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CC Resolution No. 15-024 Upholding Planning Commission approval of (TR-2014-60) Tree Removal Permit, 10310 N. Foothill Blvd. RESOLUTION NO. 15-024 A RESOLUTION OF THE CITY COUNCIL OF CUPERTINO DENYING AN APPEAL AND UPHOLDING THE PLANNING COMMISSION'S FEBRUARY 10,2015 APPROVAL OF A TREE REMOVAL PERMIT TO ALLOW THE REMOVAL AND REPLACEMENT OF SIX PROTECTED TREES TO FACILITATE THE CONSTRUCTION OF A 15-UNIT APARTMENT COMPLEX INCLUDING PARKING LOT,LANDSCAPING AND OTHER SITE IMPROVEMENTS AT A VACANT PARCEL LOCATED AT 10310 NORTH FOOTHILL BOULEVARD, (APN:326-15-096) SECTION I: PROJECT DESCRIPTION Application No.: TR-2014-60 Applicant: Robert Adzich Property Owner: D&B Legacy,LLC Appellants: Bo S. & Hyung K. Chang, Kaylan & Meera Ramanathan, Doris De Franco, Kate &Alan Brauner,Ying Lu,Wei Kuo Chang,Amber East D'Anna Location: 10310 North Foothill Boulevard, (APN: 326-15-096) SECTION II: FINDINGS FOR TREE REMOVAL PERMIT: WHEREAS, the City Council of the City of Cupertino received an appeal of the Planning Commission's February 10, 2015 approval for a Tree Removal Permit as described in Section I. of this Resolution; and WHEREAS, the necessary public notices have been given as required by the Procedural Ordinance of the City of Cupertino, and the Planning Commission 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 Planning Commission finds as follows with regard to this application: a) That the location of the trees restricts the economic enjoyment of the property by severely limiting the use of property in a manner not typically experienced by owners of similarly zoned- and situated property, and the applicant has demonstrated to the satisfaction of the approval authority that there are no reasonable alternatives to preserve the tree(s). The City's consulting arborist has determined that the trees proposed for removal are all in conflict with the proposed new building and site improvements. NOW,THEREFORE,BE IT RESOLVED: That after careful consideration of the maps, facts, exhibits, testimony and other evidence submitted in this matter, subject to the conditions which are enumerated in this Resolution beginning on PAGE 2 thereof,: The application for a Tree Removal Permit, Application no. TR-2014-60 is hereby denied, and the Planning Commission's February 10, 2015 approval is hereby upheld, and that the sub conclusions upon which the findings and conditions specified in this resolution are based and contained in the Resolution No.15-024 Page 2 Public Hearing record concerning Application no. TR-2014-60 as set forth in the Minutes of the City Council Meeting of April 7, 2015, and May, 5, 2015, and are incorporated by reference as though fully set forth herein. SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. APPROVED EXHIBITS Approval is based on the plan get dated April 23, 2015, consisting of 25 sheets labeled G0.0, SP1.0, A1.0, A1.1, A3.0, A3.1, A3.2, A3.3, A4.0, A4.1, A402, C-1 to C-6 and L-0.1 to L-2.3, entitled, "N. Foothill Blvd, 10310 N. Foothill Blvd., ,Cupertino, CA" prepared by Studio T; Architecture, Planning &Urban Design, except as may be amended by conditions in this resolution. 2. ACCURACY OF PROJECT PLANS The applicant/property owner is responsible to verify all pertinent property data including but not limited to property boundary locations, building setbacks, property size, building square footage, any relevant easements and/or construction records. Any misrepresentation of any property data may invalidate this approval and may require additional review. 3. ANNOTATION OF THE CONDITIONS OF APPROVAL The conditions of approval set forth shall be incorporated into and annotated on the first page of the building plans. 4. CONCURRENT APPROVAL CONDITIONS The conditions of approvalrcontained in file nos. DP-2014-08, ASA-2014-13 and TR-201.4-60 shall be applicable to this approval. 5. TREE PROTECTION The existing trees to remain shall be protected during construction per the City's Protected Tree Ordinance (Chapter 14.18 of the Municipal Code). The City's standard tree protection measures shall be listed on the plans, and protective fencing shall be installed around the trees to remain prior to issuance of building permits. A report ascertaining the good health of these trees shall be provided prior to issuance of final occupancy. 6. TREE MONITORING PROGRAM Prior to issuance of any building permits, the Applicant shall submit a tree monitoring program to the Planning Department for review and approval to ensure that the existing trees on the project site and the large Coast Live Oak tree on the neighboring parcel (10480 N. Foothill Boulevard) survive the development. Said program shall prescribe tree protection and irrigation measures, a schedule for the City's consultant arborist to inspect the trees on the development site before, during, and after development for a period of two years. The findings and observations from the City's consulting arborist shall be documented in a report submitted to the City confirming that the preservation measures are adequate and that the trees are in good standing. 7. REPLACEMENT PLANTING PLAN The final replacement planting plan shall be reviewed and approved by the Planning Division prior to issuance of building permits. The variety, size, planting distance shall be consistent with the City's requirements. The Director of Community Development shall have the discretion to Resolution No.15-024 Page 3 require additional tree replacements as deemed necessary. An ISA Certified Arborist shall confirm that the replacement trees were planted properly and according to plan prior to final occupancy. 8. CONSULTATION WITH OTHER DEPARTMENTS The applicant is responsible to consult with other departments and/or agencies with regard to the proposed project for additional conditions and requirements. Any misrepresentation of any submitted data may invalidate an approval by the Community Development Department. 9. 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 Resolution 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 applicant and City shall use best efforts to select mutually agreeable legal counsel to defend such action, and the applicant shall pay all compensation for such legal counsel, following the applicant's receipt of invoices from City, together with reasonable supporting documentation. Such compensation shall include reasonable compensation paid to counsel not otherwise employed as City staff and shall include City Attorney time and overhead costs and other City staff overhead costs and any costs directly related to the litigation reasonably incurred by City. If the applicant and the City cannot in good faith agree on joint counsel, the City shall have the right to retain counsel of its own choosing, separate from the applicant's litigation counsel. 10. NOTICE OF FEES DEDICATIONS. RESERVATIONS OR OTHER EXACTIONS The Conditions of Project Approval set forth herein may include certain fees, dedication requirements, reservation requirements, and other exactions. Pursuant to Government Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying with all of the requirements of Section 66020, you will be legally barred from later challenging such exactions. Resolution No.15-024 Page 4 PASSED AND ADOPTED, at a regular meeting of the City Council of the City of Cupertino, this 5117 day of May, 2015,by the following roll call vote: Vote Members of the City Council AYES: Sinks,Paul,Vaidhyanathan,Wong NOES: Chang ABSTAIN: None ABSENT: None ATTEST: APPROVED: Grace Schmidt, City Clerk Rod Sinks,Mayor, City of Cupertino