TR-2017-39 res.doc
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 83
OF THE ADMINISTRATIVE HEARING MEETING OF THE CITY OF CUPERTINO
TO ALLOW THE REMOVAL AND REPLACEMENT OF 14 PROTECTED TREES
TO FACILITATE THE CONSTRUCTION OF A NEW COMMERCIAL BANK
BRANCH AND ASSOCIATED SIDEWALK IMPROVEMENTS
AT 21020 HOMESTEAD ROAD (APN 326-07-020)
SECTION I: PROJECT DESCRIPTION
Application No.: TR-2017-39
Applicant: Whitney Marr (C&L Investments, LLC)
Location: 21020 Homestead Road APN# 326-07-020
SECTION II: FINDINGS
WHEREAS, the Administrative Hearing Officer of the City of Cupertino received an application for a Tree Removal Permit as described in Section I of this Resolution; and
WHEREAS, the project is categorically exempt from the California Environmental Quality Act (CEQA); and
WHEREAS, the necessary public notices have been given as required by the Procedural Ordinance of the City of Cupertino, and the Administrative Hearing Officer has held at least one public
meeting in regard to the application; and
WHEREAS, the applicant has met the burden of proof required to support said application; and
WHEREAS, the Administrative Hearing Officer finds:
That the tree or 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 through reasonable relocation or modification of the structure or utility services;
The on-site trees were evaluated for their health and their retention suitability and in most cases the health of the tree determined their suitability for retention. No trees were determined
to be in good health and have good structural stability. Of the 14 proposed removals, only three trees were evaluated with an above average health rating. These three Mexican fan palms
(Washingtonia robusta,) unfortunately were rated with a poor retention suitability as the palms are located where the required stormwater control facilities are proposed and the species
is typically not designed to thrive in these areas. The other protected trees evaluated were determined to be declining in health and/or have structural defects that cannot be abated
with treatment and would require significant management that may still yield a limited lifespan.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter, the Application No. TR-2017-39, is hereby approved; and
That the subconclusions upon which the findings and conditions specified in this Resolution are based and contained in the public meeting record concerning Application TR-2017-39 as
set forth in the Minutes of the Administrative Hearing Meeting of October 26, 2017, and are incorporated by reference herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPARTMENT
APPROVED EXHIBITS
Approval is based on the arborist report entitled, “Arborist Report, Project #5173.00,” prepared by Jake Minnick of HMH (#WE-11830A), dated October 2, 2017 consisting of twelve (12)
sheets inclusive of a landscape plan; except as may be amended by conditions in this resolution.
CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file no. ASA-2017-05 shall be applicable to this approval.
TREE REPLACEMENT SPECIES
The applicant is required to plant, at a minimum, a medium-sized shade tree in the public plaza to the satisfaction of the City in consultation with the City’s consulting arborist.
TREE REPLACEMENT SIZE
The applicant shall provide adequate tree replacements for trees proposed to be removed in conformance to the replacement guidelines per Cupertino Municipal Code Section 14.18.160. The
size of the proposed replacement trees shall be modified as follows to be consistent with the City’s Protected Tree Ordinance unless deemed infeasible by the City’s Consulting Arborist:
Diameter of trunk size of removed tree up to 12 inches shall be replaced with one 24-inch box tree;
Over 12 inches and up to 36 inches shall be replaced by two 24-inch box tree or one 36-inch box tree; and
Over 36 inches shall be replaced with one 36-inch box tree.
If it is determined that it is physically not feasible to plant the required replacements trees, the Applicant may pay in-lieu fees determined to be appropriate by the Community Development
Director.
ARBORIST REVIEW
Prior to building permit issuance, the number, location and species of trees shall be reviewed and approved by the City in consultation with the City’s Consulting Arborist.
The replacement trees shall be planted prior to building permit final. The Applicant shall provide the Department of Community Development adequate documentation, including, but not
limited to, photographs, receipts or invoices, to verify that replacements have been planted. The City’s consulting arborist shall inspect the trees after planting and a report ascertaining
the good health of the trees mentioned above shall be provided prior to issuance of final occupancy.
PROTECTED TREES
The applicant understands that the replacement trees may not be removed without a Tree Removal Permit and that they shall be responsible for ensuring the proper maintenance and care
of the trees. The applicant shall also disclose the location and species of all replacements trees on site upon sale of the property.
INDEMNIFICATION
Except as otherwise prohibited by law, the applicant shall indemnify and hold harmless the City, its City Council, and its officers, employees and agents (collectively, the “indemnified
parties”) from and against any claim, action, or proceeding brought by a third party against one or more of the indemnified parties or one or more of the indemnified parties and the
applicant 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 shall pay such attorneys’ fees and costs within 30 days following receipt of invoices from City. Such attorneys’ fees and costs shall include
amounts 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.
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 26th day of October, 2017 at a noticed Public Meeting of the Administrative Hearing Officer of the City of Cupertino, State of California, held by the Director
of Community Development, or his or her designee, pursuant to Cupertino Municipal Code Section 19.12.120.
ATTEST: APPROVED:
/s/Ellen Yau_____________ _____/s/Benjamin Fu___________
Ellen Yau Benjamin Fu
Assistant Planner Asst. Director of Community Development