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DIR-2024-010 Action LetterCITY OF CUPERTINO 10300 Torre Avenue, Cupertino, California 95014 (408) 777-3308 To: Mayor and City Council Members Chairperson and Planning Commissioners From: Luke Connolly, Assistant Director of Community Development uj Prepared by: Emi Sugiyama, Associate Planner Date: November 12, 2024 Subject: Director's Minor Modification, DIR-2024-010, to consider a modification to U-1985-29 to allow for a new pergola at 10505 Miller Avenue, APN 369 16 026. 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 10505 Miller Avenue, part of the South Blaney neighborhood (Figure 1). The property is zoned BQ, or Quasi -Public Building. Development on the property is subject to the applicable standards from the City's Municipal Code Chapter 19.76 for Public Building (BA), Quasi -Public Building (BQ) And Transportation (T) zones and the conditions of U- 1985-29. Minor alterations to the site were approved through DIR-2008-07 and DIR-2019-008, resulting in an expansion of the parking area, updates to the building's fagade, an added courtyard, and landscaping modifications. The applicant proposes to install a pergola for which a Director's Minor 1 Modification is required, in accordance with the requirements for modifications to a plan which has received site and design approval as outlined in City Code Chapter 19.164. DISCUSSION The property owner, the First Baptist Church of Cupertino, proposes to _I construct a 1,560-square-foot, detached 6(� pergola structure in an existing landscaped area. The proposed pergola will be located 3sr near the center of the property, near the 74' existing buildings and at least 100 feet from the nearest residential property line (Figure 2). The proposed pergola will match the color of the overhangs on the .� _ primary building and will be generally _- Figure 2. Site Plan screened from off -site views by existing ---- trees and landscaping. No alterations to existing buildings, signs, windows, trees, or parking lot design are proposed. ;Er � Figure 3.313 Rendering of Pergola Compliance with City Standards The project is compliant with the applicable lighting requirements outlined in Municipal Code Sections 19.102.040. The proposed modification is generally consistent with the existing design of the site, utilizing similar colors to reduce visual impacts, and will not result in an increase in floor area. The modification to the design is, therefore, considered minor in nature. 2 ACTION The Director of Community Development deems the project categorically exempt from environmental review under CEQA Guidelines, Article 19, Section 15303: New Construction of Small Structures, and further deems the modification to be minor and approves the project subject to the following conditions of approval: APPROVED EXHIBITS Approval is based on the plan set titled "Outdoor Freestanding Pergola Project," consisting of sheets "1 through 6, LI, Al, A100, AI01, A200, A200.1, A201, A202, A300, A400, and P-1," except as may be amended by the conditions contained in this resolution. Approval is limited to the proposed pergola structure. No other improvements, light fixtures, structures, or equipment are approved with this permit. 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. MODIFICATIONS TO APPROVED PLANS Prior to submission of Building Permit applications, Plan Sheet Ll shall be updated to indicate the locations of existing trees and other landscaping on site. Should the existing landscaping and trees differ from those approved through DIR-2019-008 and required under DIR-2008-07, prior to issuance of building permits for the installation of the pergola, appropriate permit approvals shall be obtained (e.g. Tree Removal Permit or Director's Minor Modification) to ensure that modifications are properly documented in compliance with the City's Municipal Code requirements. No tree removals have been approved with this plan. 4. PREVIOUS CONDITIONS OF APPROVAL All prior conditions of approval through past permits including, but not limited to, U-1985-29, DIR-2008-07, and DIR-2019-008 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. 5. FENCES No fencing has been approved as part of this permit. If installed, fencing must comply with the City's Fence Ordinance and be installed with appropriate design review and permit approvals. 6. BUILDING PERMITS The applicant shall consult with the City Building Division to obtain the necessary building permits prior to commencement of work. 7. ANNOTATION OF THE CONDITIONS OF APPROVAL Prior to submission of Building Permit plans, the conditions of approval set forth shall be incorporated into and annotated on the building plan sheets. 8. 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. 9. LANDSCAPE PROTECT SUBMITTAL Prior to issuance of building permits, the applicant shall submit a full Landscape Documentation Package, per sections 14.15.050 A, B, C, and D of the Landscape Ordinance, for projects with landscape area 500 square feet or more or elect to submit a Prescriptive Compliance Application per sections 14.15.040 A, B, and C for projects with landscape area between 500 square feet and Z500 square feet. The Landscape Documentation Package or Prescriptive Compliance Application shall be reviewed and approved to the satisfaction of the Director of Community Development prior to issuance of building permits, and additional requirements per sections 14.15.040 D, E, F, and G or 14.15.050 E, F, G, H, and I will be required to be reviewed and approved prior to final inspections. 10. 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. 11. 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. Additionally, the applicant shall ensure that light orientation, color temperature, and intensity are consistent with the approved plans. 12. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS a. All grading activities shall be limited to the dry season (April 15 to October 1), unless permitted otherwise by the Director of Public works. b. Construction hours and noise limits shall be compliant with all requirements of Chapter 10.48 of the Cupertino Municipal Code. c. Grading, street construction, underground utility and demolition hours for work done more than 750 feet away from residential areas shall be limited to Monday through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to 6 p.m. Grading, street construction, demolition or underground utility work within 750 feet of residential areas shall not occur on Saturdays, Sundays, holidays, and during the nighttime period as defined in Section 10.48.053(b) of the Municipal Code. d. Construction activities shall be limited to Monday through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to 6 p.m. Construction activities are not allowed on holidays as defined in Chapter 10.48 of the Municipal Code. Night time construction is allowed if compliant with nighttime standards of Section 10.48 of the Cupertino Municipal Code. e. Rules and regulations pertaining to all construction activities and limitations identified in this permit, along with the name and telephone number of an applicant appointed disturbance coordinator, shall be posted in a prominent location at the entrance to the job site. f. The applicant shall be responsible for educating all contractors and subcontractors of said construction restrictions. The applicant shall comply with the above grading and construction hours and noise limit requirements unless otherwise indicated. 13. FUGITIVE DUST CONTROL Prior to issuance of the any demolition, grading, or building permit, include on all permit plans, the full text of each of the Bay Area Air Quality Management District's Basic Control Measures from the latest version of BAAOMD's CEOA Air Quality Guidelines as subsequently revised, supplemented, or replaced, to control fugitive 5 dust (i.e., particulate matter PM2.5 and PM10) during demolition, ground disturbing activities and/or construction. 14. NOISE AND VIBRATION NOTICE At least 10 days prior to the start of any demolition, ground disturbing, or construction activities, the project applicant/contractor shall send notices of the planned activity by first class mail as follows: a. For projects on sites that are more than 0.5 acres or four or more residential units the notices shall be sent to oft -site businesses and residents within 500 feet of the project site; b. 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 c. 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 City will provide mailing addresses for the Applicant's use. The project applicant shall provide the City with evidence of mailing of the notice, upon request. If pile driving, see additional noticing requirements below. 15. NOISE AND VIBRATION SIGNAGE At least 10 days prior to the start of any demolition, ground disturbing, or construction activities, the project applicant/contractor shall ensure that a sign measuring at least two feet by three feet shall be posted on construction fencing at the entrance(s) to the job site, clearly visible to the public, and include the following: a. Permitted construction days and hours; b. A description of proposed construction activities; c. 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; and d. Contact information for City's and contractor's authorized representatives that are assigned to respond in the event of a complaint related to fugitive dust, pursuant to the requirements for compliance with BAAOMD's CEOA Air Oualit3Guidelines. If the authorized contractor's representative receives a: complaint, they shall investigate, take appropriate corrective action, and report the complaint and the action taken to the City within three business days of receiving the complaint. 0 16. NOISE DURING CONSTRUCTION Prior to issuance of any demolition, grading or building permit, include on plans a note that, during project construction, the project applicant shall incorporate 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 homs, 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. 17. VOLATILE ORGANIC COMPOUND EMISSIONS FROM PAINT Prior to issuance of the first building permit, the Applicant shall include a note on all plans where paint specifications or other design specifications are listed, that the project design will incorporate only low-VOC paint (i.e., 50 grams per liter [g/L] or less) for interior and exterior wall architectural coatings. 18. AVOID NESTING BIRDS DURING CONSTRUCTION Prior to issuance of the any demolition, grading and building permit, indicate the following on all construction plans: a. Demolition, construction, ground -disturbing, and tree removal/pruning activities shall be scheduled to be completed prior to nesting season (February 1 through August 31), if feasible. 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. iii. 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 1 protective measures to be implemented under their direction until the nests no longer contain eggs or young birds. iv. 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 ornthologist 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. v. 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. 19. STORMWATER RUNOFF CONTAMINATION Prior to issuance of any grading or building permits, 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 Engineer or his or her designee. All identified stormwater runoff control measures shall be included in the applicable construction documents. 20. 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 Civs 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. 21. 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. Pursuant to Government Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to Government Code Section 66020(a), has begun. If you 10 fail to file a protest within this 90-day period complying with all of the requirements of Section 66020, you will be legally barred from later challenging such exactions. Please note that if this permit is not vested within two years, it shall expire on November 12, 2026. Also, please note that an appeal of this decision can be made within fourteen (14) calendar days from the date of this decision (Tuesday, November 26, 2024 at 5:00 p.m.). If this happens, you will be notified of a public hearing, which will be scheduled before the Planning Commission. A copy of the appeal form is available online at: www.cupertino.org(planningforms. 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: Bring a signed copy of the appeal form to the City Clerk's office between 7:30AM - S:OOPM (M-Th) and 7:30AM - 4:30PM (F). 2. Other options: a. Mail the completed form and a check in the amount of $505 to Attn: City Clerk, City of Cupertino,10300 Torre Avenue, CA 95014. b. Email the completed form to atvclerk@cuperdno.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. Please contact the City Clerk's office for additional guidance and instructions on how to file. 11