Administrative Hearing Reso #114, TR-2019-032, 01-09-2020TR-2019-032
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 114
OF THE ADMINISTRATIVE HEARING OFFICER
OF THE CITY OF CUPERTINO APPROVING A TREE REMOVAL
PERMIT TO ALLOW THE REMOVAL AND REPLACEMENT OF
TWENTY-FIVE PROTECTED TREES LOCATED
AT 19900 STEVENS CREEK BLVD.
SECTION I: PROJECT DESCRIPTION
Application No.: TR-2019-032
Applicant: Nathan Ung
Location: 19900 Stevens Creek Blvd. (APN 369-05-038)
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, pursuant to the provisions of the California Environmental Quality Act of
1970 (Public Resources Code section 21000 et seq.) (“CEQA”), together with the State
CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.)
(hereinafter, "CEQA Guidelines"), the City staff has independently studied the proposed
Project and has determined that the Project is exempt from environmental review
pursuant to the categorical exemption in CEQA Guidelines section 15301 and 15332 for
the reasons set forth in the staff report dated January 9, 2020 and incorporated herein;
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:
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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;
The trees proposed for removal are either in conflict with the proposed site improvements,
not suitable for preservation or relocation, or have an existing canopy form that would be
hazardous under strong winds. These have been documented by an ISA certified arborist.
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-2019-032 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-2019-032 as set forth in the Minutes of the Administrative Hearing
Meeting of January 9, 2020 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 November 4, 2019, consisting of 33
pages and the plan set drawn by M/A Design Group and HMH titled “Charles Dunn
19900 Stevens Creek Blvd. Building Remodel and Renovations” consisting of forty-
five (45) sheets, 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. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. DP-2019-001 and ASA-2019-006 shall
be applicable to this approval.
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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.
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 REPLACEMENTS
The applicant is required to plant replacement trees in accordance with the Protected
Tree Ordinance and per the approved replacement plan.
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:
a. 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.
b. Signs indicating the protected status of the tree shall be installed on the protective
fencing.
c. Tree protection conditions shall be posted on the tree protection fencing.
d. No parking or vehicle traffic shall be allowed under root zones, unless using
buffers approved by the Project Arborist.
e. 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.
f. Wood chip mulch shall be evenly spread inside the tree projection fence to a four-
inch depth.
g. 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
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incongruent with the site-wide tree replacement plan in the report shall be required
to be removed and replaced.
7. TREE AND LANDSCAPE 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.
10. INDEMNIFICATION
To the fullest extent permitted by law, the applicant shall indemnify, defend with the
attorneys of the City’s choice, and hold harmless the City, its City Council, and its
officers, employees, and agents (collectively, the “indemnified parties”) from and
against any liability, claim, action, cause of action, suit, damages, judgment, lien, levy,
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 related to this
Resolution/Action Letter, the related entitlements, 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 (thirty) days following receipt of
invoices from City. Such attorneys’ fees and costs shall include amounts paid to the
City’s outside counsel 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. The applicant shall likewise indemnify, defend, and hold
harmless the indemnified parties from and against any damages, attorneys’ fees, or
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costs awards, including attorneys’ fees awarded under Code of Civil Procedure
section 1021.5, assessed or awarded against the indemnified parties.
11. 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 9th day of January 2020 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/Albert Salvador
Ellen Yau Albert Salvador
Associate Planner Assistant Director of Community Development