TR-2021-054 Action Letter (hazard)Comm . F lopmevt De(EUIMM41TY DEVELOPMENT DEPARTMENT
PI11499F
sion — upe?FANNING DIVISION
�CUPERTIN4 ROVE
CITY HALL
Case # 21-051 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
LTMPORTi Numbers TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333
CUPERTINO CUPERTINO.ORG
Approval Body: Director / Staff
Approval Date 01/20/22
Signature &~Weir
Case Manager
Joseph Gallegos
21031 Rainbow Drive
Cupertino, CA 95014
SUBJECT: TREE REMOVAL PERMIT ACTION LETTER — Application TR-2021-054
This letter confirms the decision of the Director of Community Development, given on
January 20, 2022 approving the retroactive Tree Removal Permit to allow the removal and
replacement of one (1) hazardous 20-inch DBH Interior Live Oak (Quercus wislizeni) that
had partially fallen at a single-family residential lot located at 21031 Rainbow Drive.
Staff has made the finding that the protected tree posed a hazard to the safety of property,
and that the tree had the potential to immediately damage existing or proposed essential
structures, and could not be controlled or remedied through reasonable relocation. The
finding is necessary to grant the tree removal permit in accordance with the definition
provided in Cupertino Municipal Code (CMC) Section 14.18.150(B)(1) of the City's
Protected Tree Ordinance.
The application is approved with the following conditions:
APPLICATION AND SUPPORTING DOCUMENTATION
This approval is based on the tree removal application submitted by the property
owner, Joseph Gallegos, dated December 21, 2021 documenting that a large tree limb
constituting a large portion of the tree had fallen leaving only a portion of the tree
remaining which was then deemed hazardous and removed. This application consists
of 7 pages including the application, signed Indemnification clause, a copy of the
Courtesy Notice sent by our Code Enforcement Officer requiring the submittal of an
application, photographic documentation of the fallen tree limb and the remaining
unstable tree, a Google Maps map identifying the hazardous tree in question, and the
invoice from the tree service that removed the tree.
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.
21031 Rainbow Drive Page 2 of 4
Community evelopment Department
P I a n nmade any property data may invalidate this approval and may
C U P S RT, N o regiAppR1di&Ual review.
Case # TR-2021-054
The required replacement planting is either two (2) 24-inch box trees or one (1) 36-inch
Approval Body: Dj Kttq&/ t;WB# planted on the subject property within 30 days of the approval of this
Approva I DatePOLAR—on. The applicant shall provide the Department of Community Development
Signature Cath4flgLT rAocumentation, including but not limited to, photographs, receipts, or
invaiee,Vabogeverify that the replacement tree has been planted. Please email the
photographs of the planted replacement tree to catherinetOcupertino.org and I will
then reach out to our Code Compliance Division and they will then close the
pending code compliance case for this tree removal at this property.
4. 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 replacement trees on site upon sale of the property.
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
¢yt.l It
Case #
21031 Rainbow Drive
Community evelopment Department
Page 3 of 4
Planning D i v i s i o4oetCm,p#Wnand protective measures implemented under the direction of
APPRCP 55nualified ornithologist until the nests no longer contain eggs or young
TR-2021 '6-
ApprtatiordiunFro*ctive measures shall include establishment of clearly delineated
e lusion zones (i.e. demarcated by identifiable fencing, such as orange
Approval Body: Director / Starr
struction fencing or equivalent) around each nest location as
Approval Date 01/20/22 deiern inod by tho q alified ornithologist, taking into account the species
Signature Catherine TaronaDf birds nesting, their tolerance for disturbance and proximity to existing
Case Man4vvelopment. 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. 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
21031 Rainbow Drive Page 4 of 4
Community evelopment Department
P l a n n*r'migdDi*i 6nie- e,rtirtead costs and other City staff overhead costs and any costs
c U P E RT, N o direAtftp F(6,VPO) to the litigation reasonably incurred by City. The applicant shall
Case # liwyyeo4o indemnify, defend, and hold harmless the indemnified parties from
A,Tgk digR}P� b@;(-�y amages, a orneys' fees, or costs awards, including attorneys' fees
awarded under Code of Civil Procedure section 1021.5, assessed or awarded against
Approval Body: Dtj'V:t1RU41 fled parties. The Applicant shall cooperate with the City to enter a
Approval Date PIAM4sement Agreement to govern any such reimbursement.
Signature Catherine Tarone
ec �pt 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.
7. 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.
Please note that an appeal of this decision may be made within 14 calendar days
from the date of this letter. CMC 14.18.150(B)(1) Exemptions, permits the removal
of hazardous trees before the approval is granted provided that a retroactive tree
removal permit is submitted within 5 days. If an appeal is filed, you will be notified
of a public hearing, which will be scheduled before the Planning Commission.
Sincerely,
Catherine Tarone
Permit Technician
Planning Division
(408) 777-3297
catherinet@cupertino.org