DIR-2020-006 Action LetterCITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014 (408) 777-3308
To: Mayor and City Council Members
Chairperson and Planning Commissioners
From: Benjamin Fu, Director of Community Development
Prepared by: Ellen Yau, Associate Planner
Date: August 4, 2020
Subject: Director's Minor Modification, DIR-2020-006, to allow for the construction
of a new pergola with above -ground cremains in the Veteran's Memorial
section at the Gate of Heaven Cemetery located at 22555 Cristo Rey Drive,
APN 342 63 005.
Chapter 19.164 of the Cupertino Municipal Code allows for administrative
approval of minor changes in a project. The Director reports his decision to the
City Council and Planning Commission in time to allow an appeal of the decision
within 14-calendar days.
BACKGROUND
The Gate of Heaven Cemetery, located in the
Oak Valley neighborhood, was annexed in
1986 from the County of Santa Clara. The
Cemetery is bounded by the Oak Valley
Development to the north and east, the
Monta Vista PG&E substation to the east, the
historic Snyder Hammond House to the
south, and Rancho San Antonio Preserve to
the south and west.
The cemetery operated under a Santa Clara
County Use Permit approved in 1962 which
permitted the cemetery use and the location
and development of access driveways.
Figure 1: Aerial View
Currently, there is no Master Plan in place
for the Gate of Heaven development. Since annexation, Gate of Heaven has obtained
several City of Cupertino permits to develop vacant and undeveloped land for additional
burials, niches, and accessory facilities as needed.
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The Veteran's Memorial section (see red outline in Figure 1) was approved for 625 ground
burials and 144 above -ground cremains in 2005 with a Conditional Use Permit (U-2005-
04). These have since been constructed and sold. At this time, the applicant is proposing
an additional 216 cremains to be built in this section of the cemetery. Since this project
proposes to construct niches that exceeds the total number of cremains approved in this
area, the applicant is requesting a transfer of 216 approved units from the St. Mary's
section to the Veterans Memorial section. The St. Mary's section was approved with 750
above -ground cremains under ASA-2011-01 and M-2011-01; therefore, the approval of
this modification will reduce the St. Mary's above -ground cremains from 750 units to 534
units. If, later, the property owner proposes increases to the total number of burials and
cremains for the property, a conditional use permit and associated architectural and site
approval will be required.
Existing Above -
Ground Cremains
Transfer of Allocations
Total
Veteran's
144
360
Memorial
St. Mary's
750
-216
534
DISCUSSION
The applicant, Irving Gonzales of G7A representing the Gate of Heaven Cemetery, is
proposing a new pergola with niche banks to hold above -ground cremains, adjacent to
an existing pergola (see Figure 2), in the Veteran's Memorial section at the Gate of Heaven
Cemetery. The proposed pergola is designed to complement the recently built Mission
Style entry gates and consistent in size with the existing pergola adjacent to it.
The proposal includes:
• A wood -frame pergola measuring 21'-0" by 10'-0" with a height of 10'-3"
• An on -grade concrete slab that measures 30'-0" by 18'-8"
• Three niche banks that accommodate 36 niches on each side
• An ADA accessible 6'-0" wide pathway from the roadway to the new concrete pad
and another that connects to the existing pergola
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t
b
EXISTING PERGOLA AND PROPOSED NEW PERG0LAANQ
NICHES NICHES
Figure 2: South elevation
The proposed pergola is more than 100' feet away from the property line shared with
single-family residences to the north. No trees are proposed to be removed with this
proposal and no other modifications have been reviewed or anticipated as part of this
permit. Since the area impacted by the construction is less than 600 sq. ft. and the proposal
does not increase the overall number of burials and cremains at the Cemetery, this is not
an intensification of the use and therefore, considered a minor change.
Neighborhood Outreach
Prior to submitting the application for the minor modification, the applicant conducted
outreach to the single-family homeowners along Canyon Oak Way, adjacent to the shared
property line to the north of the cemetery. The applicant received emailed responses from
two neighbors who were in support of the approval of the proposal.
Additionally, once the project was deemed complete, staff sent notices to adjacent
properties which included the same neighbors, four residences further north, the County
of Santa Clara, the Cupertino Historical Society, and PG&E. No additional comments
were received.
ACTION
The Director of Community Development deems the project categorically exempt from
environmental review under CEQA Guidelines, Article 19, Section 15301: Existing
Facilities and further deems the modification minor and approves the project with the
following conditions of approval:
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1. APPROVED EXHIBITS
Approval is based on exhibits titled "Veterans' Pergola", prepared by G7A, consisting
of three sheets dated May 1, 2020, and labeled A00.0, A01.0, and A02.0, except as may
be amended by the conditions contained in this resolution.
2. ACCURACY OF THE 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. PREVIOUS CONDITIONS OF APPROVAL
All prior conditions of approval through past approvals shall remain in effect unless
superseded by or in conflict with subsequent conditions of approval and as
specifically amended by this Director's Minor Modification approval.
4. TOTAL BURIALS AND CREMAINS APPROVED
The following table indicates the total number of burials and cremains approved at
the St. Mary's and Veteran's Memorial sections at the Gate of Heaven Cemetery:
Above -Ground
In -Ground Burials
Total
Cremains
Veteran's
625
360
985
Memorial
2,714 in -ground
burials
1,138 in -ground
St. Mary's
534
4,636
terraced burials
250 in -ground
cremains
Total
4,727
894
5,621
5. DUST CONTROL
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:
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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 two 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.
6. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS
a. All grading activities shall be limited to the dry season (April 15 to October 1),
unless permitted otherwise by the Director of Public works.
b. Construction hours and noise limits shall be compliant with all requirements of
Chapter 10.48 of the Cupertino Municipal Code.
c. Grading, street construction, underground utility and demolition hours for work
done more than 750 feet away from residential areas shall be limited to Monday
through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to 6 p.m.
Grading, street construction, demolition or underground utility work within 750
feet of residential areas shall not occur on Saturdays, Sundays, holidays, and
during the nighttime period as defined in Section 10.48.053(b) of the Municipal
Code.
d. Construction activities shall be limited to Monday through Friday, 7 a.m. to 8 p.m.
and Saturday and Sunday, 9 a.m. to 6 p.m. Construction activities are not allowed
on holidays as defined in Chapter 10.48 of the Municipal Code. Nighttime
construction is allowed if compliant with nighttime standards of Section 10.48 of
the Cupertino Municipal Code.
e. Rules and regulations pertaining to all construction activities and limitations
identified in this permit, along with the name and telephone number of an
applicant appointed disturbance coordinator, shall be posted in a prominent
location at the entrance to the job site.
f. The applicant shall be responsible for educating all contractors and subcontractors
of said construction restrictions.
The applicant shall comply with the above grading and construction hours and noise
limit requirements unless otherwise indicated
7. BUILDING AND FIRE CODE
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The applicant shall apply for and obtain building permits to allow the construction of
the approved project. The applicant shall provide information and plans to allow the
Building Official and the Fire Marshall or their designee that the proposed plans
comply with Building and Fire Codes in effect at the time of application for a building
permit.
8. EXTERIOR MATERIALS/TREATMENTS
The final exterior plan shall closely resemble the details shown on the original
approved plans. Final exterior treatment plan (including but not limited to details on
exterior color, materials, architectural treatments, doors, windows, lighting fixtures,
and/or embellishments) shall be reviewed and approved by the Director of
Community Development prior to issuance of building permits to ensure quality and
consistency. Any exterior changes determined to be substantial by the Director of
Community Development shall either require a modification to this permit or a new
permit based on the extent of the change.
9. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible for consulting 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
As part of the application, to the fullest extent permitted by law, the applicant shall
agree to 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 (collectively referred to as
"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 any Ordinance,
Resolution, or action approving the project, the related entitlements, environmental
review documents, finding or determinations, or any other permit or approval
authorized for the project. The indemnification shall include but not be limited to
damages, fees, and costs awarded against the City, if any, and cost of suit, attorneys'
fees, and other costs, liabilities, and expenses incurred in connection with such
proceeding whether incurred by the Applicant, the City, or the parties initiating or
bringing such proceeding.
The applicant shall agree to (without limitation) reimburse the City its actual
attorneys' fees and costs incurred in defense of the litigation. Such attorneys' fees and
costs shall include amounts paid to the City's outside counsel and shall include City
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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 agree to indemnify, defend, and hold harmless the indemnified parties from
and against any damages, attorneys' fees, or costs awards, including attorneys' fees
awarded under Code of Civil Procedure section 1021.5, assessed or awarded against
the indemnified parties. The Applicant shall cooperate with the City to enter a
Reimbursement Agreement to govern any such reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment) if made necessary by
proceedings challenging the project approvals and related environmental review, if
the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
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.
This Director's approval is effective until August 4, 2022. The 14-calendar-day appeal
period will expire on August 18, 2020.
Enclosures:
Attachment A: Plan set
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