CC Resolution No. 18-059 Denying an Appeal and Upholding the Planning Commission's March 27, 2018 Approval of a Development Permit for the Replacement of an Existing 76 Gasoline Service Station and an Auto RepairRESOLUTION NO. 18-059
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
DENYING AN APPEAL AND UPHOLDING THE PLANNING COMMISSION'S
MARCH 27, 2018 APPROVAL OF A DEVELOPMENT PERMIT FOR THE
REPLACEMENT OF AN EXISTING 76 GASOLINE SERVICE STATION AND AN
AUTO REPAIR SHOP (l,221SQ. FT.,) WITH AN UPDATED GASOLINE SERVICE
STATION AND A CONVENIENCE MARKET (2,419 SQ. FT.) LOCATED AT 10490 S
DE ANZA BL VD (APN 369-39-041)
SECTION I: PROJECT DESCRIPTION
Application No.:
Applicant:
Appellants:
Location:
DP-2017-02
Amir Khojasteh
Georgene Petri
10495 S De Anza Blvd
SECTION II: FINDINGS FOR DEVELOPMENT PERMIT:
WHEREAS, the Planning Commission of the City of Cupertino received an application
for a Development Permit (the "Permit") as described in Section I. of this Resolution as
well as for an Architectural and Site Approval Permit and a Use Permit (collectively, the
"Project"); and
WHEREAS, the Project is determined to be exempt from the California Environmental
Quality Act (CEQA) pursuant to section 15303 of the CEQA Guidelines; and
WHEREAS, the necessary public notices have been given as required by the Procedural
Ordinance of the City Council, and the Planning Commission has held at least one public
hearing in regard to the Project; and
WHEREAS, the Planning Commission, after considering all the evidence in the record,
including public testimony, was able to make the necessary findings to approve the
Project, and therefore approved the Project at its March 27, 2018 meeting; and
WHEREAS, the City Council of the City of Cupertino received an appeal of the Planning
Commission's approval of the Project; and
WHEREAS, the necessary public notices have been given as required by the Procedural
Ordinance of the City of Cupertino, and the City Council has held at least one public
hearing in regard to the appeal; and
Re solution No. 18-059
Page 2 DP-201 7-02
WHEREAS, the City Council can make the findings required to issue the Permit pursuant
to sections 19.156 of the Municipal Code and desires to deny the appeal; and
WHEREAS, the City Council finds as follows with regard to this application:
1. The proposed development, at the proposed location, will not be detrimental or
injurious to property or improvements in the vicinity, and will not be detrimental
to the public health, safety, general welfare, or convenience;
The proposed development is an update of an existing gasoline station with an increase of the
net square footage by 1,198 square feet to accommodate for a convenience market and the
relocation of the existing four fuel dispensers . The Project is consistent with the City's zoning
ordinance, and the redevelopment and expansion of uses to accommodate for the convenience
market will enhance the commercial activity along South De Anza Blvd by providing
additional commercial square footage , improving sidewalks and driveways, contributing land
through a dedication to support the De Anza Blvd/McClellan/Pacifica Signal Modification
Project, and provide landscaping and tree canopy coverage in the newly striped parking lot
and along the South De Anza Blvd frontage. A condition of the Use Permit for the Project,
which is incorporated into the conditions for this Permit as set forth in Condition of Approval
#4 below, requires installation of security cameras and cooperation with the City and law
enforcement. The Project is adjacent to other commercial uses, and the nearest residential
uses are approximately 300 feet away. Therefore, the proposal will not be detrimental or
injurious to property or improvements in the vicinity.
2. The proposed development will be located and conducted in a manner in accord
with the Cupertino Comprehensive General Plan and the purpose of chapter 19.156
of the Cupertino Municipal Code and complies with the California Environmental
Quality Act (CEQA).
The proposed development is in conformance with the Cupertino General Plan as part of the
South De Anza Special Area. Th e South De Anza Special Area is intended to continue as a
predominantly commercial area with neighborhood centers, commercial office and residential
uses and gathering spaces for the community with a focus on promoting active retail and
service uses, improved bike and pedestrian connectivity to adjacent neighborhoods and an
improved streetscape with landscaping and separated sidewalks. The proposal has met the
development standards as defined by the South De Anza Conceptual Plan and the City
Municipal Code such as heights, setbacks, and parking requirements. The site is within a
Planned Development Zoning District that supports commercial uses. Therefore, the
proposed development is consistent with the purpose of, and regulations within, the City's
zoning ordinance.
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Page3 DP-2017-02
The project is exempt from CEQA pursuant to CEQA Guidelines section 15303 (Exemption
for New Construction or Conversion of Small Structures).
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 3 thereof,:
The Project is found to be exempt from the California Environmental Quality Act pursuant
to CEQA Guidelines section 15303. The appeal of the application for a Development
Permit, Application no. DP-2017-02 is hereby denied, and the Planning Commission's
March 27, 2018 approval is hereby upheld. The conclusions upon which the findings and
conditions specified in this resolution are based and contained in the Public Hearing record
concerning Application nos. ASA-2017-04, DP-2017-02, and U-2017-03 as set forth in the
Minutes of Planning Commission Meeting of March 27, 2018 and City Council Meeting of
June 5, 2018, 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 set drawn by AGP Design Group entitled "76 Gas
Stations 10490 S. De Anza Blvd." consisting of twenty-six (26) sheets labeled as A.0-0
-A.11.0, L.1.0 -L.2.0, T.O, C.1 -C.6, and PH.O -PH.4 except as may be amended by
conditions in this resolution.
2. ACCURACY OF PROTECT 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 approval contained in file nos. U-2017-03 and ASA-2017-04 shall be
applicable to this approval.
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5. GENERAL PLAN DEVELOPMENT ALLOCATION
The applicant shall receive an allocation of 1,198 s. f. of the available 819, 327 s. f.
commercial allocations for Heart of the City Special Area.
6. HOUSING MITIGATION FEES
The applicant shall participate in the City's Below Market Rate (BMR) Housing
Program by paying housing mitigation fees prior to issuance of building permits as
per the Housing Mitigation Manual.
7. PRE-CONSTRUCTION MEETING AND CONSTRUCTION MANAGEMENT PLAN
A demolition and construction management plan shall be submitted and reviewed by
the City prior to building permit issuance. Prior to commencement of construction
activities, the applicant shall arrange for a pre-construction meeting with the pertinent
departments (Building, Planning, and Public Works) to review the prepared
construction management plan, to ensure that construction complies with the
conditions of approval, staging of construction equipment is appropriate, tree
protection measures are in place, public access routes are identified and defined, and
noise and dust control measures are established.
8. CONSTRUCTION HOURS
Construction activities shall be limited to Monday through Friday, 7 am to 8 pm and
Saturday and Sunday, 9 am to 6 pm. Construction activities are not allowed on
holidays. Construction noise levels must comply with the City's Community Noise
Control Ordinance.
The developer shall be responsible for educating all contractors and subcontractors of
construction restrictions. Rules and regulations pertaining to all construction
activities and limitations identified in this permit, along with the name and telephone
number of a developer appointed disturbance coordinator, shall be posted in a
prominent location at the entrance to the job site.
9. NOISE LEVELS AND ABATEMENT
Project construction and use shall comply with the City's Community Noise Control
Ordinance at all times. Should the Project exceed any of the stipulated maximum
noise levels outlined in the City's Community Noise Control Ordinance, the City may
require the applicant to hire an acoustical engineer to submit noise attenuation
measures to the satisfaction of the Director of Community Development at the
applicant's expense.
10. DUST CONTROL
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Pa ge 5 DP-2017-02
The following construction practices shall be implemented during all phases of
construction for the proposed Project to prevent visible dust emissions from leaving
the site:
a) Water all active construction areas at least twice daily and more often during
windy periods to prevent visible dust from leaving the site; active areas adjacent to
windy periods; active areas adjacent to existing land uses shall be kept damp at all
times, or shall be treated with non-toxic stabilizers or dust palliatives.
b) Cover all trucks hauling soil, sand, and other loose materials or require all trucks
to maintain at least 2 feet of freeboard;
c) Pave, apply water at least three times daily, or apply (non-toxic) soil stabilizers on
all unpaved access roads, parking areas and staging areas at construction sites.
d) Sweep streets daily, or more often if necessary (preferably with water sweepers) if
visible soil material is carried onto adjacent public streets.
e) The applicant shall incorporate the City's construction best management practices
into the building permit plan set.
11. 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.
12. 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.
13. 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
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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.
SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS
DEPARTMENT
14. STREET WIDENING AND INTERSECTION IMPROVEMENTS
Public street widening and dedications shall be provided in accordance with City
Standards and specifications and as required by the City Engineer. Prior to issuance
of a building permit the Developer shall provide the City, to the satisfaction of the
City Engineer, a dedication in fee of a strip of land along the north and northwest
portions of the property, to the line labeled "Property Line" as depicted on sheet C-4
of the proposed plan set. The Developer shall also provide the City, prior to issuance
of a building permit, with a temporary construction easement along the property
frontage to facilitate the construction of improvements to the intersection of De Anza
Boulevard and Pacifica A venue, and to conform the public right of way
improvements to surface facilities within the property. The temporary construction
easement shall remain in effect until the intersection improvements are completed
and accepted by the City.
The dedication will be utilized by the Public Works Department to construct
intersection and signal improvements at the intersection of De Anza Blvd and Pacifica
Drive to address inefficiencies in traffic operations.
The Developer will be responsible for installing all required frontage improvements,
to the satisfaction of the City Engineer. Applicant shall not be responsible for those
improvements directly associated with the intersection modifications.
15. FAIR-SHARE CONTRIBUTION
The Developer shall provide the City with a fair-share contribution of 25 % of the total
cost towards the intersection improvements, of an amount not to exceed $50 ,000.
16. CURB AND GUTTER IMPROVEMENTS
Sidewalks, driveway approaches, curb and gutters and related structures shall be
installed by applicant in accordance with grades and standards as specified by the
City Engineer.
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17. PEDESTRIAN AND BICYCLE IMPROVEMENTS
Developer shall provide pedestrian and bicycle related improvements consistent with
the Cupertino Bicycle Transportation Plan and the Pedestrian Transportation
Guidelines, and as approved by the City Engineer.
18. BICYCLE PARKING
Developer shall provide bicycle parking consistent with the City's requirements to the
satisfaction of the City Engineer.
19. EARTHWORK
Earthwork 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. Applicant is responsible for contacting the County Health
Department, Army Corp of Engineers and/or Regional Water Quality Control Board
as appropriate.
20. DRAINAGE
Drainage shall be provided 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.
Any onsite drainage inlets shall be equipped with an approved trash capture and
filtering device, and the property owner will be responsible for ensuring the proper
cleaning and maintenance of these facilities.
21. C.3 REQUIREMENTS
Per the NPDES permit, this Project would be a C.3 regulated Project should it create
and/or replace 5,000 S.F. or more of impervious surface (collectively over the entire
Project site). Stormwater treatment improvements would be required if this threshold
is reached, and the developer would be required to reserve a minimum of 4% of
developable surface area for the placement of low impact development measures, for
storm water treatment, 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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All storm water management plans are required to obtain certification from a City
approved third party reviewer.
22. UNDERGROUND UTILITIES
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. 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.
23. TRANSFORMERS
Electrical transformers, telephone cabinets and similar equipment shall be placed in
underground vaults. The developer must receive written approval from both the
Public Works Department and the Community Development Department prior to
installation of any above ground equipment. Should above ground equipment be
permitted by the City, equipment and enclosures shall be screened with fencing and
landscaping such that said equipment is not visible from public street areas, as
determined by the Community Development Department. Transformers shall not be
located in the front or side building setback area.
24. WATER BACKFLOW PREVENTERS
Domestic and Fire Water Backflow preventers and similar above ground equipment
shall be placed away from the public right of way and site driveways to a location
approved by the Cupertino Planning Department, Santa Clara County Fire
Department and the water company.
25. 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.
26. 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.
27. EROSION CONTROL PLAN
Resolution No. 18-059
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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.
28. 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.
29. TRAFFIC CONTROL PLAN
The developer must submit a traffic control plan by a Registered Traffic Engineer to
be approved by the City. The plan shall include a temporary traffic control plan for
work in the right of way as well as a routing plan for all vehicles used during
construction. All traffic control signs must be reviewed and approved by the City
prior to commencement of work. The City has adopted Manual on Uniform Traffic
Control Devices (MUTCD) standards for all signage and striping work throughout
the City.
30. 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.
31. FIRE PROTECTION
Fire sprinklers shall be installed in any new construction to the approval of the City.
A letter of clearance for the Project shall be obtained from the Santa Clara County Fire
Department prior to issuance of building permits. Clearance should include written
approval of the location of any proposed Fire Backflow Preventers, Fire Department
Connections and Fire Hydrants (typically Backflow Preventers should be located on
private property adjacent to the public right of way, and fire department connections
must be located within 100' of a Fire Hydrant).
32. FIRE HYDRANT
Fire hydrants shall be located as required by the City and Santa Clara County Fire
Department as needed.
33. SAN JOSE WATER COMP ANY CLEARANCE
Provide San Jose Water Company approval for water connection, service capability
and location and layout of water lines and backflow preventers before issuance of a
building permit approval.
34. DEDICATION OF UNDERGROUND WATER RIGHTS
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Pa ge 10 DP-201 7-02
Developer shall "quit claim" to the City all rights to pump, take or otherwise extract
water from the underground basin or any underground strata in the Santa Clara
Valley.
35. SANITARY DISTRICT
A letter of clearance for the Project shall be obtained from the Cupertino Sanitary
District prior to issuance of building permits.
36. UTILITY EASEMENTS
Clearance approvals from the agencies with easements on the property (including
PG&E, AT&T, and California Water Company, and/or equivalent agencies) will be
required prior to issuance of building permits.
SECTION V: CONDITIONS ADMINISTERED BY THE ENVIRONMENTAL
PROGRAMS DIVISION OF THE CITY OF CUPERTINO
37. FULL TRASH CAPTURE STORM DRAIN CATCH BASIN INSERTS
For projects located in medium and high trash management areas as defined by the
City of Cupertino Trash Management Area Map or are adjacent to a creek, full trash
capture storm drain catch basin inserts may be required. A Maintenance Agreement
and certification of ongoing operation and maintenance of the devices in accordance
with the manufacturers recommended specifications is required.
38. STORM DRAIN INLET MARKERS
All exterior storm drain inlets on the property shall be clearly marked with "No
Dumping Flows to Creek" or "No Dumping Flows to Bay".
39 . EXTERIOR COPPER
The exterior use of copper for roofing materials, rain gutters, downspouts, or any
ornamental enhancement is prohibited . Small copper adornments such as door
handles or fence post caps are exempted .
40. CONSTRUCTION AND DEMOLITION WASTE RECYCLING
Construction, demolition, and renovation projects which are 3000 square feet or more
are required to submit a completed Waste Management Plan demonstrating that a
minimum of 60 % of the material generated is recycled consistent with the provisions
of Cupertino Municipal Code Section 16.72.
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SECTION VI: CONDITIONS ADMINISTERED BY THE SANTA CLARA COUNTY FIRE
DEPARTMENT
41. FIRE SPRINKLERS REQUIRED
Approved automatic sprinkler systems in new and existing buildings and structures
shall be provided the locations described in this Section or in Sections 903.2.1 through
903.2.19 whichever is the more restrictive. For the purposes of this section, firewalls
and fire barriers used to separate building areas shall be constructed in accordance
with the California Building Code and shall be without opening or penetrations.
42 . WATER SUPPLY REQUIREMENTS
Potable water supplies shall be protected from contamination caused by fire
protection water supplies. It is the responsibility of the applicant and any contractors
and subcontractors to contact the water purveyor supplying the site of such project,
and to comply with the requirements of that purveyor. Such requirements shall be
incorporated into the design of any water-based fire protection systems, and/ or fire
suppression water supply systems or storage containers that may be physically
connected in any manner to an appliance capable of causing contamination of the
potable water supply of the purveyor of record . Final approval of the system(s) under
consideration will not be granted by this office until compliance with the
requirements of the water purveyor of record ae documented by that purveyor as
having been met by the applicant(s). 2010 CFC Sec. 903.3.5 and Health and Safety
Code 13114.7.
43. CONSTRUCTION SITE FIRE SAFETY
All construction sites musty comply with applicable provisions of the CFC Chapter
33 and our Standard Detail and Specification SI-7. Provide appropriate notations on
subsequent plan submittals as appropriate to the project. CFC Chapter 33.
44. HAZMAT REVIEW
A separate review by our HAZMAT Division is required. Detailed plans for the
proposed system must be submitted separately and directly to our office located at
14700 Winchester Blvd., Los Gatos, CA. All permits required by the HAZMAT
Division must be obtained prior to commencing work, or as indicated by the
HAZMAT review.
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Page 12
45. ADDRESS IDENTIFICATION
DP-2017-02
New and existing buildings shall have approved address numbers, building numbers
or approved building identification placed in, a position that is plainly legible and
visible from the street or road fronting the property. These numbers shall contrast
with their background. Where required by the fire code official, address numbers
shall be provided in additional approved locations to facilitate emergency response.
Address numbers shall be Arabic number or alphabetical letters. Numbers shall be a
minimum of 4 inches (101.6mm) high with a minimum stroke width of 0.5 inch (12.7
mm). Where access is by means of a private road and the building cannot be viewed
from the public way, a monument, pole or other sign or means shall be used to
identify the structure. Address numbers shall be maintained. CFC Sec. 505.1
SECTION VII: CONDITIONS ADMINISTERED BY CUPERTINO SANITARY DISTRICT
46. PERMIT FEES
Permit fees shall be required for the subject application based on the proposed area
and use modifications
47. IMPROVEMENT PLANS
Improvement plans for the subject project shall be reviewed by the District.
PASSED AND ADOPTED this 5th day of June, 2018, at the 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:
Members of the City Council
Paul, Sinks, Chang, Vaidhyanathan
Scharf
None
None
APPROVED:
City of Cupertino