Reso 131CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION N0. 131
OF THE ADMINISTRATIVE HEARING OFFICER
OF THE CITY OF CUPERTINO APPROVING A DEVELOPMENT
PERMIT TO ALLOW A 561 SQUARE FEET ADDITION TO AN
EXISTING BUILDING FOR COMMERCIAL USES I,OCATED
AT 19900 STEVENS CREEK BLVD.
SECTION I: PROJECT DESCRIPTION
Application No.:
Applicant:
Location:
DP-2022-003
Kevin Tallman
19900 Stevens Creek Blvd. (APN 369-05-038)
SECTION II: FINDINGS FOR ARCHITECTURAL AND SITE APPROV AL PERMIT:
WHEREAS, the City of Cupertino received an application for a Development Permit to
consider allowing a 561 square feet addition to an existing retail building for commercial
uses, as described in Section I. of this Resolution; and
WHEREAS, the necessary public notices have been given as required by the Procedural
Ordinance of the City of Cupertino, and the Administrative Hearing Officer has held at
least one public meeting in regard to the application; and
WHEREAS, pursuant to the provisions of the California Environmental Quality Act of
1970 (Public Resources Code section 21000 et seq.) (/ICEQA"), together with the State
CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.)
(hereinafter, "CEQA Guidelines"), the City staff has independently studied the proposed
Project and has determined that the Project is exempt from environmental review
pursuant to the categorical exemption in CEQA Guidelines section 15301 and 15332 for
the reasons set forth in the staff report dated September 22, 2022 and incorporated herein;
and
WHEREAS, the applicant has met the burden of proof required to support said
application; and
Resolution No. 131 DP-2022-003 September 22, 2022
Page 2
WHEREAS, the Administrative Hearing Officer finds as follows with regard to this
application:
1. The proposed development, at the proposed location, will not be detrimental or
injurious to property or improvements in the vicinity, and will not be detrimental to
the public health, safety, general welfare, or convenience;
The current building is a one-story commercia/ building that is located within the Heart of
the City SpecialArea that promotes retail and active uses. The zoning district allows the 45
feettallbui7dings,whiletheexistingbuildingmeasuresapproximately20feet. Theproposal
will add a tower e(ement that will increase the height of the building to approximately 33
feet. The project will add 561 square feet, filling in the northeast corner of the existing
building. There are no floor area limitations on development in the Heart of the City Special
Area. There will be minimal change to the massing and ?ZO change to the setbacks. Therefore,
the proposal will not be detrimenta7 or injurious to property or improvements in the
vicinity.
2. The proposed development will be located and conducted in a manner in accord
with the Cupertino Comprehensive General Plan and the purpose of this title and
complies with the California Environmental Quality Act (CEQA).
The proposed development is in conformance with the Cupertino Genera7 Plan and the
proposal has met the development sta;ndards specified in the Heart of the City Specific Plain
and the City Municipa7 Code such as heights, setbacks and landscaping requirements.
Furthermore, the use of the building is proposed to be consistent with the goals of the
General Pla;ri to maintain a commercia7 core along Stevens Creek Blvd. The project is
categorically exempt from CEQA under Section 15301 since it is an addition to an existing
structure of less than 10,000 sq. ft. Furthermore, since the building is already a developed
site and merely proposes to fill in a corner of the existing building, the project is also
categorically exempt from CEQA u;nder Section 15332 - In-Fill Development Projects.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of the maps, facts, exhibits, testimony, staff's report and
presentation, and other evidence submitted in this matter, subject to the conditions which
are enumerated in this Resolution beginning on PAGE 2 thereof,:
The application for a Development Permit, Application no. DP-2022-003 is hereby
approved and that the subconclusions upon which the findings and conditions specified
in this resolution are based and contained in the Public Hearing record concerning
Application no. DP-2022-003 as set forth in the Minutes of the Administrative Hearing
Meeting of September 22, 2022 and are incorporated by reference as though fully set forth
herein.
Resolution No. 131 DP-2022-003 September 22, 2022
Page 3
SECTION III: CONDITIONS
DEVELOPMENT DEFT.
ADMINISTERED BY THE COMMUNITY
1. APPROVED EXHIBITS
Approval is based on the plan set drawn by Stacey Hall titled IlShane Co. Exterior
Improvements" consisting of five (5) sheets labeled co.o, GO.I, and A-I - A-3, except
as may be amended by conditions in this resolution.
2. ACCURACY OF 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. ANNOT ATION OF THE CONDITIONS OF APPROV AL
The conditions of approval set forth shall be incorporated into and annotated on the
first page of the building plans.
4. CONCURRENT APPROV AL CONDITIONS
The conditions of approval contained in file nos. ASA-2019-006 and TR-2019-032 shall
be applicable to this approval.
5. DEVELOPMENT ALLOCATION
The applicant shall receive an allocation of 561 square feet of the retail commercial
allocations from the Heart of the City Special Area.
6. BELOW MARKET RATE PROGRAM
The applicant shall participate in the City's Below Market Rate (BMR) Housing
Program by paying the Below Market Rate linkage fee far Commercial use concurrent
with issuance of building permits at the rate in effect at that time. The current fee is
$13.52 per net new square feet (-561 sq.ft.) for commercial use.
7. CONSULT ATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult 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.
Resolution No. 131 DP-2022-003 September 22, 2022
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8. BUILDING AND FIRE CODE
The applicant shall apply for and obtain building permits to allow the construction of
the approved project. The applicant shall provide information and plans to allow the
Building Official and the Fire Marshall or their designee that the proposed plans
comply- with Btiilding arid Fire Codes irr effect at the time of application for a building
permit.
9. CONSTRUCTION MANAGEMENT PLAN
A construction management plan shall be prepared by the applicant and approved by
staff prior to issuance of building permits. Staging of construction equipment shall
not occur within 40 feet of any residential property.
10. SCREENING
All mechanical and other equipment on the building or on the site shall be screened
so they are not visible from public street areas or adjoining developments. Screening
materials/colors shall match building features and materials. The height of the
screening shall be taller than the height of the mechanical equipment that it is
designed to screen. The location of equipment and necessary screening shall be
reviewed and approved by the Director of Community Development prior to issuance
of building permits.
11. 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 MunicipaI 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 Sahirday and Sunday, 9 a.m. to 6 p.m.
Grading, street constmction, 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 ail construction activities and Iimitations
identified in this permit, along with the name and telephone number of an
Resolution No. 131 DP-2022-003 September 22, 2022
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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.
12. BAAOMD BASIC CONTROL MEASURES (DUST CONTROL)
Project shall comply with the Bay Area Quality Management District's Basic
Construction Mitigation Measures as follows:
a. All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas,
and unpaved access roads) shall be watered two times per day.
b. All haul trucks transporting soil, sand, or other loose material off-site shall be
covered.
c. All visible mud or dirt tracked-out onto adjacent public roads shall be removed
using wet power vacuum street sweepers at least once per day. The use of dry
power sweeping is prohibited.
d. All vehicle speeds on unpaved roads shall be limited to 15 mph.
e. All roadways, driveways, and sidewalks to be paved shall be completed as soon
as possible. Building pads shall be laid as soon as possible after grading unless
seeding or soil binders are used.
f. Idling times shall be minimized either by shutting equipment off when not in use
or reducing the maximum idling time to 5 minutes (as required by the California
airborne toxics control measure Title 13, Section 2485 of California Code of
Regulations [CCR]). Clear signage shall be provided for construction workers at
all access points.
g. All construction equipment shall be maintained and properly tuned in accordance
with manufacturer's specifications. All equipment shall be checked by a certified
mechanic and determined to be running in proper condition prior to operation.
h. A publicly visible sign shall be posted with the telephone number and person to
contact at the City of Cupertino regarding dust complaints. This person shall
respond and take corrective action within 48 hours. The BAAQMD phone number
shall also be visible to ensure compliance with applicable regulations.
Applicant shall indicate compliance with BAAQMD's basic control measures on
all demolition, construction and grading permits and construction management
plan(s).
13. 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
Resolution No. 131 DP-2022-003 September 22, 2022
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planned activity by first class mail to off-site businesses and residents within 500 feet
of the project site. The City will provide a template notice and mailing addresses for
the Applicant's use. The notice must be approved by City staff prior to sending. The
project applicant shall provide the City with evidence of mailing of the notice, upon
request.
Please note that, if pile driving, the requirements for noticing and monitoring outlined
in City Code Section 17.04.050 G (3) shall apply.
14. 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 four feet by six feet shall be posted on construction fencing at the
entrance(s) to the job site, clearly visible to the publig 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 CE0A Air
0uality Guidelines.
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.
15. 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 Departmentfor review and approval
prior to issuance of the first permit. The Construction Noise Plan shall
demonstrate compliance with daytime and nighttime decibeI 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 constmction activities from sensitive receptor(s), site terrain, and other
Resolution No. 131 DP-2022-003 September 22, 2022
Page 7
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 horns, 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.
16. 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 BAA0MD's CE0A Air Quality
Guidelines, as subsequently revised, supplemented, or replaced, to control fugitive
dust (i.e., particulate matter PM2.5 and PMIO) during demolition, ground disturbing
activities and/or construction.
17. 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 compIy with development
standards of Cupertino Municipal Code Section 19.102.040 0utdoor Lighting
Requirements. In the event changes are proposed from the approved plans, said
changes mustbe 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.
Resolution No. 131 DP-2022-003 September 22, 2022
Page 8
18. INDEMNIFICATION AND LIMIT ATION 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
Ilindernrufied parties") from and agairtst an7 llabllit37, Clainl, actiori, CauSe of action,
suit, damages, judgment, lien, levy, or proceeding (collectively referred to as
Ilproceeding") brought by a third party against one or more of the indemnified parties
or one or more of the indemnified parties and the appIicant 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 actuaI
attorneys' fees and costs incurred in defense of the litigation. Such attorneys' fees and
costs shaII include amounts paid to the City's outside counseI 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 AppIicant shall agree to (without Iimitation) 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.
19. 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.
Resolution No. 131 DP-2022-003 September 22, 2022
Page 9
SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS DEPT.
20. C3 IMPERVIOUS DATA FORM
Complete a C.3. Impervious Surface Data Form to reflect the total new and/or
replace impervious area.
21. GRADING & DRAINAGE
Show proposed drainage patterns using arrows, flow lines and/or slope percentage.
No concentrated flow is permitted across the right-of-way and no drainage is
permitted to flow to neighboring properties. Direct on-
site drainage through landscaped swales and allow drainage towards the public
street.
SECTION V: CONDITIONS ADMINISTERED BY THE SANTA CLARA COUNTY FIRE
DEPT.
22. RE0UIRED FIRE FLOW
The fire flow for this project is 4750 GPM at 20 psi residual pressure. Since
an automatic fire sprinkler system is installed, the fire flow will be reduced by 75%,
establishing a required adjusted fire flow of 1,188 GPM at 20 psi residual pressure.
Note: The minimum required number and spacing of the hydrants shall be in
accordance with CFC Table C102.1. Letter received. Hydrant is capable of meeting
required fire flow.
23. FIRE SPRINKLER MODIFICATION RE0UIRED
Provide submittal to SCCFD for installation of each of the systems listed below, per
CFC Chapter I and 9. Submit shop drawings (3 sets) and a permit application to the
SCCFD for approval before altering the system.
24. FIRE ALARM MODIFICATION RE0UIRED
Any modifications to the existing fire alarm system requires drawings and a permit
application be submitted to SCCFD for approval before any install or alteration
occurs.
PASSED AND ADOPTED this 22nd day of September 2022 at a noticed Public Meeting
of the Administrative Hearing Officer of the City of Cupertino, State of California, held
by the Director of Cornrnunity Development, or his or her designee, pursuant to
Cupertino Municipal Code Section 19.12.120.
ATTEST:APPROVED:
Resolution No. 131 DP-2022-003 September 22, 2022