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35. Moxley property~~ City of Cupertino 10300 Torre Avenue Cupertino, CA' 95014 (408} 777-3308 Fax: (408} 777-3333 CUPERTINO Agenda Item No. • ~~ Community Development Department Summary Agenda Date: December 18, 2007 SUBJECT AND ISSUE: Receive a report on fine former Moxley property on Lindy Lane regarding tree planting and driveway improvements. RECOMMENDATION: .,y That the City Council direct staff to continue to monitor and enforce the replanting of seven trees on the former Moxley property and driveway improvements on Lindy Lane. BACKGROUND: The City Council received a memorandum dated December 5, 2007 regarding the Lindy Lane development status (enclosed). The status of the tree planting at that time was that Bret Moxley, the former owner of the property, agreed to plant five oak trees on Lot B (known as Lot 2 in the subdivision). The current owners of Lot C (Lot 3} paid a deposit for David Babby, Cupertino s consulting arborist, to advise on locations to plant two trees, as well as evaluate several other trees on the property. As detailed in the attached memo and map, in a November 13, 2007, letter, the owner of Lot A was directed by the City to proceed with all haste to install required drainage improvements. At the time of this writing, that owner has responded, and is xeady to move ahead with the required improvements. Because time is of the essence, and in order to further expedite a more comprehensive solution to the drainage problems stemming from the steep private driveway, the City is moving ahead with its own contractor to install drainage improvements at the base of the driveway. The cost of the improvements will be reimbursed through conditions placed on the development permits of Lots B, D and E, and, if necessary, by the securities submitted by Lot A. DISCUSSION: Lot B/Lot 2: The five oak trees have been planted by Mr. Moxley. However, no irrigation has been provided, and Mr. Moxley indicated to the current property owners that drip irrigation would be installed shortly. However, Mr. Moxley was previously 35-1 Application Report on the former Moxley property tree planting Page 2 provided with specific irrigation requirements from Barrie Coate, Cupertino s previous consulting arborist, that 10 gallons of water per 1" of trunk diameter be applied per irrigation. Staff will follow up with Mr. Moxley as to when the irrigation will be installed and its adequacy in providing the water quantity needed. Lot C/Lot 3: Staff is meeting with David Babby and Lot 3 property owners on Wednesday, December 12 to discuss locations for planting two additional trees and to review the state of several trees on site. Staff remains confident that all the tree issues on this lot are being addressed and will be resolved. As of this writing, significant rainfall has yet to occux locally. But, as mentioned in the attached memo, City staff will attempt to observe and videotape what actually occurs on the roadway to help make sure that previous erosion and drainage problems can be as fully addressed as possible. FISCAL IMPACT: Although the City will expend funds to expedite installation of drainage improvements, the costs are intended to be fully reimbursed by conditions placed on the development permits of the currently developing and soon to develop properties mentioned in the attached memo. Prepared by: Ciddy Wordell, City Planner and Glenn Goepfert, Assistant Public Works Director Director, Community Development Approved by: David W. Knapp City Manager G~lanrang/pdreport/c~007/Report ox Mox~ property I2-18-07 Glenn Goepfert, Assistant Director, Public Works 35-2 EXHIBITS BEGIN HERE ~C I z 1 ~hlc ~ ~~` 3f MEMORANDUM INTEROFFICE CORRESPONDENCE CUPE6tTIN0 DATE: December 5, 2007 TO: David W. Knapp, City Manag`e~r TEL FROM: Ral h ualls Director Public Works ~ ~ C~~S P Q > Steve Piasecki, Director, Community Developme SUBJECT: Lindy Lane Development Status At its November 5, 2007, meeting, Council requested that staff expedite the installation of certain improvements and measures connected with what has been referred to as the Moxley development on Lindy Lane. This report is intended to serve as an update on the situation, and it is recommended that it be forwarded to the City Council. This issue has arisen because several Lindy Lane property owners situated below a steep private driveway on the north side of Lindy Lane complained to the City about mud flowing down the driveway on rainy days and spreading across Lindy Laue. Over the past few years, a number of houses have been constructed along the private drive, so the property owners have attributed the muddy flow to construction activities. There is some evidence that some muddy runoff has resulted from the temporary construction activity. However, it is also clear that it has stemmed from other sources as well. The steepness of driveway and the current lack of storm drain intercepting facilities at the bottom of the driveway (where it connects to. Lindy Lane, a public street) makes it clear that excessive storm water flows off the driveway toward the properties on Lindy Lace below have been a periodic problem, even without the recent construction activities. In any case, City staff will attempt to observe and videotape what may actually occur on the driveway durhig the next significant rainfall. . Lindy Lane Development nee Moxley Although this issue has been referred to generally as the Moxley development, Bret Moxley, who does not reside in Cupertino; subdivided land along the east side of the driveway into three lots, shovv~i as lots A, B, and C on the attached map. Lots A, B, and C were sold by Bret Moxley to successor owners, so that, with the exception of the tree planting described below, he is effectively out of the picture as the development moves forward, except to the extent that he has any agreements with successor owners. City and Developer Responsibilities & Actions Tlie driveway that is the access for Lots A through C and Lots E through G is a private driveway (see attached drawing) for which the City has no maintenance responsibilities whatever. The City's primary interest and sole responsibility is in what occurs on the private driveway and the private properties surrounding that.may adversely affect the public right of way on Lindy Lane and consequently the residences that front onto Lindy Lane. Lots A through E and Lot G all have active or recently completed development permits from the City. So the City has set or is in the process of setting improvement conditions for the development of the lots. The following actions and steps have been made by staff to address these responsibilities of the City. 1. Erosion Control • Upon being contacted by a Luldy Lane property about rnud flowing off the driveway while construction was underway on Lots A and C in the winter of 2006, Public Works staff took steps to assure that the developers were employing required erosion control. • Public Works staff had deployed measures during this wine period to intercept soil flowing off Lot F duruig rain events. In response to a letter from the City about the situation, the owner of Lot F stated that he does not believe that the rains are carrying soil off his lot. Staff informed him that the situation would be documented as rain arrives. • As mentioned above, City forces stand ready to observe and videotape what may actually occur on the driveway during the next signnificant rainfall. 2. Drainage • Public Works required Lot A to install drainage improvements that will intercept stoizn water flow along both sides of the driveway. On November 13, the City directed the owner in writing to proceed with the improvements. If necessary, after giving notice to the owner, Public Works will attach the securities subnnitted by the owner to guarantee the work, and hire its own contractor to effect the improvements. If the costs of doing so exceed the amount of securities, the City will place a lien on Lot A to collect the excess costs. • Public Works will require Lot B to install appropriate local drainage improvements when the owner applies for a building pernnit. • Public Works required Lot C to direct its runoff to the City's storm drain lure in Lindy Lane, and its improvements have been completed. • Public Works has required Lot D, which is currently undergoing design review, to make drainage improvements that will intercept storm water runoff from the driveway and downstream along its Luldy Lane frontage. • Public Works has required Lot E, which is also currently undergoing design review, to make appropriate drainage improvements to accommodate the runoff from development of the lots created by its subdivision. • Public Works approved plans for Lot G, which completed development in 2005, prior to development of Lots A and C, that called for installation of a storm drain lice down the driveway that is connected to the City's storm dram line in Lindy Lane. 3. Trees • As reported to the City Council on November 5, 2007, five oak trees are required to be planted on Lot B, and two trees are required on Lot C. In response to letters sent from the City Manager to Bret Moxley and to the property owners of Lots B and C, progress has been made in gettiig the trees planted. On November 2, Bret Moxley contacted the property owner of Lot B and said the five oak trees would be planted by December 18. Planning staff indicated to Bret Moxley previously that the trees needed to be watered once planted. Planning staff also met with the current owners to Lot B who are begimiing the process to construct a new residence on the lot. They told Plamung staff that there is no water available, that it has not been activated. So Mr. Moxley will need to complete the i-rigation i1 conjunction with the tree planting. Regarding the location of the five new trees, two will be planted toward the front of the lot and three toward the back. No trees will be planted along the sides because of the new construction that will begin shortly. The City can require additional trees in these areas as part of the new construction. • Regarding Lot C, the City's consulting arborist, David Babby, has been provided a deposit by the owners of Lot C to evaluate several trees on the property: two oak trees are very near the house and need to be moved; one dead oak tree is by the driveway and needs to be replaced, and appropriate locations for the t<vo new trees need to be identified. Planning staff is confident that there will be follow-through on this property, and we will continue to nlolutor it. 4. Road Maintenance • The driveway is a private road that as far as staff can determile is not covered by a road maintenance agreement that gives the frontuig properties reciprocal maintenance obligations. • Lots A, B, and C are required to execute a driveway maintenance agreement that will obligate them to each other for maintenance of the portion of the driveway from Lot A to its iitersection with Lindy La~1e. Lot E is required to execute a similar driveway maintenance agreement for the three parcels into which it has been subdivided. • The owner of Lot G has expressed a desire to improve the driveway, but represents that he is reluctant to move ahead without the participation of others along the driveway. Key to Lots Lot Current Former Owner Access Comme~zts Owner A Mittal Moxley (subdivider) DW Completed house. Required to make drainage improvements that will intercept flow along DW B Krishnapura Moxley (subdivider) DW No Bldg pernit/reimails to be conditioned C Chan Moxley (subdivider) DW Completed house and adequate drainage improvements D Kropp Kropp (subdivider) LINDY Lot D subdivided 'alto 2 parcels LANE that are conditioned to make drainage improvements downstream of DW E Sun Sun (subdivider) DW Lot E subdivided alto 3 parcels that have yet to make improvements F Guengerich Guengerich DW Does not believe Lot F a passive source of muddy flow as observed by City. G Santoro Santoro DW Recently built house on G. histalled SD main iz DW. Expressed desire to improve DW. DW =The private driveway of interest Conclusion• Given the facts and history of the Lindy lane situation as noted above, it should be clear to everyone involved that the City has discharged its responsibilities and will enforce as necessary any failure by a developer or property owner to perform on the conditions on each lot's peanut. It should also be noted that any representation to the contrary with regard to either the City's obligations or performance should be disregarded as an incorrect and nisinfonned representation of the facts.