DIR-2021-023 Action Letter CITY 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 a�
Prepared by: Erika Poveda,Associate Planner
Date: November 10, 2021
Subject: Director's Minor Modification,DIR-2021-023,to consider a material change for an
existing second-story balcony in a Planned Residential Development zoning
district,located at 10140 Orange Avenue.
Chapter 19.164 of the Cupertino Municipal Code allows for administrative
approval of minor changes in a project. The Director reports their decision to the
City Council and Planning Commission in time to allow an appeal of the decision
within fourteen calendar days.
BACKGROUND
The applicants/property owners,Kathy Jakhua and George Datuashvili,are requesting a material
change for an existing second-story residential balcony at 10140 Orange Avenue. The subject
property is located in a Planned Residential Development zone, P(Res 4.4-7.7).
The existing residence was approved by the City in 1991 as part of a planned development
Tentative Map (TM-1990-11) and Use Permit (U-1990-14) for four single-family homes of
approximately 2,200 square feet each. Additionally, the property is subject to the Monta Vista
Specific Plan, Ordinance No. 1270. Per Ordinance No. 1270, it is intended that the requirements
of the zone in which the use is ordinarily permitted will be strived for. The subject property will
therefore strive for the Single-Family Residential (R-1) zone development standards. The site is
not located within the "Downtown Monta Vista' area, and therefore not subject to the Monta
Vista Design Guidelines,which regulates architectural style and materials within portions of the
Monta Vista Specific Plan area.
Permit history for the property also includes:
• DIR-2018-19: Allowed for architectural modifications to the existing residence.
• DIR-2019-004: Allowed for the construction of a front-facing second-story balcony with
cable railing.
Modifications to previously approved use permits are subject to review from the Director of
Community Development.
DIR-2021-023
10140 Orange Avenue Page 2
DISCUSSION
The applicant/property owner proposes to replace the existing second-story balcony cable railing
(see Figure 1),which was approved under DIR-2019-004,with new glass railing(see Figure 2).
4
'i"f'�•iar�. '
Figure 1.Cable railing(DIR-2019-004) Figure 2.Glass railing(DIR-2021-023)
The proposed project will not impact the existing lot coverage or floor area ratio of the existing
residence.The glass railing also does not alter the design,form,use,or accessibility of the balcony
and the residence. The design is consistent with a typical railing and balcony. Additionally, the
balcony complies with the second-story balcony setback requirements of the R-1 Ordinance. As
indicated in Condition#8,the property owner(s)shall record a covenant with the County of Santa
Clara prior to final occupancy. The covenant would inform future property owners of the
restriction against any modification or enlargement of the existing front-facing balcony without
obtaining appropriate Planning entitlement(s) and Building permit(s).
The proposed modification to replace the cable railing with a glass balcony railing is not expected
to have adverse privacy impacts to adjacent properties as the subject property owner has obtained
signed privacy waiver forms from the adjacent properties.
This neighborhood does not have a homeowner's association(HOA),therefore an HOA approval
letter was not required.
ACTION
The Director of Community Development deems the modification minor and approves the
project with the following conditions of approval:
1. APPROVED EXHIBITS
The approval is based on a plan set entitled, "Change of Style Residence, 10140 Orange Ave.,
Cupertino,CA 95014"prepared by Geo Design,consisting of four sheets labeled"A-1.0,A2.0,
A3.0,and A4.0," stamped as approved on October 21,2019,and a revised Sheet A4.1 stamped
as approved on November 10, 2021; and except as may be amended by the conditions
contained in this resolution.
DIR-2021-023
10140 Orange Avenue Page 3
2. ACCURACY OF THE 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. BUILDING PERMITS
The applicant shall consult with the City Building Division to obtain the necessary building
permits, or building permit revisions, prior to commencement of work.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the first page
of the building plans.
5. 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.
6. 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.
7. EXTERIOR BUILDING MATERIALS/TREATMENTS
The final building exterior plan shall closely resemble the details shown on the original
approved plans. Final building 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.
8. USE OF BALCONY SPACE COVENANT
The property owner shall record a covenant on this property to inform future property
owners of the restriction against any modification or enlargement of the existing front-facing
balcony without obtaining appropriate Planning entitlement(s) and Building permit(s). The
precise language will be subject to approval by the Director of Community Development.
Proof of recordation must be submitted to the Community Development Department prior to
final occupancy of the residence.
DIR-2021-023
10140 Orange Avenue Page 4
9. PRIVACY SCREENING REQUIREMENTS
The second-story balcony is subject to the privacy planting requirements of the Single-Family
Residential(R-1)Ordinance.Prior to issuance of building permits,the applicant shall provide
a final privacy planting plan consistent with the City's requirements and record a privacy
covenant with the County of Santa Clara to inform future property owners of the privacy
protection measures and tree protection requirements consistent with the R-1 Ordinance prior
to final occupancy. Alternatively, the applicant shall provide a City of Cupertino Privacy
Waiver form signed by the affected property owner(s) to be added to the project file prior to
building permit issuance.
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 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.
DIR-2021-023
10140 Orange Avenue Page 5
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.
This Director's approval is effective November 10, 2021. The 14-calendar-day appeal period will
expire on Wednesday, November 24, 2021 at 5:00 p.m.
Enclosure:
Plan set