TR-2021-035 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
December 8,2021
Simon Tunnicliffe
West Valley Arborists,Inc.
PO Box 162
Campbell, CA 95009
SUBJECT: TREE REMOVAL PERMIT ACTION LETTER-Application TR-2021-035
This letter confirms the decision of the Director of Community Development, given on
December 8, 2021, approving a Tree Removal Permit to consider the removal of one (1)
45"DBH protected Coast Live Oak located at 21408 Krzich Place.
Staff has made the necessary findings that the tree is irreversibly diseased,is in danger of
falling, can cause potential damage to existing or proposed essential structures, or
interferes with private on-site utility services and cannot be controlled or remedied
through reasonable relocation or modification of the structure or utility services. The
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 aborist report prepared by Simon
Tunnicliffe (ISA Certified Arborist WE-7505A) consisting of two (2) pages, a tree
removal site plan consisting of one (1) page, and photos of the subject tree consisting
of three (3) pages.
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. IN-LIEU TREE REPLACEMENT FEES
Prior to removal of the subject tree,the applicant shall pay the in-lieu tree replacement
fee to the City of Cupertino. Per the Protected Tree Ordinance, Chapter 14.18 of the
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Municipal Code, the in-lieu tree replacement fee for a tree with a trunk size greater
than 36-inches DBH shall be based upon the valuation of the removed tree by using
the most recent edition of the ISA Guide for Plant Appraisal published by the Council
of Tree and Landscape Appraisers. Per the Arborist Peer Review letter conducted by
Jillian Keller (ISA Certified Arborist WE-12057A), dated November 10, 2021 and
consisting of one (1) page, the subject tree is valued at $2,900. Per the Protected Tree
Ordinance,in the case where it is physically feasible to plant the required replacement
tree(s), but the applicant chooses to pay the in-lieu fee instead of planting the
replacement tree(s) on the subject property, payment shall be equivalent to one and
one-half the calculated in-lieu tree replacement fee. Therefore, the total tree
replacement fee is $4,350 in accordance with the Protected Tree Ordinance, Section
14.18.160(B)(3) and (4).
4. 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
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TR-2021-035
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.
5. 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.
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TR-2021-035
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.
6. 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.
Also, please note that an appeal of this decision can be made within fourteen (14)
calendar days from the date of this letter (Wednesday, December 22, 2021 at 5:00 PM).
Do NOT REMOVE THE TREE(S)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,n
Erika Poveda
Associate Planner
(408) 777-3257
erikap@cupertino.org
Enclosure: Removal and replacement plan
CC: Babu Nott,21408 Krzich Place, Cupertino, CA 95014