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TR-2020-049 Action Letter CITY OF COMMUNITY DEVELOPMENT DEPARTMENT PLANNING DIVISION CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333 CUPERTINO CUPERTINO.ORG February 23, 2021 Arborwell Sam Oakley 2337 American Ave. Hayward, CA 94545 SUBJECT: TREE REMOVAL PERMIT ACTION LETTER—Application TR-2020-049 This letter confirms the decision of the Director of Community Development, given on February 23, 2021, approving a Tree Removal Permit to allow the removal and replacement of four (4) Red Ironbark (Eucalyptus sideroxylon) between 15 and 25 inches DBH at 10475 Bandley Dr. Based on the information submitted with the application, staff has made the following finding 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.This finding is necessary to grant the Tree Removal Permit in accordance with Cupertino Municipal Code (CMC) Section 14.18.180 (A)(1). The application is approved with the following conditions: 1. APPROVED PROJECT This approval for tree removal is based on the arborist report prepared by Samuel Oakley (ISA Board Certified Master Arborist, WE-9474-B TRAQ) consisting of nine (9) pages, including a removal and replacement plan, and a removal justification. 2. TREE REPLACEMENT The proposed replacement trees are four (4) 36"-box Valley Oak (Quercus Iobata)to be planted on the subject property within 30 days of tree removal. The applicant shall provide the Department of Community Development adequate documentation, including but not limited to photographs, receipts or invoices, to verify that the replacement trees have been planted. Should the proposed replacements fail within the establishment period (three years), the applicant shall provide replacements as required by this approval,either two 24-inch box trees or one 36-inch box tree for each tree originally removed. 3. PROTECTED TREES The applicant understands that 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 tree. The applicant shall also disclose the location and species of all protected trees on site upon sale of the property. 4. 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. 5. NESTING BIRDS Nests of raptors and other birds shall be protected when in active use, as required by the federal Migratory Bird Treaty Act and the California Department of Fish and Game Code. a. Construction and tree removal/pruning activities shall be scheduled to avoid the nesting season to the extent feasible. If feasible, tree removal and/or pruning shall be completed before the start of the nesting season to help preclude nesting. The nesting season for most birds and raptors in the San Francisco Bay area extends from February 1 through August 31. Preconstruction surveys (described below) are not required for tree removal or construction activities outside the nesting period. b. If construction activities and any required tree removal occur during the nesting season (February 1 and August 31), a qualified ornithologist shall be required to conduct surveys prior to tree removal or construction activities. Preconstruction surveys shall be conducted no more than 14 days prior to the start of tree removal, pruning or construction. Preconstruction surveys shall be repeated at 14-day intervals until construction has been initiated in the area after which surveys can be stopped. During this survey, the ornithologist shall inspect all trees and other possible nesting habitats in and immediately adjacent to the construction areas for nests. c. If the survey does not identify any nesting birds that would be affected by construction activities, no further mitigation is required. If an active nest containing viable eggs or young birds is found sufficiently close to work areas to be disturbed by these activities,their locations shall be documented and protective measures implemented under the direction of the qualified ornithologist until the nests no longer contain eggs or young birds. d. Protective measures shall include establishment of clearly delineated exclusion zones (i.e. demarcated by identifiable fencing, such as orange construction fencing or equivalent) around each nest location as determined by the qualified ornithologist, taking into account the species of birds nesting, their tolerance for disturbance and proximity to existing development. In general, exclusion zones shall be a minimum of 300 feet for raptors and 75 feet for passerines and other birds. The active nest within an exclusion zone shall be monitored on a weekly basis throughout the nesting season to identify signs of disturbance and confirm nesting status. The radius of an exclusion zone may be increased by the qualified biologist, if project activities are determined to be adversely affecting the nesting birds. Exclusion zones may be reduced by the qualified biologist only in consultation with California Department of Fish and Wildlife. The protection measures and buffers shall remain in effect until the young have left the nest and are foraging independently or the nest is no longer active. e. A final report on nesting birds and raptors,including survey methodology, survey date(s), map of identified active nests (if any), and protection measures (if required), shall be submitted to the Planning Manager, through the building permit review process, and be completed to the satisfaction of the Community Development Director prior to the start of grading. 6. 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: a. Water all exposed surfaces areas (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved access roads) 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. All haul trucks transporting soil, sand, or other loose material off-site shall be covered. c. All visible mud or dirt track-out onto adjacent public roads shall be removed using wet power vacuum street sweepers at least once per day. The use of dry power sweeping is prohibited. d. All vehicle speeds on unpaved roads shall be limited to 15 mph. e. All roadways, driveways, and sidewalks to be paved shall be completed as soon as possible. Building pads shall be laid as soon as possible after grading unless seeding or soil binders are used. f. Idling times shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to 5 minutes (as required by the California airborne toxics control measure Title 13, Section 2485 of California Code of Regulations [CCR]). Clear signage shall be provided for construction workers at all access points. g. All construction equipment shall be maintained and properly tuned in accordance with manufacturer's specifications. All equipment shall be checked by a certified mechanic and determined to be running in proper condition prior to operation. h. Post a publicly visible sign with the telephone number and person to contact at the Lead Agency regarding dust complaints. This person shall respond and take corrective action within 48 hours. The Air District's phone number shall also be visible to ensure compliance with applicable regulations. i. The applicant shall incorporate the City's construction best management practices into the building permit plan set prior to any grading, excavation, foundation or building permit issuance. 7. INDEMNIFICATION AND LIMITATION OF LIABILITY 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 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. 8. 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. Staff received comments from an adjacent property owner objecting to the proposed removals. Among the comments received include potential damage to property, tree maintenance issues, timing of tree removals, size of replacement trees, and wildlife within the trees. ■ Potential damage to property: The commenter questions the validity of the applicant's request that the trees be removed due to potential damage to property. The arborist report provided by the applicant indicates that several large branches of varying sizes have dropped in the parking lot in the last winter, including a branch which has damaged a vehicle. This arborist report was further peer reviewed by the City's consulting arborist, West Coast Arborist, Inc., per the City's requirements. The City's consulting arborist also indicated that Red Ironbark trees are prone to branch failure. ■ Lack of maintenance: The commenter asserts in her communication that the need for tree removal arises due to lack of ongoing maintenance of the trees. Upon a request by the City, the applicant has provided verification that maintenance has been performed on these trees. ■ Timing of tree removal: The commenter also questions the timing of the tree removal, due to perceived less than peak building occupancy due to the COVID-19 pandemic. The applicant has confirmed that the building is occupied and in use. As indicated in the arborist report,the trees have continually shed large branches of various sizes into the parking lot causing damage to vehicles. ■ Size of replacements: The commenter raised concerns about the size of the proposed replacement trees. The proposed replacements comply with the City's guidelines on tree replacements pursuant to the Municipal Code(Chapter 14.18—Protected Trees). The guidelines for replacement were developed based on the size of the removed tree and adopted by the City Council in 2014. Replacement trees are to be replanted within 30 days of a removal. ■ Wildlife: The commenter also raises a concern regarding nesting birds and other wildlife. A standard condition of approval has been added to ensure that nesting birds or their nests are not damaged during the tree removal. Also, please note that an appeal of this decision can be made within fourteen (14) calendar days from the date of this letter (Tuesday, March 9, 2021 at 5:00 PM). DO NOT REMOVE THE TREE(Sl until the end of the appeal period. If an appeal is filed, you will be notified of a public hearing date, which will be scheduled before the Planning Commission. Sincerely, Erick Serrano Senior Planner (408) 777-3205 ericks@cupertino.org Enclosure: Arborist Report, Removal and Replacement Plan, prepared by Arborwell Arborist Peer Review, prepared by West Costs Arborists, Inc. CC: Cathy Helgerson,20697 Dunbar Dr., Cupertino CA 95014