CC Resolution No. 13-017 TR-2012-41 Saich Way Station, 20803 Stevens Creek Blvd and 10033-10095 Saich Way RESOLUTION NO. 13-017
OF THE CITY COUNCIL OF THE CITY OF CUPERTINO DENYING AN
APPEAL AND UPHOLDING THE PLANNING COMMISSION'S JANUARY
8, 2013 APPROVAL OF A TREE REMOVAL PERMIT TO ALLOW THE
REMOVAL AND REPLACEMENT OF 13 TREES IN CONJUNCTION WITH
A PROPOSED DEVELOPMENT PROJECT LOCATED AT 20803 STEVENS
CREEK BLVD AND 10033-10095 SAICH WAY
SECTION I: PROJECT DESCRIPTION
Application No.: TR-2012-41
Applicant: Tom Purtell (Borelli Investment Co.)
Property Owner: Diana Taylor
Appellants: Darrel Lum and Dennis Whittaker
Location: 20803 Stevens Creek Boulevard and 10033-10095 Saich Way
(APNs 326-32-041 and 326-32-042, respectively)
SECTION II: FINDINGS FOR A TREE REMOVAL PERMIT:
WHEREAS, the City Council of the City of Cupertino received an appeal of the
Planning Commission's January 8, 2013 approval of a Tree Removal Permit as
described in Section I. of this Resolution; and
WHEREAS, the Environmental Review Committee has recommended adoption
of a Mitigated Negative Declaration; and
WHEREAS, the necessary public notices have been given as required by the
Procedural Ordinance of the City of Cupertino, and the Planning Commission
and City Council has held at least one public hearing in regard to the application;
and
WHEREAS, the applicant has met the burden of proof required to support said
application; and
WHEREAS, the City Council finds as follows with regard to this application:
a) That the trees are irreversibly diseased, are in danger of falling, can cause
potential damage to existing or proposed essential structures, or interferes
with private on-site utility services and cannot be controlled or remedied
Resolution No. 13-017
Page 3
a. The row of parking stalls along the shared two-way driveway entry from
Stevens Creek Blvd shall be removed;
b. The building pad for Shop 7 may be reconfigured accordingly to
encompass the area of the abovementioned removed stalls and new
parking stalls may be provided on the north side of the building;
c. The Stevens Creek Blvd shared access driveway between the project site
and the property to the west shall be a two-way driveway;
d. The existing on-street parallel parking stalls along Saich Way shall be
retained (does not include the relocation of the existing bus layover
location);
e. Shop 6 shall be moved to the north to be attached to the rear retail
building (which includes shops/restaurants 1-5);
f. A new two-way drive aisle shall be provided to the north of Shop 7,
connecting the drive aisle behind the Peet's/Panera building (to the west
of the project site) to Saich Way to the east;
g. The applicant shall consult with the property owner to the west to discuss
the potential removal/relocation of the existing trash enclosure along the
west property line of the project site in order to accommodate a new
access connection to the project site; and
h. The required parking for the project shall remain consistent with the
City's Parking Ordinance.
In the event that the applicant does not provide all of the required
modifications noted above, the project shall be brought back to the City
Council for review and approval prior to issuance of building and grading
permits.
2. APPROVED EXHIBITS
Approval is based on the plan set dated December 14, 2012 consisting of 27
sheets labeled T1, A0, Al, A2, Building 1 Exterior Elevations, A3, Building 2
Exterior Elevations, A4, D1, D2, D3, D4, D5, Ml, L-1, L-2, C-1, C-2, C-3, C-3.1,
C-3.2, C-4, C-5, C-6, C-7, C-8, and Photometric Plan, entitled, "Saich Way,
20803 Stevens Creek Blvd., Cupertino, California, Borelli Investment Co."
drawn by FCGA Architecture, Borrecco/Kilian & Associates, Inc., and HMH;
the consulting arborist peer review report entitled, "A Review of the Existing
Trees at the Saich Way Station Project, Stevens Creek and Saich Way,
Cupertino, California," prepared by Michael Bench, Registered Consulting
Arborist # WE-1897 dated November 2012; and the arborist report entitled,
Resolution No. 13-017
Page 5
b) If removal of the trees on-site is planned to take place between January
and August (inclusive), a pre-construction survey for nesting birds shall
be conducted by a qualified ornithologist to identify active nesting raptor
or other bird nests that may be disturbed during project implementation.
Between January and April (inclusive) pre-construction surveys shall be
conducted no more than 14 days prior to the initiation of construction
activities or tree relocation or removal. Between May and August
(inclusive), pre-construction surveys shall be conducted no more than
thirty (30) days prior to the initiation of these activities. The surveying
ornithologist shall inspect all trees in and immediately adjacent to the
construction area for nests. If an active raptor nest is found in or close
enough to the construction area to be disturbed by these activities, the
ornithologist shall, in consultation with the State of California,
Department of Fish & Game (CDFG), designate a construction-free buffer
zone (typically 250 feet) around the nest until the end of the nesting
activity. Buffers for other birds shall be determined by the ornithologist.
c) A report summarizing the results of the pre-construction survey and any
designated buffer zones or protection measures for tree nesting birds shall
be submitted to the Community Development Director prior to the start of
grading or tree removal.
7. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or
agencies with regard to the proposed project for additional conditions and
requirements. Any misrepresentation of any submitted data may invalidate
an approval by the Community Development Department.
8. INDEMNIFICATION
To the extent permitted by law, the Applicant shall indemnify and hold
harmless the City, its City Council, its officers, employees and agents (the
"indemnified parties") from and against any claim, action, or proceeding
brought by a third party against the indemnified parties and the applicant to
attack, set aside, or void this ordinance or any permit or approval authorized
hereby for the project, including (without limitation) reimbursing the City its
actual attorneys' fees and costs incurred in defense of the litigation. The City
may, in its sole discretion, elect to defend any such action with attorneys of its
choice.
Resolution No. 13-017
Page4
"Borelli Investment Company, 20803 Stevens Creek Boulevard/10033-10095
Saich Way, Pre-Construction Tree Protection Plan," prepared by Samuel
Oakley, Certified Arborist # WE-9474A dated June 18, 2012; except as may be
amended by conditions in this resolution.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. DP-2012-05 and ASA-2012-
13 shall be applicable to this approval.
4. TREE REPLACEMENTS AND FINAL PLANTING PLAN
The applicant shall plant replacement trees in accordance with the
replacement requirements of the Protected Tree Ordinance. Street trees along
Stevens Creek Boulevard and Saich Way shall be consistent with the Heart of
the City Specific Plan. The trees shall be planted prior to final occupancy of
site permits.
The final planting plan shall be reviewed and approved by the Director of
Community Development with consultation by the City Arborist prior to
issuance of building permits. The Director of Community Development shall
have the discretion to require additional tree replacements as deemed
necessary. The City Arborist shall confirm that the replacement trees were
planted properly and according to plan prior to final occupancy.
5. TREE REPLACEMENT BOND
The applicant shall provide a tree replacement bond in an amount
determined by the City Arborist prior to removals and issuance of demolition
and grading permits. The bond shall be returned after the required tree
replacements have been planted and verified by the City Arborist.
6. SCHEDULING OF TREE REMOVALS TO A VOID IMP ACTS TO NESTING
BIRDS
The project shall implement the following measures to avoid impacts to
nesting birds:
a) Removal of trees on the project site could be scheduled between
September and December (inclusive) to avoid the nesting season for birds
and no additional surveys would be required.
Resolution No. 13-017
Pages
b) If removal of the trees on-site is planned to take place between January
and August (inclusive), a pre-construction survey for nesting birds shall
be conducted by a qualified ornithologist to identify active nesting raptor
or other bird nests that may be disturbed during project implementation.
Between January and April (inclusive) pre-construction surveys shall be
conducted no more than 14 days prior to the initiation of construction
activities or tree relocation or removal. Between May and August
(inclusive), pre-construction surveys shall be conducted no more than
thirty (30) days prior to the initiation of these activities. The surveying
ornithologist shall inspect all trees in and immediately adjacent to the
construction area for nests. If an active raptor nest is found in or close
enough to the construction area to be disturbed by these activities, the
ornithologist shall, in consultation with the State of California,
Department of Fish & Game (CDFG), designate a construction-free buffer
zone (typically 250 feet) around the nest until the end of the nesting
activity. Buffers for other birds shall be determined by the ornithologist.
c) A report summarizing the results of the pre-construction survey and any
designated buffer zones or protection measures for tree nesting birds shall
be submitted to the Community Development Director prior to the start of
grading or tree removal.
7. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or
agencies with regard to the proposed project for additional conditions and
requirements. Any misrepresentation of any submitted data may invalidate
an approval by the Community Development Department.
8. INDEMNIFICATION
To the extent permitted by law, the Applicant shall indemnify and hold
harmless the City, its City Council, its officers, employees and agents (the
"indemnified parties") from and against any claim, action, or proceeding
brought by a third party against the indemnified parties and the applicant to
attack, set aside, or void this ordinance or any permit or approval authorized
hereby for the project, including (without limitation) reimbursing the City its
actual attorneys' fees and costs incurred in defense of the litigation. The City
may, in its sole discretion, elect to defend any such action with attorneys of its
choice.
Resolution No. 13-017
Page 6
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.
PASSED AND ADOPTED this 19th day of February, 2013, Regular Meeting of
the City Council of the City of Cupertino, State of California, by the following
roll call vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST:
Mahoney, Santoro, Sinks, Wong
Chang
None
None
~~'JT
Grace Schmidt
City Clerk
APPROVED:
Orrin Mahoney,
City of Cupertino