CC Ordinance No. 21-2232 Adding Chapter 17.04 to Adopt Standard Environmental Protection RequirementsORDINANCE NO.21-2232
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
ADDING CHAPTER 17.04 (STANDARD ENVIRONMENTAL PROTECTION
REQUIREMENTS) TO THE CUPERTINO MUNICIPAL CODE
The City Council of the City of Cupertino finds that:
1. WHEREAS, requiring all projects involving construction, grading, excavation, or
tree removal activity that require a permit or approval by the City to comply with
applicable standard environmental protection requirements, based on objective
standards, will reduce the environmental consequences of projects that are not
subject to review under the California Environmental Quality Act; and
2. WHEREAS, amending the Cupertino Municipal Code to specify the standard
environmental protection requirements that apply to projects for which City
permits for or approval of construction, grading, excavation, or tree removal
activity is required will provide certainty to project applicants; and
3. WHEREAS, the City Council desires to have objective standards applicable to
projects that are clear and understandable to ensure there are no unacceptable
risks to human health or safety or the environment; and
4. WHEREAS, the Planning Commission held a duly noticed public hearing on
September 28.2021 regarding the proposed ordinance; and
5. WHEREAS, the Planning Commission reviewed the proposed ordinance and
adopted Resolution No. 6930 on a 3-2 vote (No: Madhdhipatla and Wang)
recommending that the City Council adopt the proposed ordinance; and
6. WHEREAS, the City of Cupertino wishes to adopt the standard environmental
protection requirements.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES
ORDAIN AS FOLLOWS:
SECTION 1. Adoption.
The City of Cupertino hereby adopts Standard Environmental Protection Requirements
and amends the Cupertino Municipal Code as set forth in Attachment A.
Ordinance No. 21-2232
Page 2
SECTION 2: Severability and Continuity.
The City Council declares that each section, sub -section, paragraph, sub -paragraph,
sentence, clause and phrase of this ordinance is severable and independent of every other
section, sub -section, paragraph, sub -paragraph, sentence, clause and phrase of this
ordinance. If any section, sub -section, paragraph, sub -paragraph, sentence, clause or
phrase of this ordinance is held invalid, or its application to any person or circumstance,
be determined by a court of competent jurisdiction to be unlawful, unenforceable or
otherwise void, the City Council declares that it would have adopted the remaining
provisions of this ordinance irrespective of such portion, and further declares its express
intent that the remaining portions of this ordinance should remain in effect after the
invalid portion has been eliminated. To the extent the provisions of this Ordinance are
substantially the same as previous provisions of the Cupertino Municipal Code, these
provisions shall be construed as continuations of those provisions and not as an
amendment to or readoption of the earlier provisions.
SECTION 3: California Environmental Oualityct.
This Ordinance is not a project under the requirements of the California Environmental
Quality Act, Public Resources Code Section 21000 et. seq., and, together with related State
CEQA Guidelines, California Code of Regulations Section 15000 et. seq., (collectively,
"CEQA") because it has no potential for resulting in physical change in the environment.
In the event that this Ordinance is found to be a project under CEQA, it is subject to the
CEQA exemption contained in CEQA Guidelines Section 15061(b)(3) (General Rule)
because it can be seen with certainty to have no possibility that the action approved may
have a significant effect on the environment. CEQA applies only to actions which have
the potential for causing a significant effect on the environment. Where it can be seen
with certainty that there is no possibility that the activity in question may have a
significant effect on the environment, the activity is not subject to CEQA.
In this circumstance, the proposed action, adoption of new standard environmental
protection requirements, would have no or only a de minimis effect on the environment
because it does not commit the City to any particular project. In addition, the new
standard environmental protection requirements consist of previously adopted
mitigation measures, City conditions of approval, existing regulatory requirements, and
other best practices and are adopted for the purpose of reducing the effects of land use
development and infrastructure projects on the environment. The foregoing
determination is made by the City Council in its independent judgment.
Ordinance No. 21-2232
Page 3
SECTION 4: Effective Date.
This Ordinance shall take effect thirty (30) days after adoption as provided by
Government Code Section 36937.
SECTION 5: Publication.
The City Clerk shall give notice of adoption of this Ordinance as required by law.
Pursuant to Government Code Section 36933, a summary of this Ordinance may be
prepared by the City Clerk and published in lieu of publication of the entire text. The
City Clerk shall post in the office of the City Clerk a certified copy of the full text of the
Ordinance listing the names of the City Council members voting for and against the
ordinance.
INTRODUCED at a regular meeting of the Cupertino City Council on October 19,
2021, and ENACTED at a regular meeting of the Cupertino City Council on November
2, 2021, by the following vote:
Members of the City Council
AYES: Paul, Chao, Moore, Willey, Wei
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
—�
// i / 7/Z-v Z l
Darcy Pa , Mayor
Date
City of Cu rtino
ATTEST:
Kirsten Squarcia, CAClerk
Date
APPROVED AS TO FORM:
Nov 5, 2021
Chris Jensen, City Attorney
Date
Attachment A - Adding Chapter 17.04 (Standard Environmental Protection
Requirements)
The sections of the Cupertino Municipal Code set forth below are adopted as follows:
Add new Chapter 17.04 (Standard Environmental Protection Requirements) to Title 17
CHAPTER 17.04 Standard Environmental Protection Requirements
Section
17.04.010 Purpose
17.04.020 Definitions
17.04.030 Applicability
17.04.040 Standard Environmental Protection Technical Report Submittal Requirements
17.04.050 Standard Environmental Protection Permit Submittal Requirements
17.04.060 Violations
17.04.010 Purpose.
The purpose of this chapter is to identify standard environmental protection
requirements that all construction projects must meet, including but not limited to
environmental mitigation measures identified in any environmental documents required
as part of a General Plan update.
17.04.020 Definitions.
The following words and phrases when used in this chapter shall have the following
meanings set forth in this section:
A. "Applicable Construction Document" means a construction management plan or a
permit plan, which are the project plans associated with permit applications.
B. "Approval" means issuance of permits under Title 18 or Title 19, and when permits
pursuant to Title 18 or Title 19 are not required issuance of other required City permits
by the City of Cupertino.
C. "Construction Management Plan" means a document that includes the details the
construction manager is required to enforce to minimize potential construction
impacts related to construction crew parking, equipment staging, off -site circulation,
noise, and air quality on residents and commercial operations during the construction
phase.
Attachment A - Page 1
Ordinance No. 21-2232
Page 2
D. "Construction" or "Ground -disturbing activities" include any paving, excavation, soil
removal, grading, utility trenching, removal of foundations and structures, regardless
of whether the soils have been previously disturbed or not.
E. "Permit" means any discretionary or ministerial permit or approval that is required
pursuant to Title 14, Title 16, Title 18, or Title 19 of the Cupertino Municipal Code to
allow a project.
F. "Permit Plan" means any project plan(s) that are required for permit approval
pursuant to Title 14, Title 16, Title 18, or Title 19 of the Cupertino Municipal Code to
allow a project.
G. "Project" means any construction, ground -disturbing activity, subdivision, or tree
removal activity.
H. "Project Applicant" means the project proponent or property owner.
I. "Regulated Projects" means any development that is subject to oversight by an
environmental regulatory agency, including but not limited to oversight by the State
Water Resources Control Board and other similar agencies.
"Sensitive Receptor" means the types of land uses, populations, and buildings or
structures that are considered sensitive to air pollution, noise, and vibration.
1. Air quality -sensitive population groups include children, the elderly, the acutely
ill, and the chronically ill, especially those with cardiorespiratory diseases.
Disadvantaged communities identified in CalEnviroScreen 3.0 (i.e., environmental
justice communities), as subsequently revised, supplemented, or replaced, may be
disproportionately affected by and vulnerable to poor air quality.
2. Noise -sensitive receptors include land uses where quiet environments are
necessary for enjoyment and public health and safety. Residences, schools, hotels,
libraries, religious institutions, hospitals, and nursing homes are examples.
3. Vibration -sensitive receptors include land uses residences and buildings where
people normally sleep (e.g., residences and hotels, and buildings or structures that
are susceptible to architectural damage (e.g., non -engineered timber and masonry
buildings and historic buildings).
K. "Tenant Improvement" means any construction activity that modifies interior space
in non-residential space.
L. "Tree" means Protected Trees and Public Trees under the Cupertino Municipal Code,
unprotected trees, or any other vegetation suitable for nesting birds.
Standard Environmental Protection Requirements - Page 2
Ordinance No. 21-2232
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17.04.030 Applicability and Demonstration of Compliance.
A. Every project within the City of Cupertino shall comply with all applicable standard
environmental protection requirements identified in Section 17.04.040 and Section
17.04.050.
B. Compliance with the requirements shall be demonstrated as follows:
1. For all non-residential projects, residential projects involving the development of
four or more residential units, and mixed -use projects, compliance shall be
demonstrated through submittal and implementation of a construction
management plan and/or permit plans, as applicable, prior to issuance of an
approval to the satisfaction of the City.
2. For residential projects with three or fewer units, for residential
additions/remodels and Tenant Improvements, compliance shall be demonstrated
on permit plans to the satisfaction of the City.
3. For projects that do not require the issuance of a permit and for tree removal
projects, the property owner must demonstrate compliance by ensuring that all
applicable standard environmental protection requirements are implemented.
17.04.040 Standard Environmental Protection Technical Report Submittal
Requirements.
Every project shall implement the following standard environmental protection technical
report submittal requirements, which reports are subject to third -party peer review under
the direction of the City at the applicant's cost, prior to the approval of the project unless
they are not applicable to the project as demonstrated by a written explanation of why
any standard environmental protection technical report submittal requirement is not
applicable to the project, subject to the review and approval of the Director of Community
Development and/or the City Engineer, or his or her designee, as appropriate:
A. Air Quality Technical Requirements
1. Control Diesel Particulate Matter from Non -Residential Projects During
Operation. Applicants for new non-residential land uses within the city that either
have the potential to generate 100 or more diesel truck trips per day or have 40 or
more trucks with operating diesel -powered Transport Refrigeration Units (TRUs),
or are within 1,000 feet of a sensitive land use (e.g., residential, schools, hospitals,
nursing homes), as measured from the property line of the project to the property
line of the nearest sensitive use, shall:
a. Prepare and submit an operational Health Risk Assessment (HRA) for
approval by the City prior to approval of the project.
Standard Environmental Protection Requirements - Page 3
Ordinance No. 21-2232
Page 4
b. The HRA shall be prepared in accordance with policies and procedures of the
State Office of Environmental Health Hazard Assessment (OEHHA) and the
Bay Area Air Quality Management District (BAAQMD).
c. If the HRA shows that the incremental cancer risk exceeds ten in one million
(10E-06), PM2.5 concentrations exceed 0.3 micrograms per cubic meter (µg/m3),
or the appropriate noncancer hazard index exceeds 1.0, the project applicant
shall be required to identify and demonstrate that Best Available Control
Technologies for Toxics (T-BACTs) are capable of reducing potential cancer
and noncancer risks to an acceptable level, including appropriate enforcement
mechanisms.
d. T-BACTs identified in the HRA shall be indicated in the appropriate applicable
construction document prior to approval of the project. T-BACTs may include
the following measures from BAAQMD's Planning Healthy Places Guidebook but
are not limited to:
i. Restricting nonessential idling on -site to no more than two minutes.
ii. Providing electric charging capable truck trailer spaces to accommodate
Zero Emissions (ZE) Trucks.
iii. Providing electric charging capable warehousing docks to accommodate
ZE Transport Refrigeration Units (TRUs).
iv. Requiring use of Near Zero Emissions (NZE) or ZE equipment (e.g., yard
trucks and forklifts) and/or vehicles.
v. Restricting offsite truck travel through the creation of truck routes.
2. Manage Indoor Air Pollution.
a. Applicants for residential and other sensitive land use projects (e.g., hospitals,
nursing homes, day care centers) in areas identified on the Bay Area Air
Quality Management District's (BAAQMD) "Conduct Further Study' on the
Planning Healthy Places Map shall:
i. Prepare and submit an operational Health Risk Assessment (HRA) to the
City prior to approval of the project.
ii. The HRA shall be prepared in accordance with policies and procedures of
the State Office of Environmental Health Hazard Assessment (OEHHA)
and BAAQMD. The latest OEHHA guidelines shall be used for the analysis,
including age sensitivity factors, breathing rates, and body weights
appropriate for children ages 0 to 16 years.
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Ordinance No. 21-2232
Page 5
iii. If the HRA shows that the incremental cancer risk exceeds ten in one million
(10E-06), PNh.5 concentrations exceed 0.3 micrograms per cubic meter
(µg/m3), or the appropriate noncancer hazard index exceeds 1.0, the project
applicant shall identify and demonstrate measures that are capable of
reducing potential cancer and non -cancer risks to an acceptable level (i.e.,
below ten in one million or a hazard index of 1.0), including appropriate
enforcement mechanisms.
iv. Measures to reduce risk may include, but are not limited to:
1. Air intakes located away from high volume roadways and/or truck
loading zones.
2. Heating, ventilation, and air conditioning systems of the buildings
provided with appropriately sized Minimum Efficiency Reporting
Value (MERV) filters.
b. Applicants for residential and/or other sensitive land use projects (e.g.,
hospitals, nursing homes, day care centers) must state in the applicable
construction document where the site is located on the Bay Area Air Quality
Management District (BAAQMD) Planning Healthy Places Map, as
subsequently revised, supplemented, or replaced. If the site is located in an
area identified as "Implement Best Practices," the project applicant shall
implement, and include in applicable construction documents, the following
best practices identified in the BAAQMD Planning Healthy Places Guidebook:
i. Install air filters rated at a MERV 13 or higher.
ii. Locate operable windows, balconies, and building air intakes as far away
from any emission source as is feasible.
iii. Incorporate solid barriers or dense rows of trees in a minimum planter
width of 5 feet per row of trees between the residential and/or sensitive land
use, and the emissions source into site design.
iv. Do not locate residential and/or sensitive land use on the ground floor units
of buildings near non -elevated sources (e.g., ground level heavily traveled
roadways and freeways).
c. The project applicant shall include the applicable measures identified in
subsections (a) and (b) above in the applicable construction documents prior to
approval of the project. Specifically, the air intake design and MERV filter
requirements shall be included on all applicable construction documents
submitted to the City and verified by the City's Planning Division.
Standard Environmental Protection Requirements - Page 5
Ordinance No. 21-2232
Page 6
B. Hazardous Materials
Manage Soil and/or Groundwater Contamination. Projects that involve tree
removal only are not subject to this Section B. For projects s that involve a change of
land use (e.g., commercial to residential), development of uses that will be occupied
or used. by sensitive receptors, development of a net new residential unit (not
including a Junior Accessory Dwelling unit or Accessory Dwelling unit), new
construction of non-residential and/or mixed -use development, or subdivisions,
except as provided for in Section B.3, the project applicant shall complete Section B.1
and B.2, as required, prior to approval of the project.
1. Phase I ESA. Retain the services of a qualified environmental consultant with
experience preparing Phase I Environmental Site Assessments (ESAs) to prepare
a Phase I ESA in accordance with the American Society for Testing and Materials
(ASTM) Standards on Environmental Site Assessments, ASTM E 1527-13 (ASTM
1527-13) and in accordance with the U.S. Environmental Protection Agency's
(EPA's) Standards and Practices for All Appropriate Inquiries (40 Code of Federal
Regulations 312), published November 2005, as subsequently revised,
supplemented, or replaced. The goal of an ASTM Phase I ESA is to evaluate site
history, existing observable conditions, current site use, and current and former
uses of surrounding properties to identify the potential presence of Recognized
Environmental Conditions (RECs) as defined in ASTM E 1527-13, associated with
the site. If the Phase I ESA does not identify any RECs, then no further action is
needed. If the Phase I ESA identifies RECs, then a Phase II ESA shall be prepared
as described in Section B.2.
2. Phase II ESA. A Phase II ESA shall be prepared by a qualified environmental
consultant and signed and stamped by a Professional Geologist or Professional
Engineer hired by the project applicant. The Phase II ESA shall include the
collection and analysis of samples designed to evaluate RECs identified in the
Phase I ESA, in compliance with ASTM standards, and a health risk assessment
to evaluate whether the RECs pose an unacceptable or potentially unacceptable
health risk to future users of the site. Depending on the health risks identified in
the Phase II ESA, the project applicant shall proceed as follows:
a. If the Phase II ESA identifies no unacceptable or potentially unacceptable
health risk associated with the RECs, then no further action is needed.
b. If the Phase II ESA identifies an unacceptable or a potentially unacceptable
health risk, the requirements related to soil remediation in Section 17.04.050B
shall apply.
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Ordinance No. 21-2232
Page 7
3. Focused Phase I and II ESAs. Projects that are on sites which are known to have
current or former orchards or other irrigated agricultural activities that were
active in 1950 or later are assumed to contain RECs associated with organic
pesticides and are required to prepare a Focused Phase I ESA that addresses only
RECs other than those associated with organic pesticides. Depending on the
contaminants found in the Focused Phase I ESA, the project applicant shall
proceed as follows:
a. If the Focused Phase I ESA identifies no other unacceptable or potentially
unacceptable health risks, then the project applicant shall prepare a Focused
Phase II ESA that addresses only the potential hazards associated with
organic pesticides.
b. If the Focused Phase I ESA identifies RECs other than organic pesticides, then
the project applicant shall prepare the Phase II ESA as described in Section
B.2 to address both the organic pesticides RECs and all other RECs.
C. Vehicle Miles Traveled Technical Report Requirements
Evaluate Vehicle Miles Traveled or VMT. Project applicants shall prepare a
vehicle miles traveled (VMT) analysis, which shall include a comparison of
existing VMT and project -generated VMT, for review and approval prior to project
approval, indicating that the project meets the standards in Section
17.08.040 (Vehicle Miles Traveled (VMT) Standards).
D. Vibration Technical Report Requirements
1. Manage Vibration During Construction. The project applicant shall provide
a vibration study to determine vibration levels due to construction to the City,
prior to approval of the project, when the following activities would occur
within the screening distance to buildings or structures: pile driving within 100
feet, vibratory roller within 25 feet, or other heavy equipment (e.g., bulldozer)
within 15 feet; and for historical structures: pile driving within 135 feet,
vibratory roller within 40 feet, or other heavy equipment within 20 feet. If
vibration levels due to construction activities exceeds 0.2 inches per second
peak particle velocity (in/sec PPV) at nearby buildings or structures, or 0.12
in/sec PPV at historical structures, the project shall implement the following
alternative methods/equipment:
a. For pile driving, one of the following options shall be used: caisson drilling
(drilled piles), vibratory pile drivers, oscillating or rotating pile installation
Standard Environmental Protection Requirements - Page 7
Ordinance No. 21-2232
Page 8
methods, or jetting or partial jetting of piles into place using a water injection
at the tip of the pile.
b. For paving, use a static roller in lieu of a vibratory roller.
c. For grading and earthwork activities, off -road equipment that shall be
limited to 100 horsepower or less.
Section 17.04.050 Standard Environmental Protection Permit Submittal
Requirements
Every project shall implement the following standard environmental protection permit
submittal requirements prior to the issuance of.permits by the City unless they are not
applicable to the project as demonstrated by a written explanation of why any standard
environmental protection permit submittal requirement is not applicable to the project,
subject to the review and approval of the Director of Community Development and/or
the City Engineer, or his or her designee, as appropriate:
A. Air Quality Permit Requirements
1. Control Fugitive Dust During Construction. Projects shall implement the Bay
Area Air Quality Management District Basic Control Measures included in the
latest version of BAAQMD's CEQA Air Quality Guidelines, as subsequently
revised, supplemented, or replaced, to control fugitive dust (i.e., particulate matter
PM2.5 and PMio) during demolition, ground disturbing activities and/or
construction. The project applicant shall include these measures in the applicable
construction documents, prior to issuance of the first permit.
2. Control Construction Exhaust. Projects that disturb more than one -acre and are
more than two months in duration, shall implement the following measures and
the project applicant shall include them in the applicable construction document,
prior to issuance of the first permit:
a. Utilize off -road diesel -powered construction equipment that is rated by the
U.S. Environmental Protection Agency (EPA) as Tier 4 or higher for equipment
more than 25 horsepower. Any emissions control device used by the contractor
shall achieve emissions reductions that are no less than what could be achieved
by a Tier 4 interim emissions standard for a similarly sized engine, as defined
by the California Air Resources Board's (GARB) regulations. Applicable
construction documents shall clearly show the selected emission reduction
strategy for construction equipment over 25 horsepower.
b. Ensure that the construction contractor shall maintain a list of all operating
equipment in use on the project site for verification by the City. The
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Ordinance No. 21-2232
Page 9
construction equipment list shall state the makes, models, and number of
construction equipment on -site.
c. Ensure that all equipment shall be properly serviced and maintained in
accordance with the manufacturer's recommendations.
3. Control Volatile Organic Compound Emissions from Paint. Projects shall use
low-VOC paint (i.e., 50 grams per liter [g/L] or less) for interior and exterior wall
architectural coatings. The project applicant shall include the use of low-VOC
paint in the applicable construction documents prior to issuance of the first permit.
B. Hazardous Materials Permit Requirements
Soil Remediation Required. If a Focused or other Phase II ESA, as required pursuant
to Section 17.04.040(B)(1), identifies an unacceptable or a potentially unacceptable
health risk, the project applicant shall, depending on the contaminant, contact either
the Environmental Protection Agency (EPA), Department of Toxic Substances Control
(DTSC), Regional Water Quality Control Board (RWQCB) or local Certified Unified
Program Agency (CUPA). The project applicant shall enter into a regulatory agency
oversight program with an appropriate regulatory agency, or an established
voluntary oversight program alternative with an appropriate regulatory agency, as
determined by the City, and follow the regulatory agency's recommended response
actions until the agency reaches a no further action determination, prior to issuance
of any permit for a project that allows ground disturbing activity.
C. Greenhouse Gas Emissions and Energy Permit Requirements
Reduce Greenhouse Gas Emissions (GHG) and Energy Use. The project applicant
shall complete the City of Cupertino Climate Action Plan — Development Project
Consistency Checklist, for review and approval by the City Environment and
Sustainability Department prior to issuance of the first permit, to demonstrate how
the project is consistent with the Cupertino Climate Action Plan, as subsequently
revised, supplemented, or replaced, in order to reduce greenhouse gas emissions and
conserve energy.
D. Biological Resources Permit Requirements
1. Avoid Nesting Birds During Construction. For all projects that involve removal
of a tree (either protected or unprotected) or other vegetation suitable for nesting
birds, or construction or ground -disturbing activities defined in Section 17.04.020,
the project applicant shall comply with, and the construction contractor shall
indicate the following on all construction plans, when required to ensure the
Standard Environmental Protection Requirements - Page 9
Ordinance No. 21-2232
Page 10
following measures are performed to avoid inadvertent take of bird nests
protected under the federal Migratory Bird Treaty Act and California Department
of Fish and Game Code when in active use:
a. Demolition, construction, ground -disturbing, and tree removal/pruning
activities shall be scheduled to avoid the nesting season to the extent feasible.
If feasible, construction, ground -disturbing, or tree removal/pruning activities
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. Preconstructi.on surveys
(described below) are not required for construction, ground -disturbing, or tree
removal/pruning activities outside the nesting period.
b. If demolition, construction, ground -disturbing, or tree removal/pruning
activities occur during the nesting season (February 1 and August 31),
preconstruction surveys shall be conducted as follows:
i. No more than 7 days prior to the start of demolition, construction,
ground -disturbing, or tree removal/pruning activities, in order to identify
any active nests with eggs or young birds on the site and surrounding
area within 100 feet of construction or tree removal activities.
ii. Preconstruction surveys shall be repeated at 14-day intervals until
demolition, construction, ground -disturbing, or tree removal/pruning
activities have been initiated in the area, after which surveys can be
stopped. As part of the preconstruction survey(s), the surveyor shall
inspect all trees and other possible nesting habitats in, and immediately
adjacent to, the construction areas for active nests, while ensuring that
they do not disturb the nests as follows:
1. For projects that require the demolition or construction one single-
family residence, ground disturbing activities affecting areas of up to
500 square feet, or the removal of up to three trees, the property owner
or a tree removal contractor, if necessary, is permitted to conduct the
preconstruction surveys to identify if there are any active nests. If any
active nests with eggs or young birds are identified, the project
applicant shall retain a qualified ornithologist or biologist to identify
protective measures.
2. For any other demolition, construction and ground disturbing activity
or the removal of four or more trees, a qualified ornithologist or
biologist shall be retained by the project applicant to conduct the
preconstruction surveys.
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Ordinance No. 21-2232
Page 11
c. If the preconstruction survey does not identify any active nests with eggs or
young birds that would be affected by demolition, construction, ground -
disturbing or tree removal/pruning activities, no further mitigating action is
required. If an active nest containing eggs or young birds is found sufficiently
close to work areas to be disturbed by these activities, their locations shall be
documented, and the qualified ornithologist or biologist shall identify
protective measures to be implemented under their direction until the nests no
longer contain eggs or young birds.
d. Protective measures may include, but are not limited to, 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 or biologist, 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 ornithologist or
biologist, if project activities are determined to be adversely affecting the
nesting birds. Exclusion zones may be reduced by the qualified ornithologist
or 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 prepared by the qualified ornithologist or biologist and
submitted to the Director of Community Development or his or her designee,
through the appropriate permit review process (e.g., demolition, construction,
tree removal, etc.), and be completed to the satisfaction of the Community
Development Director prior to the start of demolition, construction, ground -
disturbing, or tree removal/pruning activities.
2. Avoid Special -Status Roosting Bats During Construction Permit Requirements
a. For all projects that involve demolition, renovation, or re -tenanting of an
abandoned or vacant building or structure, where the property owner cannot
show evidence to the satisfaction of the City of Cupertino Building Inspector
that the building or structure was appropriately sealed at the time the building
or structure was vacated to prevent bats from roosting, the project applicant
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Ordinance No. 21-2232
Page 12
shall retain a qualified biologist to conduct preconstruction surveys of the on -
site buildings or structures prior to commencing any demolition, renovation,
or re -tenanting activities. A building or structure is not appropriately sealed
unless seal holes that are more than 0.5 inches in diameter or cracks that are
0.25 by 1.5 inches or larger are filled or closed with suitable material such as
caulking, putty, duct tape, self -expanding polyurethane foam, 0.25-inch mesh
hardware cloth, 0.5-inch or smaller welded wire mesh, installing tighter -fitting
screen doors, or steel wool.
b. The project applicant shall comply with, and the construction contractor shall
include in the applicable construction documents, the following to ensure
appropriate preconstruction surveys are performed and adequate avoidance
provided for any special -status roosting bats, if encountered on the site.
Preconstruction surveys shall:
i. Be conducted by a qualified biologist prior to tree removal or building
demolition, renovation, or re -tenanting. Note that the preconstruction
survey for roosting bats is required at any time of year since there is no
defined bat roosting season as there is with nesting birds.
ii. Be conducted no more than 14 days prior to start of tree removal or
demolition, renovation, or re -tenanting.
iii. Be repeated at 14-day intervals until construction has been initiated after
which surveys can be stopped, unless construction activities are suspended
for more than 7 consecutive days at which point, the surveys shall be
reinitiated.
iv. If no special -status bats are found during the survey(s), then no additional
measures are warranted.
c. Protective measures shall be included in the applicable construction
documents and implemented prior to issuance of permits, if any special -status
bat species are encountered or for any roosts detected within the existing
structures, where individual bats could be inadvertently trapped and injured
or killed during demolition unless passively evicted in advance of construction
activities. Protective measures shall include:
i. If no maternity roosts are detected, adult bats can be flushed out of the
structure or tree cavity using a one-way eviction door placed over the exit
location for a minimum 48-hour period prior to the time tree removal or
building demolition is to commence.
ii. Confirmation by the qualified biologist that the one-way eviction door was
effective, and that all bats have dispersed from the roost location, modifying
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Ordinance No. 21-2232
Page 13
any exclusion efforts to ensure individual bats have been successfully
evicted in advance of initiating tree removal or building demolition.
iii. If a maternity roost is detected, and young are found roosting in a building
identified for demolition, renovation, or re -tenanting, work shall be
postponed until the young are flying free and are feeding on their own, as
determined by the qualified biologist.
iv. Once the qualified biologist has determined that any young bats can
successfully function without the maternity roost, then the adults and
young bats can be excluded from the structure to be demolished using the
one-way eviction methods described above.
v. Monitoring shall be provided by the qualified biologist as necessary to
determine status of any roosting activity, success of any required bat
exclusion, and status of any maternity roosting activity by bats, in the
remote instance a maternity roost is encountered on the site.
E. Cultural Resources Permit Requirements
1. Protect Archaeological Resources and Tribal Cultural Resources: For all
projects requiring ground -disturbing activities on land with no known
archaeological or tribal cultural resources that has not been previously
disturbed and/or where ground -disturbing activities would occur at a greater
depth or affect a greater area than previously disturbed, the following shall be
required:
a. Areas with No Known Cultural Resources. For all projects within areas
where there are no known cultural resources, prior to soil disturbance, the
project applicant shall provide written verification, including the materials
provided to contractors and construction crews, to the City confirming that
contractors and construction crews have been notified of basic
archaeological site indicators, the potential for discovery of archaeological
resources, laws pertaining to these resources, and procedures for protecting
these resources as follows:
i. Basic archaeological site indicators that may include, but are not limited
to, darker than surrounding soils of a friable nature; evidence of fires
(ash, charcoal, fire affected rock or earth); concentrations of stone, bone,
or shellfish; artifacts of stone, bone, or shellfish; evidence of living
surfaces (e.g., floors); and burials, either human or animal.
ii. The potential for undiscovered archaeological resources or tribal
cultural resources on site.
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Ordinance No. 21-2232
Page 14
iii. The laws protecting these resources and associated penalties, including,
but not limited to, the Native American Graves Protection and
Repatriation Act of 1990, Public Resources Code Section 5097, and
California Health and Safety Code Section 7050 and Section 7052.
iv. The protection procedures to follow should construction crews discover
cultural resources during project -related earthwork, include the
following:
1. All soil disturbing work within 25 feet of the find shall cease
2. The project applicant shall retain a qualified archaeologist to
provide and implement a plan for survey, subsurface
investigation, as needed, to define the deposit, and assessment of
the remainder of the site within the project area to determine
whether the resource is significant and would be affected by the
project.
3. Any potential archaeological or tribal cultural resources found
during construction activities shall be recorded on appropriate
California Department of Parks and Recreation forms by a
qualified archaeologist. If the resource is a tribal cultural resource,
the consulting archaeologist shall consult with the appropriate
tribe, as determined by the Native American Heritage
Commission, to evaluate the significance of the resource and to
recommend appropriate and feasible avoidance, testing,
preservation or mitigation measures, in light of factors such as the
significance of the find, proposed project design, costs, and other
considerations. The archeologist shall perform this evaluation in
consultation with the tribe.
b. Areas with Known Cultural Resources. For all projects within areas of known
cultural resources as documented in the 2015 General Plan EIR Table 4.4-2,
Cultural Resources in the Project Study Area and Vicinity, as subsequently
revised, supplemented, or replaced by the City, and the archaeological or
tribal cultural resources cannot be avoided, in addition to the requirements in
Section E.1.a for all construction projects with ground -disturbing activities,
the following additional actions shall be implemented prior to ground
disturbance:
i. The project applicant shall retain a qualified archaeologist to conduct a
subsurface investigation of the project site, and to ascertain the extent of
the deposit of any buried archaeological materials relative to the project's
Standard Environmental Protection Requirements - Page 14
Ordinance No. 21-2232
Page 15
area of potential effects, in consultation with a tribal representative as
applicable. The archaeologist shall prepare a site record and file it with the
California Historical Resource Information System and the City of
Cupertino.
ii. If the resource extends into the project's area of potential effects as
determined by the archaeologist, the resource shall be evaluated by a
qualified archaeologist to determine if the resource is eligible for listing on
the California Register of Historical Resources. If the qualified
archaeologist determines that the resource is not eligible, no further action
is required unless there is a discovery of additional resources during
construction (as required above for all construction projects with ground -
disturbing activities). If the qualified archaeologist determines that the
resource is eligible, the qualified archaeologist shall identify ways to
minimize the effect which the project applicant shall implement. A written
report of the results of investigations and mitigations shall be prepared by
the qualified archaeologist and filed with the California Historic Resources
Information System Northwest Information Center and the City of
Cupertino.
2. Protect Human Remains and Native American Burials. The project applicant
shall comply with California Health and Safety Code Section 7050.5 and California
Public Resources Code Section 5097.98.
a. In the event of discovering human remains during construction activities, there
shall be no further excavation or disturbance of the site within a 100-foot radius
of the remains, or any nearby area reasonably suspected to overlie adjacent
remains.
b. The Santa Clara County Coroner shall be notified immediately and shall make
a determination as to whether the remains are Native American.
c. If the Santa Clara County Coroner determines that the remains are not subject
to his authority, he shall notify the Native American Heritage Commission
(NAHC) within 24 hours.
d. The NAHC shall attempt to identify descendants (Most Likely Descendant) of
the deceased Native American.
e. The Most Likely Descendant has 48 hours following access to the project site to
make recommendations or preferences regarding the disposition of the
remains. If the Most Likely Descendant does not make recommendations
within 48 hours after being allowed access to the project site, the owner shall,
with appropriate dignity, reinter the remains in an area of the property secure
Standard Environmental Protection Requirements - Page 15
Ordinance No. 21-2232
Page 16
from further disturbance and provide documentation about this determination
and the location of the remains to the NAHC and the City of Cupertino.
Alternatively, if the owner does not accept the Most Likely Descendant's
recommendations, the owner or the descendent may request mediation by the
NAHC. Construction shall halt until the mediation has concluded.
F. Hydrology and Water Quality Permit Requirements
Control Stormwater Runoff Contamination. The project applicant shall
demonstrate compliance with Chapter 9.18 (Stormwater Pollution Prevention and
Watershed Protection) of the Cupertino Municipal Code, to the satisfaction of the
City of Cupertino. All identified stormwater runoff control measures shall be
included in the applicable construction documents.
G. Noise and Vibration Permit Requirements
1. Notice and Signage:
a. At least 10 days prior to the start of any demolition, ground disturbing, or
construction activities, the project applicant shall send notices of the planned
activity by first class mail as follows:
i. For projects on sites that are more than 0.5 acres or four or more residential
units the notices shall be sent to off -site businesses and residents within 500
feet of the project site;
ii. For projects on sites between 0.25 to 0.5 acres, or two or three residential
units (not including Accessory Dwelling Units) notices shall be sent to off -
site businesses and residents within 250 feet of the project site; or
iii. For projects on sites less than 0.25 acres or one residential unit, the notices
shall be sent to off -site businesses and residents within 100 feet of the
project site.
The notification shall include a brief description of the project, the activities
that would occur, the hours when activity would occur, and the construction
period's overall duration. The notification should include the telephone
numbers of the contractor's authorized representatives that are assigned to
respond in the event of a noise or vibration complaint. The project applicant
shall provide the City with evidence of mailing of the notice, upon request. If
pile driving, see additional noticing requirements in subsection 3(b) below.
b. At least 10 days prior to the start of construction activities, a sign shall be
posted at the entrance(s) to the job site, clearly visible to the public, which
Standard Environmental Protection Requirements - Page 16
Ordinance No. 21-2232
Page 17
includes permitted construction days and hours, as well as the telephone
numbers of the City's and contractor's authorized representatives that are
assigned to respond in the event of a noise or vibration complaint. If the
authorized contractor's representative receives a complaint, they shall
investigate, take appropriate corrective action, and report the action to the City
within three business days of receiving the complaint.
2. Manage Noise During Construction. Projects shall implement the following
measures to reduce noise during construction and demolition activity:
a. The project applicant and contractors shall prepare and submit a Construction
Noise Control Plan to the City's Planning Department for review and approval
prior to issuance of the first permit. The Construction Noise Plan shall
demonstrate compliance with daytime and nighttime decibel limits pursuant
to Chapter 10.48 (Community Noise Control) of Cupertino Municipal Code.
The details of the Construction Noise Control Plan shall be included in the
applicable construction documents and implemented by the on -site
Construction Manager. Noise reduction measures selected and implemented
shall be based on the type of construction equipment used on the site, distance
of construction activities from sensitive receptor(s), site terrain, and other
features on and surrounding the site (e.g., trees, built environment) and may
include, but not be limited to, temporary construction noise attenuation walls,
high quality mufflers. During the entire active construction period, the
Construction Noise Control Plan shall demonstrate that compliance with the
specified noise control requirements for construction equipment and tools will
reduce construction noise in compliance with the City's daytime and nighttime
decibel limits.
b. Select haul routes that avoid the greatest amount of sensitive use areas and
submit to the City of Cupertino Public Works Department for approval prior
to the start of the construction phase.
c. Signs will be posted at the job site entrance(s), within the on -site construction
zones, and along queueing lanes (if any) to reinforce the prohibition of
unnecessary engine idling. All other equipment will be turned off if not in use
for more than 5 minutes.
d. During the entire active construction period and to the extent feasible, the use
of noise producing signals, including horns, whistles, alarms, and bells will be
for safety warning purposes only. The construction manager will use smart
back-up alarms, which automatically adjust the alarm level based on the
background noise level or switch off back-up alarms and replace with human
spotters in compliance with all safety requirements and law.
Standard Environmental Protection Requirements - Page 17
Ordinance No. 21-2232
Page 18
3. Manage Vibrations During Construction: In the event pile driving is required,
the project applicant shall:
a. Notify all vibration -sensitive receptors within 300 feet of the project site of the
schedule 10 days prior to its commencement and include the contact
information for the person responsible for responding to complaints on site.
b. The project applicant shall retain a qualified acoustical consultant or structural
engineer, to prepare and implement a Construction Vibration Monitoring
Plan, which is subject to third -party peer review under the direction of the
City at the applicant's cost, for areas within 100 feet for pile driving, 25 feet for
vibratory roller, or 15 feet for other heavy equipment (e.g., bulldozer); and for
historical structures: within 135 feet for pile driving, 40 feet for vibratory
roller, or 20 feet for other heavy equipment. The plan shall include surveying
the condition of existing structures; and determining the number, type, and
location of vibration sensors and establish a vibration velocity limit (as
determined based on a detailed review of the proposed building), method
(including locations and instrumentation) for monitoring vibrations during
construction, location of notices displaying the contact information for on -site
coordination and complaints on site, and method for alerting responsible
persons who have the authority to halt construction should limits be exceeded
or damaged observed.
c. Submit final monitoring reports to the City upon completion of vibration
related construction activities.
d. Conduct a post -survey on any structure where either monitoring has
indicated high vibration levels or complaints that damage has occurred are
received.
e. The project applicant shall be responsible for appropriate repairs as
determined by the qualified acoustical consultant or structural engineer
where damage has occurred as a result of construction activities.
H. Paleontological Resources Permit Requirements
Protect Paleontological Resources During Construction. If paleontological
resources are encountered during ground disturbing and/or other construction
activities, all construction shall be temporarily halted or redirected to allow a
qualified paleontologist, which shall be retained by the project applicant, to assess
the find for significance. If paleontological resources are found to be significant,
the paleontological monitor shall determine appropriate actions, in coordination
Standard Environmental Protection Requirements - Page 18
Ordinance No. 21-2232
Page 19
with a qualified paleontologist, City staff, and property owner. Appropriate
actions may include, but are not limited to, a mitigation plan formulated pursuant
to guidelines developed by the Society of Vertebrate Paleontology and
implemented to appropriately protect the significance of the resource by
preservation, documentation, and/or removal, prior to recommencing activities.
Measures may include, but are not limited to, salvage of unearthed fossil remains
and/or traces (e.g., tracks, trails, burrows); screen washing to recover small
specimens; preparation of salvaged fossils to a point of being ready for curation
(e.g., removal of enclosing matrix, stabilization and repair of specimens, and
construction of reinforced support cradles); and identification, cataloging,
curation, and provision for repository storage of prepared fossil specimens.
I. Utilities and Service Systems Permit Requirements
1. Manage Wastewater Inflow and Infiltration to Sewer System. Project applicants
shall implement the following measures to reduce wastewater flow:
a. The project applicant shall demonstrate, to the satisfaction of the City of
Cupertino and Cupertino Sanitary District (CSD) that the project would not
exceed the peak wet weather flow capacity of the Santa Clara sanitary sewer
system by implementing one or more of the following methods:
i. Reduce inflow and infiltration in the CSD system to reduce peak wet
weather flows, or
ii. Increase on -site water reuse, such as increased grey water use, or reduce
water consumption of the fixtures used within the proposed project, or
other methods that are measurable and reduce sewer generation rates to
acceptable levels, to the satisfaction of the CSD.
The project's estimated wastewater generation shall be calculated using the
current generation rates used by the CSD unless alternative (i.e., lower)
generation rates achieved by the project are substantiated by the project
applicant based on evidence to the satisfaction of the CSD.
b. The project applicant shall obtain a letter of clearance from the Cupertino
Sanitary District and provide a copy of the letter of clearance to the City prior
to issuance of the first permit.
2. Ensure Adequate Water Supply and Infrastructure. The project applicant shall
obtain written approval from the appropriate water service provider for water
connections, service capability, and location and layout of water lines and
backflow preventers, prior to issuance of the first permit.
Standard Environmental Protection Requirements - Page 19
Ordinance No. 21-2232
Page 20
17.04.050 Violations
Violation of any of the standard environmental protection requirements, except for any
such standard environmental protection requirements that the Director of Community
Development and/or the City Engineer, or his or her designee, has deemed inapplicable
pursuant to Section 17.04.040 and Section 17.04.050, constitutes a violation of this Code.
Standard Environmental Protection Requirements - Page 20
ORD 21-2232, Adding Chapter 17.04 (Standard
Environmental Protection Requirements) to
Cupertino Muni Code
Final Audit Report 2021-11-05
Created: 2021-11-05
By: Araceli Alejandre (aracelia@cupertino.org)
Status: Signed
Transaction ID: CBJCHBCAABAAzOn58bJTBn-bvOoJjspTBK-dOHcisw9c
"ORD 21-2232, Adding Chapter 17.04 (Standard Environmental
Protection Requirements) to Cupertino Muni Code" History
I Document created by Araceli Alejandre (aracelia@cupertino.org)
2021-11-05 - 6:49:22 PM GMT- IP address: 73.170.27.253
C� Document emailed to Christopher Jensen (chrisj@cupertino.org) for signature
2021-11-05 - 6:51:59 PM GMT
Email viewed by Christopher Jensen (chrisj@cupertino.org)
2021-11-05 - 7:09:49 PM GMT- IP address: 104.47.73.254
d� Document e-signed by Christopher Jensen (chrisj@cupertino.org)
Signature Date: 2021-11-05 - 7:10:10 PM GMT - Time Source: server- IP address: 136.24.42.212
Agreement completed.
2021-11-05 - 7:10:10 PM GMT
Adobe Sign
GVPERTINO
STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA )
CITY OF CUPERTINO )
I, KIRSTEN SQUARCIA, City Clerk and ex-officio Clerk of the
City Council of the City of Cupertino, California, do hereby certify the
attached to be a true and correct copy of Ordinance No. 21-2232 which
was enacted on November 2, 2021, and that it has been published or
posted pursuant to law (G.C. 40806).
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 17th day of November 2021.
KIRSTEN SQUARCIA, City Clerk and Ex-officio Clerk
of the City Council of the City of Cupertino, California