DIR-2022-009 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: Erika Poveda, Associate Planner
Date: June 3, 2022
Subject: Director's Minor Modification, DIR-2022-009, to modify the architectural
design and materials of previously approved Two -Story (R-2018-31) and
Minor Residential (RM-2018-26) Permits for a two-story residence located
at 10047 Crescent Road, APN 326-16-027.
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 subject property is located at
10047 Crescent Road in the
Creston-Pharlap neighborhood,
north of Cupertino Road and east
of Hillcrest Road (Figure 1). The
property is zoned R1-10 and is
subject to the Single -Family
Residential (R-1) Ordinance
(Chapter 19.28) of the Cupertino
Municipal Code.
Figure 1. Site Context
On February 14, 2019, the Director of Community Development approved a Two -Story
Permit (R-2018-31) and Minor Residential Permit (RM-2018-26) to allow the construction
of a 260-square-foot second -story addition and new second -story balcony to an existing
two-story residence located at 10047 Crescent Road. The project scope also included a 781
square -foot first -story addition and an 811 square -foot attached accessory dwelling unit.
Subsequently, on October 28, 2020, the Director approved a Director's Minor
Modification Permit (DIR-2020-012) to modify R-2018-31 and RM-2018-26 by allowing an
increase to the total building height from 24'-6" to 26'-6".
In February 2022, the applicant contacted Planning staff for guidance on compliance with
R-1 Ordinance privacy screening requirements, citing a lack of planting area on -site. Per
the R-1 Ordinance, privacy screening materials are required for all new and/or modified
second -story windows and balconies with views into neighboring rear or side yards. On
March 25, 2022, Planning staff conducted a site visit of 10047 Crescent Road to gain more
on -site context. During the site visit, Planning staff confirmed that the required privacy
screening plantings had not yet been installed due to issues with hardscaping and the
location of an approved retaining wall. Staff also observed that the as -built architectural
style and design materials of the residence did not closely resemble the approved plans
for planning permits, R-2018-31 and RM-2018-26, and associated building permit, B-2019-
0550 (Figures 2 and 3). Furthermore, the second -story covered balcony was constructed
with solid stucco walls, rather than the open railing approved through the planning and
building permits.
Figure 2. Approved front (east) elevation (B-2019-0550)
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Figure 3. As -built front (east) elevation
Per the conditions of approval for R-2018-31 and RM-2018-26, the final building exterior
plan shall closely resemble the details shown on the original approved plans. Any
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. A Director's Minor Modification is therefore required for the exterior
modifications to the project.
Planning staff notified the applicant and property owner on April 4, 2022, of the project
discrepancies found during the informational site visit and provided instructions on how
to apply for a Director's Minor Modification Permit to resolve the outstanding issues
mentioned above.
DISCUSSION
The applicant and property owner, Ethan Chen, is proposing a second minor
modification to the previously approved Two -Story (R-2018-31) and Minor Residential
(RM-2018-26) Permits for 10047 Crescent Road. The proposed modifications through
DIR-2022-009 include the following:
■ Install horizontal decorative wood siding on the front (east), right (north) and left
(south) elevations.
■ Revise the front garage door design to incorporate frosted glass and metal
materials.
■ Remove the stone veneer from the front and side elevations.
■ Replace curved arches for porch areas with clean lines and angles.
■ Incorporate a standing seam metal roof material on the lower level with
composition roof material in a similar color on the upper level.
■ Install permanent planter boxes along the side yards to accommodate side -yard
privacy plantings required by the R-1 Ordinance.
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The as -built elevations feature a more contemporary aesthetic than the previously
approved design, which incorporated traditional stucco, stone veneer, curved archways,
and composition roofing. The residence is not located in a specific plan area nor subject
to specific design standards. Additionally, the initial residential addition and balcony
project (R-2018-31 & RM-2018-26) was not subject to residential design review.
The applicant has also resolved all issues related to the balcony and privacy plantings.
The revised elevations show the second -story covered balcony to feature decorative
wood or metal railings, rather than solid stucco walls. Per Chapter 19.08 of the Cupertino
Municipal Code, the balcony shall have railings with visual transparency of at least 50%
to not be considered floor area. The revised balcony design complies with this regulation
(Figure 4).
Figure 4. Revised rear (west) elevation with balcony railing, DIR-2022-009
The applicant has proposed to install privacy plantings within the existing rear retaining
wall area as well as in permanent planter boxes in the side yards. The Privacy Plan (Sheet
A0.2) shows 11 15-gallon Pitosporum eugenoides and one 24"-box Magnolia grandiflora to be
planted along the right side, six 24"-box Magnolia grandiflora along the rear, four 15-gallon
Podocarpus gracilior and four 15-gallon Pitosporum eugenoides along the left side (Figure 5).
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PRIVACY PLAN
Figure 5. Privacy Plan with privacy plantings shown in green, DIR-2022-009
A certified landscape architect for the project has confirmed adequate size and spacing of
the planter boxes to ensure the required privacy screening species will survive and thrive
in accordance with the R-1 Ordinance. Installation details of the permanent planter box
shall be provided during Building permit submittal. The property owner shall record a
covenant with the County of Santa Clara requiring that all privacy plantings be
considered protected trees and maintained accordingly per the R-1 Ordinance (Chapter
19.28) and the Protected Trees Ordinance (Chapter 14.18) of the Cupertino Municipal
Code. On -site conditions shall be confirmed by Planning Staff with a site visit prior to
final occupancy.
The modification does not impact the approved floor area ratio, lot coverage, height, or
any other standards of the R-1 Ordinance (Chapter 19.28) of the Cupertino Municipal
Code. Furthermore, the project is not anticipated to create any additional adverse privacy
impacts for adjacent residences, as the project is required to adhere to the privacy
screening requirements of the R-1 Ordinance. The modification to the design is therefore
considered minor in nature.
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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:
1. APPROVED EXHIBITS
Approval is based on exhibits titled "Grand Success LLC, New Custom Homes,10047
Crescent Road, Cupertino, CA", prepared by Studio 61 Architects, Inc., consisting of
4 sheets labeled A0.1, A0.2, A3.1, and A3.2, 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, in accordance with R-2018-31, RM-2018-26, and DIR-
2020-012 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. 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.
5. DARK SKY COMPLIANCE
Prior to issuance of Building Permits, the applicant/property owner shall submit final
plans in compliance with the approved lighting plans to comply with development
standards of Cupertino Municipal Code Section 19.102.040 Outdoor Lighting
Requirements. In the event changes are proposed from the approved plans, said
changes must be reviewed and approved by the Director of Community Development
or their designee. The applicant shall provide all documentation required to
determine compliance with the Municipal Code.
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6. 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.
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,
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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.
This Director's approval is effective until June 3, 2024.
Also, please note that an appeal of this decision can be made within fourteen (14)
calendar days from the date of this letter (Friday, June 17, 2022 at 5:00 p.m.). If this
happens, you will be notified of a public hearing, which will be scheduled before the
Planning Commission. Please find a copy of the appeal form attached for your
convenience and to ensure your health and safety during the COVID pandemic (also
available online at: www.cul2ertino.org/121anningforms.) The completed appeal form and
filing fee must be received by the deadline to appeal and may be submitted in one of the
following ways:
1. Preferred: Email the completed form to cityclerk@cupertino.org and call (408)
777-3223 between 7:30AM - 5:30PM (M-Th) and 7:30AM - 4:30PM (F) to arrange
for payment by credit card.
2. Other options:
a. Mail the completed form and a check in the amount of $344 to Attn: City
Clerk, City of Cupertino, 10300 Torre Avenue, CA 95014.
b. Obtain an appointment to file the appeal by contacting the City Clerk by
email or phone (see contact information above).
Please contact the City Clerk's office for additional guidance and instructions on how to
file.
Enclosures:
Attachment A: Plan set