AH Reso 105 TR-2019-05.pdfTR -2019-05
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
10M603r18110[00ILIlemUlm
OF THE ADMINISTRATIVE HEARING OFFICER OF THE CITY OF CUPERTINO
APPROVING A TREE REMOVAL PERMIT TO ALLOW THE REMOVAL AND
REPLACEMENT OF TWELVE PROTECTED TREES AT THE MCCLELLAN
SQUARE SHOPPING CENTER LOCATED AT
10385-10497 S. DE ANZA BLVD (APN 359-17-019 and 359-17-023)
SECTION I: PROTECT DESCRIPTION
Application No.: TR -2019-05
Applicant: Victor DeMelo (Browman Development Company)
Location: 10385-10497 S. De Anza Blvd (APN 359-17-019 and 359-17-023)
SECTION II: FINDINGS TREE REMOVAL PERMIT:
WHEREAS, the City of Cupertino received an application 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 Administrative Hearing Officer has held at
least one public meeting in regard to the application; and
WHEREAS, the project is determined to be exempt from the California Environmental
Quality Act (CEQA); and
WHEREAS, the applicant has met the burden of proof required to support said
application; and
WHEREAS, the Administrative Hearing Officer finds as follows with regard to this
application:
1. 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 through reasonable
relocation or modification of the structure or utility services;
Resolution No. 105 TR -2019-05 February 28, 2019
Page 2
The City's consulting arborist has determined that the trees proposed for removal are in
conflict with the proposed site improvements and are not suitable for preservation or
relocation, and have poor canopy form.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of the maps, facts, exhibits, testimony, staff's report and
presentation, 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 -2019-05 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
no. TR -2019-05 as set forth in the Minutes of the Administrative Hearing Meeting of
February 28, 2019 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 arborist review dated January 7, 2016, consisting of one (1)
sheet entitled, "McClellan Square List of Trees" by Michael Bench; the removal plan,
consisting of one (1) sheet entitled, "Conceptual Landscape Plan" by James Ferguson
Clabaugh; and a replacement plan dated March 3, 2018, consisting of one (1) sheet
entitled, "McClellan Square Landscape Development Plans" drawn by Yamasaki
Landscape Architecture, 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. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. ASA -2018-10 and SP -2018-02 shall
be applicable to this approval.
4. FINAL PLANTING PLAN
The applicant shall plant replacement trees in accordance with the replacement
requirements of the Protected Tree Ordinance. The trees shall be planted prior to final
occupancy of site permits.
Resolution No. 105 TR -2019-05 February 28, 2019
Page 3
The final planting plan shall be reviewed and approved by the Director of Community
Development prior to issuance of building permits. The Director of Community
Development shall have the discretion to 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.
5. TREE REPLACEMNETS
The applicant is required to plant twelve (12) 24" box replacement tree in accordance
with the Protected Tree Ordinance. All replacement trees shall be native, low-water
using species.
6. TREE PROTECTION
As part of the demolition or building permit drawings, a tree protection plan shall be
prepared by a certified arborist for the trees to be retained. In addition, the following
measures shall be added to the protection plan:
• For trees to be retained, chain link fencing and other root protection shall be
installed around the dripline of the tree prior to any project site work.
• Signs indicating the protected status of the tree shall be installed on the
protective fencing.
• Tree protection conditions shall be posted on the tree protection fencing.
• No parking or vehicle traffic shall be allowed under root zones, unless using
buffers approved by the Project Arborist.
• No trenching within the critical root zone area is allowed. If trenching is
needed in the vicinity of trees to be retained, the City's consulting arborist shall
be consulted before any trenching or root cutting beneath the dripline of the
tree.
• Wood chip mulch shall be evenly spread inside the tree projection fence to a
four -inch depth.
• Retained trees shall continue to be irrigated or hand -watered to maintain them
in good health.
The tree protection measures shall be inspected and approved by the certified arborist
prior to issuance of building permits.
The City's consulting arborist shall inspect the trees to be retained and shall provide
reviews prior to issuance of demolition, grading or building permits. Additionally, a
report ascertaining the good health of the trees mentioned above shall be provided
prior to issuance of final occupancy. Any trees identified to be in poor health or
Resolution No. 105 TR -2019-05 February 28, 2019
Page 4
incongruent with the site -wide tree replacement plan in the report shall be required
to be removed and replaced.
7. MAINTENANCE
The property owner shall be responsible for ensuring that the existing trees and newly
planted trees are properly maintained including but not limited to ensuring that there
is adequate soil drainage, that the soil is well-aerated, and irrigation systems are
thoroughly tested to provide sufficient water to landscaped areas while reducing
water waste.
8. DISCLOSURE OF PROTECTED TREES AND COVENANT
The property owner/applicant understands that the replacement trees may not be
removed without a Tree Removal Permit and that they shall be responsible for
ensuring the ongoing proper maintenance and care of the trees. The location and
species of all replacements trees on site shall be disclosed upon sale of the property.
In addition, a covenant shall be recorded on the property that identifies all the
protected trees, prior to final occupancy.
9. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible for consulting 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
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.
Resolution No. 105 TR -2019-05 February 28, 2019
Page 5
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.
PASSED AND ADOPTED this 28th day of February, 2019 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.
/s/Ellen Yau
Ellen Yau
Associate Planner
I:�00tie] SA:193
/s/Benjamin Fu
Benjamin Fu
Acting Director of Community Development
McClellan Square
List of Trees Cupertino,
10425 S. DeAnza Blvd.
Page 1 California
Field Data Sheet
J Trunk
'DBH =
Diameter
f
Diameter at Breast
In Inches
!Height=
54 inches Above
l
j Grade
-T ree
Tree Name
DBH
Overall
#
Condition
1
Evergreen Pear
8
Fair-Goad
(Pyrus kawakami)
2
Evergreen Pear
8
Fair-Good
3
Evergreen Pear
2
Goad
4
Evergreen Pear
7
Fair-Good
5
Evergreen Pear
6
Fair-Good
6
Evergreen Pear
8
Fair-Good
7
Evergreen Pear
7
Fair-Good
8
Evergreen Pear
7
Fair-Good
9
Evergreen Pear
10
Fair-Good
10
Evergreen Pear
10
Fair-Good
11
Evergreen Pear
11
Fair-Good
12
Evergreen Pear
7
Fair-Good
Site Observations:
March 14, 2015;
Consulting Arborist: Michael Bench January 7, 20161
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