a mistake was made, not that it should be business as usual.
Vice Chair Miller:
• We are talking about some kind of limitation on use of the space in Building E; is that
workable from your standpoint?
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Cupertino Planning Commission August 9, 2011 9
Mark Creedon:
• Said they would prefer to look at it over the entire center; which the staff report reflects,
because it provides flexibility for the owner to not have dark spaces. If there is a vacancy in
one part of the center, or if the amount of retail or restaurant/food use is limited, they may not
want to move to another part of the center; they may prefer that building; it is a better location
for food use.
• It is flexibility for the whole center, and he said they are in agreement with limiting it, and
don’t want to intensify the site any more than that. Staff quoted 15% over the whole center for
food use; they could never exceed that and would have to come back with a request to do that.
Vice Chair Miller:
• Asked where they were at in terms of the percentage of food space for the total center.
Gary Chao:
• 15%, assuming you are leasing Building E completely to restaurants.
Com. Brophy:
• Said he could support 10%; suggested that Building E be a maximum of 50% food.
Vice Chair Miller:
• Suggested that in the interest of giving the owner flexibility, they use that number to come out
with a percentage for the entire center. It works out to the most he can fill Building E with
now.
Com. Brophy:
• Suggested that the number not exceed existing restaurant uses plus Building F plus half of
Building E.
Gary Chao:
• This doesn’t mean that they can’t come back for additional restaurant; they can if they
demonstrate with evidence once everybody is situated and open and fully or significantly
leased.
Com. Brophy:
• Said he agreed with Vice Chair Miller’s comments about the architectural conditions.
Gary Chao:
• Asked if the Commission agreed with staff’s direction about the window; to work with the
applicant but not violate state laws regarding the French door condition.
Vice Chair Miller:
• Said he was not in favor of limiting the indoor restaurant seating space. The applicant said
there was a separate door for the service to go in and out easily without interfering with the
patron traffic going in and out the front door; therefore, he was opposed to reducing the
functionality of the restaurant.
Gary Chao:
• Suggested if that was the general concern, they don’t want to preclude them from being able to
logistically operate their interior floor layout. They would like the window to come down
further so that it looks like a storefront as opposed to a half wall; at least visually it looks retail
friendly or more activated so there is more visibility in and out. He felt they could work out a
condition that gives them the flexibility to work with the applicant to the maximum extent
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Cupertino Planning Commission August 9, 2011 10
possible to explore opening it up. However, if it doesn’t meet the applicant’s criteria, they
might consider just working another window design so it is stretched further down toward the
ground to give it that look.
Vice Chair Miller:
• Said he agreed; it would be a lot less convenient for people to eat outside if they had to go out
the main entrance.
Com. Brownley:
• Said he agreed with the discussion about opening up the space; but in the event it needs to be
curtailed, there is an extra entrance, and bring the windows down to make it more friendly.
Motion: Motion by Vice Chair Miller, second by Com. Brophy, and unanimously carried
4-0-0, Com. Sun absent, to approve Application DP-2011-03, ASA-2011-12,
EXC-2011-10, TR-2011-30 with the changes discussed
Chair Lee declared a short recess.
2. EXC-2011-08, INT-2011-01, Hillside Exception to allow the construction of a new,
TR-2011-22, EA-2011-08 3,704 sq. ft. single family residence with an approx. 1,189 Barre Barnes (WJB sq. ft. basement on slopes greater than 30% on a vacant
Canyon, LLC) lot; Request for a yard interpretation to interpret Cordova
Lot 167, Cordova Rd. Rd., instead of San Juan Road, as the front yard for a new Single family residence; Tree removal permit to allow the
Removal and replacements of protected 25% and 32”
diameter Coast Live Oak trees. Planning Commission
decision final unless appealed.
Colin Jung, Senior Planner, presented the staff report:
• Reviewed the application for the residential hillside exception for a new home, yard
interpretation to interpret Cordova Road as the front yard and tree removal permit for removal
and replacement of two Live Oak trees; as outlined in the staff report. He illustrated photos of
the various elevations of the proposed residence and reviewed the project site data.
• He reviewed the background of the item, including zoning consistency, front yard
interpretation, relocation of Cordova Road gate, tree removal and landscaping, design
considerations, geological review, meeting with surrounding neighbors and their concerns.
• Staff supports the applicant’s request to have the Cordova Road yard designated as the front
yard since the developable portion of the lot lies well below the San Juan Road grade and
vehicular access is not feasible without excessive grading, and tall retaining walls. Pedestrian
access is also difficult, with Cordova Road having a much easier access. The proposed
housing geometry is more compatible with Cordova Road as the designated front yard. The
gate conflicts with the proposed driveway; and Public Works agrees that the gate can be
moved further down Cordova Road without interfering with the available utilities on the street.
Staff recommends approval of the tree removal permit and replacement of two Live Oak trees.
Staff feels that a minor design change should be made to the three-story wall north of the
garage and a condition has been added to the resolution requiring the applicant to make the
minor design change at the building permit stage.
• As a result of the geological review completed by the applicant’s geologist and the city’s
geologist, it is recommended by the city geologist that the project can be approved from a
geotechnical standpoint, but is recommending at the building permit stage, there be a remedial
grading plan prepared to address the fill that has not moved, but should be remediated.
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Cupertino Planning Commission August 9, 2011 11
• He reviewed the concerns of adjacent neighbors, including impact of adjacent neighbors;
views through the property, retaining the Cordova Road street gate, what is being done to
address the additional storm drainage that will be generated from the property, and the current
deterioration of existing storm drainage improvements on Cordova Road. They were also
concerned about the geotechnical review, reviewing the past landscape activity which it has
done. There was a question about whether the public hearing notice included the O’Grady-
owned property; one was within the 300 foot radius, and the other was not; and there was also
a concern about the Oak tree removal; those concerns were responded to in the staff report.
• Staff recommends approval of the mitigated negative declaration and approval of the hillside
exception, interpretation and tree removal per the attached resolutions.
Staff answered questions regarding the application.
Barre Barnes, Applicant:
• Said he has built several homes on San Juan Road and is familiar with the soil, rain, etc. He
has hired two geologists, designed the house to remove the fill that is on it instead of taking it
out and bringing it back and causing more grading; and are removing the majority of the fill
that was placed on the lot. There is a foundation, the slab underneath, the basement and it is
also going to be on piers. They are working with staff and Public Works to do whatever is
needed relative to the water retention issue.
Chair Lee opened the public hearing.
Jennifer Griffin, Rancho Rinconada resident:
• Said she was aware the area had building rights that date back to the 1920s/30s. She addressed
the issues of the two Oak trees, the 25 inch tree appears to have problems and the 32 inch one
appears to be healthy. She commended the property owner for trying to save the 32 inch tree,
and suggested for replacement, they try to plant seedlings off the property of the same genus or
species.
Barbara Danny, speaking on behalf of a group including the Wests, Mr. Dunn, Mrs. Lam
and Caroline Anderson on San Juan Roads:
• Thanked staff for listening to neighbors concerns and answering them; they appreciate the
diligence that staff has paid to this item. The neighbors concur with the resolution 2011-8 with
the following recommendations with respect to the relocation of the gate on Cordova Road.
• Suggested adding the sentence to the resolution: “The gate shall remain closed during and
after construction”. She said there is ample access to the road from San Juan and they ask that
the developer and his contractors stay on the public portion of San Juan Road and not use the
private extension of San Juan. Also on the geotechnical review there was some discussion
about the city geologist and geotechnical representative and in their July 20th letter which
outlines their conditions, they said that they did not have a copy of the plans or cross sections
illustrating the extent of remedial grading; and they would like to be noticed when the city gets
that so they can look at the plans, because the drainage and grading are a major concern.
• On the relocated gate on Cordova Road, the road is too narrow and fragile for the gate to
remain open at any time, including during construction traffic. Because Cordova Road will
serve for drainage from Lot 167, they request that the Cordova Road berm be repaired and the
surface of the road be patched.
• Showed a variety of photos of drainage and the fragile condition of the road and impact of the
1982 slide on properties. In 1984 Council adopted resolution 6256 to put the gate across the
road because Cordova Road is so narrow and substandard and it is impassible to through
traffic. It has remained there for 27 years and is working.
• Said the group concurred with staff’s resolution 2011-8, and requested an additional sentence
that Cordova Road should remain closed during construction and after construction, because
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Cupertino Planning Commission August 9, 2011 12
the road is too narrow and fragile to handle the construction traffic. Additionally because of
the runoff and storm drain issues, they asked that the road be repaired and berm repaired also.
Annie Chyu, Cordova Road resident:
• Suggested that people visit the site and road to get a true picture of the danger in the area.
Said that it is a very dangerous area, and there have been many car accidents, and children ride
their bikes and skateboards in the area. If the trees are removed, it will release the dirt and
become a worse disaster, with mudslides. The residents would also like to have a retaining
wall behind the Oak trees for safety. She said the gate is necessary for everyone’s safety.
Wei Chyu, Cordova Road resident:
• Expressed concern about the mudslides as they cannot be controlled. He said the flood in the
street is enormous; and it is a dangerous area for cars, floods, mudslides and many people will
still have problems. The City should be cautious about approving permits for the work because
of the danger in the area.
Chair Lee closed the public hearing.
Colin Jung:
• Said that Public Works sent an email that the work relating to moving the gate and having it
remain closed; the road work for filling cracks along Cordova Road and repairing the berm; is
on their work list to be completed before the rainy season; including the repair of the asphalt
berm, and the slurry sealing of the cracks in the road.
• Relative to the outcome of the two Oak trees; he said there was a difference of opinion by the
two arborists on the second Oak; the applicant wants to try to preserve and retain the 32 inch
uphill Oak tree. The city arborist normally takes a very conservative view on trees and in this
particular case they didn’t feel that it could be preserved given the extent of the construction.
Staff is willing to give the applicant the benefit of the doubt to try and protect the tree. The
tree removal condition is that they strive to protect the tree itself; however, in the process of
going through the grading they need to make the site safe, there is still a remedial grading plan
that needs to be completed for the property.
• The arborist report indicated there had been some fill around the tree itself. The city arborist
indicated that he felt there was enough encroachment of the house within the drip line of the
Oak to make that preservation of that tree very problematic, even though it is doubtful whether
or not it will survive. If the applicant has to do more, not just grading, but put in storm water
improvements also which go up and around the property; he will not be required to return for
another public hearing, but will be required to find another suitable place on the property to
plant one or two more trees.
Gary Chao:
• Said it was important to understand with a new project given the foundation and the
remediation work, the better soil being put back, the basement and the piers going in, the
project itself is going to help stabilize the hill. There is some truth to the fact that the existing
trees hold soil. He said he felt it was one of the reasons the applicant is putting in a basement,
the retaining wall and piers underneath will hold the dirt or the hill up better than the current
lumpy situation.
Colin Jung:
• He addressed the planned drainage and storm water manipulation and control to benefit the
existing property and the neighboring properties.
• Said it was broken up into two types of drainage; there is no house there now, all the drainage
that is falling on that property is percolating into the ground. The storm drainage that the
neighbors are concerned about now is all the Legacy development that is happening, above on
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Cupertino Planning Commission August 9, 2011 13
San Juan Road; that particular corner San Juan and Cordova Roads is the low point right there;
San Juan Road comes in from above and it meets down there at that corner and that low point
is where it takes all the drainage from the street down Cordova Road. At that point the city put
the asphalt concrete berming in there to keep the drainage on the road and take it as far down
to Cordova Road as possible in order to pick up an underground storm outlet there. Some of
the improvements are falling apart and they need to fix it, which is obvious from the photos.
As far as development of the house, that is going to increase the storm flows because you are
creating impervious surface from the roof of the house, from the driveway and other
hardscapes surfaces over there.
• The applicant is required by law, C3 regulations, to detain or retain his contribution on his
property; the problem is it works fine in principle on the flat lands but when you get up in the
hillsides, it is not advisable to try to keep all that water in the soils itself, because it just
lubricates it and makes it more prone to destabilizing the slope. The civil engineer says is ok
we have these requirements, it doesn’t make a lot of sense to keep the water on the property
because we don’t want to create a landslide situation, as has happened in the past; so they want
to create a reservoir on the property.
• There is a piece of the property that is relatively flat, and similar to a giant pipe with no holes;
with one small outlet from it that is going to take water from it at a certain measured rate, and
the rest of that pipe during the peak storms is going to fill up with water; but the pipe itself is
going to be tens of feet long, 18 to 24 inches diameter and will fill up with water during the
peak storm; be measured and released at a measured pace after the peak flows because it is
designed to detain the water, not retain it on the property; detain it long enough so that the
streets out there can accept the flows once the peak storm period has passed.
Com. Brophy:
• Said from a planning perspective there really are not a lot of issues; the issues are more dealing
with engineering design and approval. Clearly the critical issue will come when building
permits are requested and the engineering department has to evaluate whether or not this
project can be built to modern standards.
• Suggested adding the sentence in Section 3, No. 3 that “the gate shall remained closed during
and after construction”. In addition, add a paragraph where appropriate that neighbors who
would be notified in the normal process of planning also will receive a notice of remedial
grading plan so they can make any necessary comments to the city engineer.
Gary Chao:
• Said it was a good idea given the sensitivity of the subject. Staff would propose, that prior to
language to be added, a general condition that says prior to issuance of building permit,
regarding the remediation plans being mentioned in the geologist recommendation, when the
plans become available, they be made available to the city for review and approval and be
reviewed by the city geologist. At the same time staff will notify the public who are interested
who have spoken and provided input, that they will be available for viewing, Staff can
facilitate that. (Condition No. 2, hillside exception)
• Condition No. 11 Public Works discussing their criteria and requirements regarding drainage:
The applicant would have to demonstrate to the satisfaction of the city engineer, covering
many of the things that staff was describing; in short it is meant to not increase the impact
that’s based on the project being proposed out onto the street system, the overall system.
• He read an e-mail from Chad Mosley, the Public Works engineer: “What is the Public Works
Dept. going to do in response to the concerns raised by the neighbors … “The city has added
the portion of Cordova Road in question to its current row crack ceiling program; this program
is currently in progress and the portion that is being discussed on Cordova should be sealed
within the month. This would address some of the neighbors’ concerns in the photos shown
with the cracks going down the middle of the street. The city also has added the repair of
asphalt berm to the list of work order items that will be addressed prior to the start of the rainy
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Cupertino Planning Commission August 9, 2011 14
season. The city will additionally repair a couple of potholes along Cordova Road at the same
time that the asphalt berm is being repaired; the city will request the trash company to access
10690 Cordova Road from San Juan instead of driving along portion of Cordova Road in
question; this will reduce the number of large heavy truck trips along the stretch of the road;
and Public Works confirmed once again that the gate is to remain closed during and after
construction.”
Vice Chair Miller:
• Since most of the issues center around plans that haven’t been done yet, he asked staff if they
should be looking at this again after the plans are done?
Gary Chao:
• Said he did not feel the Commission would have to look at it again; many times the city
geologist is comfortable enough with the information they were given providing
recommendation for approval. The condition will cover the fact that the plan will be reviewed
by the city engineer as well as the city consulting geologist to make sure that it is satisfactory
and that will be translated into the structural consideration during the plan check for the
Building Dept. Those are engineering issues and the geologist and city engineers will make
sure it is done properly and there is already a condition that covers that; it has to be done prior
to issuance of the building permit. Staff is comfortable that they can take care of that and
won’t allow the project to proceed unless it is all covered.
Vice Chair Miller:
• Requested that staff bring the plans back to the Planning Commission.
Gary Chao:
• Said that the information available to the neighbors will be brought back to the Planning
Commission as an item of interest for their review.
Vice Chair Miller:
• Said that the pipe is designed to retain water and let it out slowly; what happens when there is
a big storm and the pipe fills up; where does the overflow go?
Colin Jung:
• Responded that it is a very large pipe and the city storm drain system is designed for a 10 year
storm.
Vice Chair Miller:
• Said it was not what was described and wanted to clarify that staff said that on the property
there is a pipe which is designed to allow the water to flow out slowly; not the city’s system,
but the system on the site itself. If there is restricted outflow and there is unlimited inflow, the
possibility of overflowing exists. He questioned again where the overflow goes?
Gary Chao:
• The understanding is that the project is not required nor would it be appropriate for them to try
to address. One of the existing problems in time when there is a big storm and rain for
extended period of time, there are times where it is going to exceed the capacity of the system.
Colin Jung:
• If you have a storm that large you won’t worry about the outflow from this particular property;
it will be all the outflow from every other property on San Juan Road.
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Cupertino Planning Commission August 9, 2011 15
Vice Chair Miller:
• Said he wanted to know what the back up plan is for where the overflow goes.
Colin Jung:
• If the pipe backs up, it would go back up through the piping system and would overflow onto
the soil around it, potentially softening the soil to the point where it slides.
Vice Chair Miller:
• Said his concern was there are questions which need to be answered before it is approved. The
next issue is, it seems possible that the water going out onto the street could make a right turn
into the driveway of the next door neighbor; so part of the solution has to address how to
prevent the water from entering the street and going into that driveway; and it is sloped away
from the driveway, but it is not clear that it is sufficient.
Gary Chao:
• Condition 11, Public Works is attempting to have a condition crafted to address that; it talks
about the storm drain system designed so that it won’t increase one percent of the flood water
surface elevation of existing storm water facilities. The last part of the condition states that
any storm water overflow or surface sheeting should be directed away from the neighboring
private property into the public right of way as much as reasonably possible. A lot of it is
existing conditions and there is always going to be the potential of 100 year storm in which
case all systems will fail; that will be the case with or without the project. The project shall not
add toward, further impact the existing system; in some ways it is going to help with the
peripheral, the surrounding area by some of the improvements around the perimeter but it’s not
going to further impact what is out there now.
Vice Chair Miller:
• Reiterated that he would like more than the general language; something very specific; that
somewhere in the plan the fact is addressed that there is the potential the slide is going to add
to the water going down the street. It is adding to a potential problem for the neighbor next
door and that neighbor’s driveway specifically needs to be addressed by an engineer. He
recommended language that states “and specifically the driveway to the east ….”
Gary Chao:
• Proposed the addition of verbiage under Condition 11 and discuss it to the extent where the
applicant shall work with city engineer and city geologist to address the potential overflow
scenario and come up with a solution that is feasible and acceptable to the geologist and city
engineer. Said they would be happy to have that conversation and make sure that at the
minimum it is being looked at and the city geologist and city engineer have given thought
about that. If it is physically impractical to do anything other than what they have out there, at
least they will have to come to that conclusion and that issue will be thought out.
• Staff will address the issue of the trash collection to the city engineer; and convey the concern
to the city engineer and hopefully facilitate conversation for them to hear Mrs. Lam’s concern
(10690 San Juan Road).
• Relative to Mrs. Lam’s question if there would be privacy landscaping, he said it is only
required of R1 single family homes, but the applicant can be asked if he would be willing to
plant some shrubs or trees to help further that effort. It is a good idea, and if the applicant is
okay with it, the Commission has the ability to require those things if they find it is relevant to
the context and concerns being raised.
Vice Chair Miller:
• The additional landscaping could serve not only as privacy landscaping, but also to retain the
water on the site and stabilize the hill.
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Cupertino Planning Commission August 9, 2011 16
Gary Chao:
• If the Planning Commission desires, a condition could be added that the applicant would have
to provide a landscaping plan to the satisfaction of the Director of Community Development
which includes addressing providing additional shrubs or trees where appropriate; perhaps
with a recommendation from the city arborist to stabilize and help screen visibility.
Vice Chair Miller:
• Pointed out that the staff is requiring that the applicant put four trees on the property to replace
the two that are potentially not going to be there anymore, and there is no reason why the four
trees can’t be planted on the northern side of the property to be part of the landscaping plan to
screen and also to help stabilize.
Colin Jung summarized discussion of conditions of approval and revisions:
• Relocation of the Cordova Road street gate: Add a clause that gate shall be kept closed during
and after construction; that is modification of Condition No. 3 of the hillside exception.
• Geotechnical review: Add another paragraph that interested neighbors and the Planning
Commission will be notified of availability of the remedial grading plan once it becomes
available; staff will provide a copy to the Planning Commission.
• Public Works Conditions No. 11: Last sentence referring to any storm water, overflows or
surface sheeting shall be directed away from neighboring private properties, particularly 10690
Cordova Road and to the public right-of-way as much as reasonably possible.
• Tree removal approval: Referring to the required tree replacements it talks about the tree shall
be planted prior to final occupancy; insert a clause that says the required replacement trees
primary consideration should be given to planting the trees along the north property line next
to the abutting neighbors.
Motion: Motion by Vice Chair Miller, second by Com. Brownley, and unanimously carried
4-0-0, Com. Sun absent, to approve EXC-2011-08, INT-2011-01, TR-2011-22, and
EA-2011-08; with the gates to remain closed during and after construction; the
neighbors will be notified when the drainage and grading plans are available and
copies will be made available to the Planning Commission; the applicant will
provide some type of landscape screening plan on the north side of the property to
include the replacement trees and the neighbor immediately to the north of the
potential for water draining down her driveway and into her property will be
specifically addressed; as part of the drainage plan the question will be addressed
as to if the pipes should overflow, where does the water overflow go.
Motion: Motion by Vice Chair Miller, second by Com. Brownley, and unanimously carried
4-0-0, Com. Sun absent, to send a Minute Order to Public Works Department that
the road will be repaired and the berm will be repaired prior to October 15, 2011
OLD BUSINESS: None
NEW BUSINESS: None
REPORT OF THE PLANNING COMMISSION
ENVIRONMENTAL REVIEW COMMITTEE: Discussed Cordova Road at meeting.
HOUSING COMMISSION:
• Com. Brownley reported that the Commission has been visiting a variety of projects around
the County relative to affordable housing projects; and discussed Habitat for Humanity project
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Cupertino Planning Commission August 9, 2011 17
that came before the Planning Commission.
MAYOR’S MONTHLY MEETING:
Com. Brownley reported:
• Bicycle and Pedestrian Committee has been working on pedestrian plan; completed the bike
plan; working on storm drain project around Monta Vista area and looking for space for
students along Orange Ave., trying to improve bike education in community; still working on
safe routes to schools and communicating with school on safe pedestrian and bicycle routes.
• Teen Commission has first meeting on September 14th; actively involved in anti-tobacco
conference; planning on having three track on that beginning early next year; also working on
Walk One Week program.
• Public Safety Commission is also working on Walk and Bike to School, and analyzing spring
data and will present results at next meeting; bike racks at Kennedy and working on Alert SCC
with schools.
• TIC had initial input on their work plan and has been notified that ATT tower on Results Way
is still pending; 4DYMax provided by Clear is in operation; currently emphasis on computers,
but should be eligible for computers and cell phones.
• Parks and Rec Commission working on work plan, including McClellan Ranch Master Plan,
still working on ducks and geese; Stevens Creek Phase 2 Trail is under way and also working
with Teen Com. with Walk One Week program.
• Library Com. is starting Sept. 1; has received funding from city to increase library hours an
additional 6 hours; conducting Poet Laureate interviews and should provide info in August;
working with Library Director to provide green practices and working with TIC and looking at
collaborative efforts with the Library and technology.
ECONOMIC DEVELOPMENT COMMITTEE: Meeting August 10th.
REPORT OF DIRECTOR OF COMMUNITY DEVELOPMENT:
• Gary Chao reported that on August 2nd, the City Council approved the R1 ordinance, 90%
consistent with Planning Commission recommendation with some twists.
• He reported that Kelly Kline accepted a job with the City of Fremont.
Adjournment: The meeting was adjourned to the next regular Planning Commission meeting
scheduled for August 23, 2011 at 6:45 p.m.
Respectfully Submitted: /s/Elizabeth Ellis
Elizabeth Ellis, Recording Secretary
20
PLANNING COMMISSION STAFF REPORT
Agenda Item No. 2 Agenda Date: September 13, 2011
Application: EXC-2011-09, EA-2011-10
Applicant: Jonathan Fales, Via Builders
Property Owner: Mark and Barbara McCamish
Property Location: 22362 Regnart Road (APN 366-45-014)
APPLICATION SUMMARY:
Residential Hillside Exception to allow an approximately 1,266 square foot one-story addition to an
existing one-story, single-family residence located on a prominent ridgeline in the RHS-120 (Residential
Hillside, minimum 120,000 sf) zoning district.
RECOMMENDATION:
Staff recommends that the Planning Commission:
1. Adopt the Mitigated Negative Declaration (EA-2011-010) as recommended by the Environmental
Review Committee at its meeting of September 1, 2011 (See Attachment 5); and
2. Approve the Residential Hillside Exception (EXC-2011-09) in accordance with the Model
Resolution (See Attachment 1).
PROJECT DATA:
Project Feature Existing/Proposed Ordinance Allowance
Lot Size (sq. ft.) 141,354 Min. 120,000
Residential Building Square Footage (sq. ft.)
Existing Residence 1,964 -
New Residential Addition 1,163 -
New Garage and Shop Addition 699 -
Existing Garage (to be removed) 596 (to be removed)
Existing Shed 360 -
Total Existing and Proposed 4,186 6,500
Building Setbacks (feet) 1st Floor
Proposed Front 163 10
Proposed Sides 47 west, 95 east 10
Rear 345 20
Building Height (feet) 16 30
Grading Quantity (cubic yard) 35 2,500
Parking (space) 4 4
OFFICE OF COMMUNITY DEVELOPMENT
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
(408) 777-3308 • FAX (408) 777-3333 • planning@cupertino.org
21
Jonathan Fales (Via Builders) EXC-2011-09 September 13, 2011
BACKGROUND:
On December 13, 2005, a hillside exception was approved on the subject property to allow the
construction of a new 6,500 square foot, two-level residence on a prominent ridgeline and on slopes
greater than 30%. However, the residence was not constructed, and the entitlement expired in December
2007.
In June of 2011, Jonathan Fales representing the property owners, Mark and Barbara McCamish,
submitted an application requesting a new hillside exception to allow a net 1,266 square foot one-story
addition to an existing residence. The project also includes the removal of an existing 596 square foot
garage area and the removal of 491 square feet of existing carport/front porch area that is not counted in
the square footage.
The subject property is located at the terminus of Regnart Road and is accessed by a private road to the
northeast continuing from the terminus to serve this home and an adjacent home to the southwest. The
site is surrounded by single-family residences in the RHS zoning district to the north and south, open
space area to the northwest, and steep hillsides to the east and west. There is also an existing 18-foot wide
private road that runs through the property to provide emergency service access to this site and the
surrounding properties.
The new proposed addition will be located on the existing flat pad area (less than 30% slope) of the
property. A hillside exception is required given that the property is located on a prominent ridgeline (See
Attachment 7) as defined by the City's Residential Hillside (RHS) Zoning Ordinance (Section 19.40.050I).
DISCUSSION:
Prominent Ridgeline
The proposed addition will be located on the southern and eastern portion of the existing residence.
Beyond this area are the steep hillsides, which are east and west-facing hillsides.
The applicant has submitted a visibility analysis (See Attachment 2), including photographs from six view
points along the valley floor. The photographs indicate that the addition will not be visible from the valley
floor. Therefore, the proposed one-story addition will not create visibility impacts along the prominent
ridgeline.
Tree Removal and Landscaping
The proposed addition will entail the removal of only one non-specimen 8-inch loquat tree that is planted
within a landscape area adjacent to the existing garage and covered porch along the southern elevation of
the existing residence. This tree is not subject to the City’s tree removal application requirements and may
be removed.
The proposed new landscaping around the project residence is minimal (under 2,500 square feet) and will
not trigger the City’s water efficiency landscaping requirements. The proposed plans indicate pockets of
new landscaping will be added along the southern and eastern sides of the property, and that the majority
of the existing landscaping around the residence will remain. The property owners will be required to
submit a landscape checklist to confirm final landscaping details prior to building permit issuance.
Design Considerations
The design of the proposed addition will be consistent with the existing residence in terms of building
form, color and material. The front of the residence will be highlighted by a new porch entry along the
southern elevation of the residence. The proposed building colors are muted earth tones with low light
reflectance values (< 60 LRV) consistent with RHS design standards.
22
Jonathan Fales (Via Builders) EXC-2011-09 September 13, 2011
Geological Review
A supplemental geotechnical report (See Attachment 3) was prepared by GeoForensics, Inc. (dated May
16, 2011). The report concludes that the flat development area of the addition is not considered within the
zone potentially subject to seismically induced landslide based upon new maps published by the State of
California. Given that the building codes have changed to require new seismic design factors for
construction, the project will be required to comply with the new 2010 building code to minimize potential
seismic damage.
The City’s Geotechnical Consultant, Cotton Shires and Associates, Inc., reviewed the supplemental
geotechnical report (See Attachment 4) and recommends the project approval with conditions that have
been incorporated into the resolution (please see Attachment 1, Conditions 2a and 2b).
Septic System
The property owners intend to continue to use the existing septic system for their sewer needs. The Santa
Clara County Department of Environmental Health will require the septic system be upgraded to current
code. This has been added as a condition of approval for the project.
Neighbor Comments
Staff has received an email from the Regnart Ridge Homeowners Association (HOA) (See Attachment 6)
stating that their architectural review committee, as well as other members of the HOA, is supportive of
this project.
Mitigated Negative Declaration
On September 1, 2011, the Environmental Review Committee reviewed the project (See Attachment 5) and
recommended that the Planning Commission adopt a Mitigated Negative Declaration.
The Mitigated Negative Declaration includes mitigation measures relating to geology as recommended by
the applicant's and the City's geologists. These measures have also been added as conditions of approval
to the project.
Prepared by: Aki Honda Snelling, AICP, Senior Planner
Reviewed by Approved by
/s/ Gary Chao /s/ Aarti Shrivastava
Gary Chao Aarti Shrivastava
City Planner Community Development Director
ATTACHMENTS:
Attachment 1: Draft resolution EXC-2011-09
Attachment 2: Visibility Analysis consisting of photographs from the valley floor
Attachment 3: GeoForensics, Inc. geotechnical report dated May 16, 2011
Attachment 4: Cotton Shires and Associates, Inc. geotechnical peer review report dated July 20, 2011
Attachment 5: Initial Study, Mitigated Negative Declaration
Attachment 6: Regnart Ridge Homeowners Association email supporting the project
Attachment 7: Prominent Ridgeline Map highlighted area in pink
Attachment 8: Plan Set
G\Planning\PDREPORT\2011excreports\EXC-2011-09.doc
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EXC-2011-09
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
DRAFT RESOLUTION
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
APPROVING A HILLSIDE EXCEPTION TO ALLOW THE CONSTRUCTION OF A 1,266 SQUARE
FOOT, ONE-STORY ADDITION TO AN EXISTING ONE-STORY RESIDENCE ON A PROMINENT
RIDGELINE LOCATED AT 22362 REGNART ROAD
SECTION I: PROJECT DESCRIPTION
Application No.: EXC-2011-09 (EA-2011-10)
Applicant: Jonathan Fales, Via Builders
Property Owner: Mark and Barbara McCamish
Location: 22362 Regnart Road, APN: 366-45-014
SECTION II: FINDINGS FOR EXCEPTION
WHEREAS, the Planning Commission of the City of Cupertino received an application for a Hillside
Exception, as described on Section I of this Resolution; and
WHEREAS, the Environmental Review Committee (ERC) has recommended adoption of a Mitigated
Negative Declaration at its meeting of September 1, 2011; and
WHEREAS, the necessary notices have been given in accordance with the Procedural Ordinance of the
City of Cupertino, and the Planning Commission has held one or more Public Hearings on this matter;
and
WHEREAS, the applicant has met the burden of proof required to support this application, and has
satisfied the following requirements:
1. The proposed development will neither be injurious to property or improvements in the area
nor be detrimental to the public health and safety.
2. The proposed development will not create a hazardous condition for pedestrian or vehicular
traffic.
3. The proposed development has legal access to public streets and public services are available
to serve the development.
4. The proposed development requires an exception, which involves the least modification of, or
deviation from, the development regulations prescribed in this chapter necessary to
accomplish a reasonable use of the parcel.
5. All alternative locations for development on the parcel have been considered and have been
found to create greater environmental impacts than the location of the proposed
development.
6. The proposed development does not consist of structures on or near known geological or
environmental hazards that have been determined by expert testimony to be unsafe or
hazardous to structures or persons residing therein.
7. The proposed development includes grading and drainage plans that will ensure that erosion
and scarring of the hillsides caused by necessary construction of the housing site and
improvements will be minimized.
8. The proposed development consists of structures incorporating designs, colors, materials,
and outdoor lighting which blend with the natural hillside environment and which are
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Draft Resolution EXC-2011-09 September 13, 2011
designed in such a manner as to reduce the effective visible mass, including building height,
as much as possible without creating other negative environmental impacts.
9. The proposed development does not consist of structures which would disrupt the natural
silhouette of ridgelines as viewed from established vantage points on the valley floors.
10. The proposed development is located on the parcel as far as possible from public open space
preserves or parks (if visible therefrom), riparian corridors, and wildlife habitats unless such
location will create other, more negative environmental impacts.
11. The proposed development is otherwise consistent with the City's General Plan and with the
purposes of Chapter 19.40, Residential Hillside (RHS) Zones, of the Cupertino Municipal
Code, as described in Section 19.40.010.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of the initial study, Environmental Review Committee recommendation,
maps, facts, exhibits, testimony and other evidence submitted in this matter, the Commission finds that
the project with mitigations incorporated will not have a significant environmental impact and adopts a
mitigated negative declaration (file no. EA-2011-10), and application no. EXC-2011-09 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 EXC-2011-09, as set forth in the
Minutes of the Planning Commission Meeting of September 13, 2011, and are incorporated by reference
herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set titled: “Addition & Remodel form Mark and Barbara
McCamish, 22362 Regnart Road, Cupertino, CA 95014,” dated August 12, 2011 consisting of 15
pages labeled A1 and A1.5 through A15, except as may be amended by the conditions contained
in this resolution.
2. GEOTECHNICAL REVIEW
Prior to building permit approval, the applicant shall comply with the recommendations outlined
in the updated geotechnical report prepared by GeoForensics, Inc. dated May 16, 2011, and in the
Cotton Shires & Associates, Inc. Geologic Peer Review Letter dated July 20, 2011, pertaining to
the proposed development, including the following:
a. Geotechnical Plan Review – The applicant’s geotechnical consultant should review and
approve all geotechnical aspects of the project building plans (i.e., site preparation and
grading, site drainage improvements and design parameters for foundations) to ensure that
their recommendations have been properly incorporated.
The results of the plan review should be summarized by the geotechnical consultant in a
letter and submitted to the City Engineer along with other documentation for building permit
plan check.
b. Geotechnical Construction Inspections – The geotechnical consultant should inspect, test (as
needed) and approve all geotechnical aspects of the project construction. The inspections
should include, but not necessarily be limited to: site preparation and grading, site surface
and subsurface drainage improvements, and excavations for foundations and retaining walls
prior to the placement of steel and concrete.
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Draft Resolution EXC-2011-09 September 13, 2011
The results of these inspections and the as-built conditions of the project should be described
by the geotechnical consultant in a letter and submitted to the City Engineer for review prior
to final (granting of occupancy) project approval.
3. CONSTRUCTION MANAGEMENT PLAN
The applicant shall provide with the building permit plan set, a construction management plan
that provides the following information details:
• A recitation of the City’s standards for noise control and construction hours
• A site plan illustrating the locations for construction equipment and materials, porta-
potties, construction/security office trailer (if any) and worker parking.
• Location of signage for name and telephone number of complaint coordinator.
4. CONSTRUCTION NOISE/HOURS OF OPERATION
Construction on the property shall comply with the City’s Community Noise Ordinance (Chapter
10.48 of the Cupertino Municipal Code) for requirements pertaining to construction noise and
hours of operation.
5. SEPTIC SYSTEM
Prior to final occupancy, the applicant/property owner shall be required to comply with the
requirements of the Santa Clara County Department of Environmental Health for use of a septic
system to serve the property, including requirements to upgrade the septic system to current
Santa Clara County code requirements.
6. COLORS
The building colors of the residence shall comply with RHS design standards in that they are
muted vegetative or earth tones with low light reflectance values (< 60 LRV).
7. 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, and any relevant easements and/or construction records. Any misrepresentation of any
property data may invalidate this approval and may require additional review.
8. LANDSCAPE CHECKLIST
Prior to issuance of building permits, the applicant shall submit a Landscape Checklist in
accordance with the City’s Landscape Ordinance (Chapter 14.15 of the Cupertino Municipal
Code). Should any new landscaping on site exceed 2,500 square feet, the applicant shall be
required to comply with the requirements of the City’s Landscape Ordinance.
9. 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.
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Draft Resolution EXC-2011-09 September 13, 2011
SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS DEPARTMENT
10. STREET WIDENING
Public street widening and dedications shall be provided in accordance with City Standards and
specifications and as required by the City Engineer.
11. CURB AND GUTTER IMPROVEMENTS
Curbs and gutters, sidewalks and related structures shall be installed in accordance with grades
and standards as specified by the City Engineer.
12. STREET LIGHTING INSTALLATION
Street lighting shall be installed and shall be as approved by the City Engineer. Lighting fixtures
shall be positioned so as to preclude glare and other forms of visual interference to adjoining
properties, and shall be no higher than the maximum height permitted by the zone in which the
site is located.
13. GRADING
Grading shall be as approved and required by the City Engineer in accordance with Chapter
16.08 of the Cupertino Municipal Code. 401 Certifications and 404 permits maybe required.
Please contact Army Corp of Engineers and/or Regional Water Quality Control Board as
appropriate.
14. DRAINAGE
Drainage shall be provided to the satisfaction of the City Engineer. Hydrology and pre- and
post-development hydraulic calculations must be provided to indicate whether additional storm
water control measures are to be constructed or renovated. The storm drain system may include,
but is not limited to, subsurface storage of peak stormwater flows (as needed), bioretention
basins, vegetated swales, and hydrodynamic separators to reduce the amount of runoff from the
site and improve water quality. The storm drain system shall be designed to detain water on-site
(e.g., via buried pipes, retention systems or other approved systems and improvements) as
necessary to avoid an increase of the one percent flood water surface elevation, to the satisfaction
of the City Engineer. Any storm water overflows or surface sheeting should be directed away
from neighboring private properties and to the public right of way as much as reasonably
possible.
15. UNDERGROUND UTILITIES
The developer shall comply with the requirements of the Underground Utilities Ordinance No.
331 and other related Ordinances and regulations of the City of Cupertino, and shall coordinate
with affected utility providers for installation of underground utility devices. The developer
shall submit detailed plans showing utility underground provisions. Said plans shall be subject
to prior approval of the affected Utility provider and the City Engineer.
16. IMPROVEMENT AGREEMENT
The project developer shall enter into a development agreement with the City of Cupertino
providing for payment of fees, including but not limited to checking and inspection fees, storm
drain fees, park dedication fees and fees for under grounding of utilities. Said agreement shall be
executed prior to issuance of construction permits
Fees:
a. Checking & Inspection Fees: $ Per current fee schedule ($2,468.00 or 5%)
b. Grading Permit: $ Per current fee schedule ($2,217.00 or 5%)
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Draft Resolution EXC-2011-09 September 13, 2011
c. Development Maintenance Deposit: $ 1,000.00
d. Storm Drainage Fee: $ TBD
e. Power Cost: **
f. Map Checking Fees: $ Per current fee schedule (N/A)
g. Park Fees: $ Per current fee schedule (N/A)
h. Street Tree By Developer
** Based on the latest effective PG&E rate schedule approved by the PUC
Bonds:
Faithful Performance Bond: 100% of Off-site and On-site Improvements
Labor & Material Bond: 100% of Off-site and On-site Improvement
On-site Grading Bond: 100% of site improvements.
-The fees described above are imposed based upon the current fee schedule adopted by the
City Council. However, the fees imposed herein may be modified at the time of recordation of
a final map or issuance of a building permit in the event of said change or changes, the fees
changed at that time will reflect the then current fee schedule.
17. TRANSFORMERS
Electrical transformers, telephone vaults and similar above ground equipment enclosures shall be
screened with fencing and landscaping or located underground such that said equipment is not
visible from public street areas. The transformer shall not be located in the front or side building
setback area.
18. BEST MANAGEMENT PRACTICES
Utilize Best Management Practices (BMPs), as required by the State Water Resources Control
Board, for construction activity, which disturbs soil. BMP plans shall be included in grading and
street improvement plans.
19. NPDES CONSTRUCTION GENERAL PERMIT
When and where it is required by the State Water Resources Control Board (SWRCB), the
developer must obtain a Notice of Intent (NOI) from the SWRCB, which encompasses
preparation of a Storm Water Pollution Prevention Plan (SWPPP), use of construction Best
Management Practices (BMPs) to control storm water runoff quality, and BMP inspection and
maintenance.
20. C.3 REQUIREMENTS
C.3 regulated improvements are required for all projects creating and/or replacing 10,000 S.F. or
more of impervious surface (collectively over the entire project site). The developer shall reserve
a minimum of 4% of developable surface area for the placement of low impact development
measures, for storm water treatment, on the tentative map, unless an alternative storm water
treatment plan, that satisfies C.3 requirements, is approved by the City Engineer.
The developer must include the use and maintenance of site design, source control and storm
water treatment Best Management Practices (BMPs), which must be designed per approved
numeric sizing criteria. A Storm Water Management Plan, Storm Water Facilities Easement
Agreement, Storm Water Facilities Operation and Maintenance Agreement, and certification of
ongoing operation and maintenance of treatment BMPs are each required.
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Draft Resolution EXC-2011-09 September 13, 2011
All storm water management plans are required to obtain certification from a City approved
third party reviewer.
21. EROSION CONTROL PLAN
The developer must provide an approved erosion control plan by a Registered Civil Engineer.
This plan should include all erosion control measures used to retain materials on site. Erosion
control notes shall be stated on the plans.
22. WORK SCHEDULE
Every 6 months, the developer shall submit a work schedule to the City to show the timetable for
all grading/erosion control work in conjunction with this project.
23. OPERATIONS & MAINTENANCE AGREEMENT
The developer shall enter into an Operations & Maintenance Agreement with the City prior to
final occupancy. The Agreement shall include the operation and maintenance for non-standard
appurtenances in the public road right-of-way that may include, but is not limited to, sidewalk,
pavers, and street lights.
24. TRAFFIC SIGNS
Traffic control signs shall be placed at locations specified by the City.
25. TRASH ENCLOSURES
The trash enclosure plan must be designed to the satisfaction of the Environmental Programs
Manager. Clearance by the Public Works Department is needed prior to obtaining a building
permit.
26. REFUSE TRUCK ACCESS
The developer must obtain clearance from the Environmental Programs Manager in regards to
refuse truck access for the proposed development.
27. STREET TREES
Street trees shall be planted within the Public Right of Way to the satisfaction of the City
Engineer and shall be of a type approved by the City in accordance with Ordinance No. 125.
28. FIRE PROTECTION
Fire sprinklers shall be installed in any new construction to the approval of the City.
29. SANTA CLARA COUNTY FIRE DEPARTMENT
A letter of clearance for the project shall be obtained from the Santa Clara County Fire
Department prior to issuance of building permits.
30. FIRE HYDRANT
Fire hydrants shall be located as required by the City and Santa Clara County Fire Department as
needed.
31. SAN JOSE WATER COMPANY CLEARANCE
Provide San Jose Water Company approval before issuance of a building permit.
32. DEDICATION OF WATERLINES
The developer shall dedicate to the City all waterlines and appurtenances installed to City
Standards and shall reach an agreement with San Jose Water Company for water service to the
subject development.
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Draft Resolution EXC-2011-09 September 13, 2011
33. SANITARY DISTRICT
A letter of clearance for the project shall be obtained from the Cupertino Sanitary District prior to
issuance of building permits.
34. UTILITY EASEMENTS
Clearance approvals from the agencies with easements on the property (including PG&E, PacBell,
and California Water Company, and/or equivalent agencies) will be required prior to issuance of
building permits.
35. STREAMSIDE PERMIT
Prior to issuance of a building permit, the developer shall provide plans and information that
satisfies the requirements of the Stream Side Permit as set forth by the Santa Clara Valley Water
Resources Protection Collaborative. These items include, but are not limited to, topographic
survey, specific measures to protect streams and/or waterbodies from water quality impacts,
coordination with all interested jurisdictional agencies, etc.
PASSED AND ADOPTED this 13th day of September 2011, at a Regular Meeting of the Planning
Commission of the City of Cupertino by the following roll call vote:
AYES: COMMISSIONERS:
NOES: COMMISSIONERS:
ABSTAIN: COMMISSIONERS:
ABSENT: COMMISSIONERS:
ATTEST: APPROVED:
/s/Gary Chao /s/Winnie Lee
Gary Chao Winnie Lee, Chair
City Planner Planning Commission
G:\Planning\PDREPORT\RES\EXC-2011-09res.doc
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