Reso 142CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO.142
OF THE ADMINISTRATIVE HEARING OFFICER
OF THE CITY OF CUPERTINO APPROVING A FENCE EXCEPTION
FOR A SIDE YARD FENCE ON A CORNER LOT OF AN EXISTING
SINGLE-FAMILY RESIDENCE LOCATED
AT 7485 KINGSBURY PLACE
SECTION I: PROTECT DESCRIPTION
Application No.: EXC-2022-007
Applicant: Ezzat Hashemi
Location: 7485 Kingsbury Place (APN 362-29-022)
SECTION II: FINDINGS FOR A FENCE EXCEPTION:
WHEREAS, the City of Cupertino received an application for a Fence Exception for a side
yard fence on a corner lot of an existing single-family residence, 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.) ("CEQA"), 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 15302 for the reasons
set forth in the staff report dated June 8, 2023 and incorporated herein; and
WHEREAS, the applicant has met the burden of proof required to support said
application; and
WHEREAS, the Administrative Hearing Officer finds as follows with regard to this
application:
Resolution No. EXC-2022-007 June 8, 2023
Page 2
1. The literal enforcement of the provisions of this chapter will result in restrictions
inconsistent with the spirit and intent of this chapter;
The purpose of CMC 19.48 is to regulate the location and height offences and vegetation in
yards of all zoning districts in order to protect the safety, privacy, and property values of
residents and owners of properties within any zoning district of the City. The proposed fence
is consistent with the existing fence and does not propose to be above six feet and still
maintains the privacy of both properties adjacent to the structure.
2. The granting of the exception will not result in a condition which is materially
detrimental to the public health, safety or welfare;
The proposed fence is consistent with Public Works Deatil 7-6, Sidewalk Clearance at
Driveways as no portion of the fence is obstructing visibility from the driveway of the
adjacent property, thus protecting pedestrians as well as vehicular traffic.
3. The exception to be granted is one that will require the least modification of the
prescribed regulation and the minimum variance that will accomplish the purpose;
The street side fence setback proposed adjacent to the key lot to the north is minimally
different from those mandated by CMC 19.48.030(C)(2)(b), while also consistent with Public
Works Deatil 7-6, Sidewalk Clearance at Driveways.
4. The proposed exception will not result in a hazardous condition for pedestrian and
vehicular traffic;
The proposed fence is consistent with Public Works Deatil 7-6, Sidewalk Clearance at
Driveways as no portion of the fence is obstructing visibility from the driveway of the
adjacent property, thus protecting pedestrians as well as vehicular traffic.
5. The proposed development is otherwise consistent with the City's General Plan and
with the purpose of this chapter as described in Section 19.48.010;
The purpose of CMC 19.48 is to regulate the location and height offences and vegetation in
yards of all zoning districts in order to protect the safety, privacy, and property values of
residents and owners of properties within any zoning district of the City. The proposed fence
is consistent with the existing fence and does not propose to be above six feet and still
maintains the privacy of both properties adjacent to the structure.
6. The proposed development meets the requirements of the Santa Clara Fire
Department and Sheriff's Department, and if security gates are proposed, that
attempts are made to standardize access;
The proposed fence does not conflict with any SCCFD and Sheriff Department requirements.
Further, no security fencing are proposed.
Resolution No. EXC-2022-007 June 8, 2023
Page 3
7. The fence height for the proposed residential fence is needed to ensure adequate
screening and/or privacy.
The proposed fence is not proposed to be above six feet.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of the maps, facts, exhibits, testimony, staffs 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 Fence Exception, Application no. EXC-2022-007 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. EXC-2022-007 as set forth in the Minutes of the Administrative Hearing Meeting of
June 8, 2023 and are incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set drawn by Design Everest titled "Sideyard Retaining
Wall and Fence" consisting of two (2) sheets labeled C1 and C2, except as may be
amended by conditions in this resolution.
2. ACCURACY OF 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. 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
Resolution No. EXC-2022-007 June 8, 2023
Page 4
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,
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.
4. 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.
PASSED AND ADOPTED this 81h day of June 2023 at a noticed Public Meeting of the
Administrative Hearing Officer of the City of Cupertino, State of California, held by the
Director of Com�iynity Development, or his or her designee, pursuant to Cupertino
Municipal Cqd re/ction 19.12.120.
ATTEST: APPROVED:
V
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Gian Paolo Martire Luke Connolly
Senior Planner Administrative Hearing fficer