Reso 077CITY OF CUPERTINO
10300 'Torre Avenue
Cupertino, California 95014
RESOLUTION No. 77
OF THE ADMINISTRATIVE HEARING MEETING OF THE CITY OF C PERTINO
TO ALLOW THE REMOVAL AND ][ EPLACMENT OF TWENTY-NINE
PRO'T]ECT]ED TREES AT THE MCCL EL LAN SQUARE SHOPPING CENTER
LOCATED AT 10335-10497 So DE ANZA BLVD (APN 359-17-019 and 359-17-023)
SECTION le PROJECT DESCRIPTION
Application No.: TR -2015-27
Applicant: Aaron Zuzac]k (BBC Hayward LP)
Location: 10385-10497 Se De Anza Blvd (APN 359-17-019 and 359-17-023)
SECTION ife ]FINDINGS
WHEREAS, the Administrative Hearing Officer of the City of Cupertino received an application
for a Tree Removal permit as described in Section I. of this ][resolution;
WHEREAS, the project is categorically exempt from the California ]Environmental Quality Act
(CEQA);
WHEREAS, the necessary public notices have been given as required by the ]procedural
Ordinance of the City of Cupertino, and the Administrative Hearing Officer held a public
meeting on ]February 9, 2017 in regard to the application; and
WHEREAS, the Administrative ][-fearing Officer finds:
1. That the trees are irreversibly diseased, are in danger of falling, can cause potential damage
to existing or proposed essential structures, or interferes with private on-site utility services
and cannot be controlled or remedied through reasonable relocation or modification of the
structure or utility services;
The City's consulting arborist has, determined that some of the trees proposed for removal are in
conflict with the proposed site improvements, destructive to adjacent paving and sidewalks, high-
water consumers, displaying signs of poor conditions such as reduced canopies and poor form, and
therefore, are not suitable for preservation or relocation. The proposed and/or existing structures or
utility services that are in conflict with some of the trees proposed to be removed cannot be reasonably
relocated or modified.
2e That the location of the trees restricts the economic enjoyment of the property by severely
limiting the use of property in a manner not typically experienced by owners of similarly
zoned and situated property, and the applicant has demonstrated to the satisfaction of the
approval authority that there are no reasonable alternatives to preserve the tree(s).
Resolution No. 77 TR -2015-27 February 9, 2017
Page 2
The City's consulting arborist has determined that some of the trees proposed for removal particularly
the trees along the street frontages are in conflict with the proposed site improvements, and are not
suitable for preservation or relocation. In addition, the removed trees will be replaced with more
appropriate trees that are low maintenance, provide adequate road clearance, and complement the
existing street trees along S. De Anza Blvd.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of the maps, facts, exhibits, testimony 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 Tree Removal Permit, Application no. TR -
2015 -27 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. TR -2015-27 as set
forth in the Minutes of Administrative Hearing Meeting of February 9, 2017, and are
incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT
DEPARTMENT
1. APPROVED EXHIBITS
Approval is based on the removal and replacement plan set dated January 20, 2017,
consisting of two (2) sheets entitled, "McClellan Square, Cupertino" numbered as A5 and
"McClellan Square — Conceptual Landscape Plan" drawn by James Ferguson Clabaugh,
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. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. ASA -2015-14, ASA -2015-28, and SP -2015-06
shall be applicable to this approval.
4. TREE REPLACEMENTS
The applicant is required to plant thirty (18) 24" box and thirteen (13) 36" box replacement
trees in accordance with the replacement plan prior to final occupancy.
5. TREE REMOVAL PERMIT FOR MAIN DRIVEWAY TREES
The applicant shall apply for and obtain a tree removal permit for the twelve (12) trees along
the main driveway. These trees shall be removed and replaced with similar replacement
species selected as part of TR -2015-27, prior to final inspections.
Resolution No. 77 TR -2015-27 February 9, 2017
]Page 3
6. FINAL PLANTING PLAN
The final planting plan shall be reviewed and approved by the Director of Community
Development prior to issuance of building permits. The trees shall be planted prior to final
inspections/occupancy and an ISA Certified Arborist shall confirm in a report that the
replacement trees were planted properly and according to plan prior to final occupancy.
7. TREE ]PROTECTION
As part of the demolition or building permit drawings, a tree protection plan shall be
prepared by a certified arborist for the trees to be retained. In addition, the following
measures shall be added to the protection plan:
® For trees to be retained, chain link fencing and other root protection shall be installed
around the dripline of the tree prior to any project site work.
® Signs indicating the protected status of the tree shall be installed on the protective
fencing.
® Free protection conditions shall be posted on the tree protection fencing.
® No parking or vehicle traffic shall be allowed under root zones, unless using buffers
approved by the project Arborist.
® No trenching within the critical root Zone area is allowed. If trenching is needed in
the vicinity of trees to be retained, the City's consulting arborist shall be consulted
before any trenching or root cutting beneath the dripline of the tree.
® Mood chip mulch shall be evenly spread inside the tree projection fence to a four -
inch depth.
® Retained trees shall continue to be irrigated or hand -watered to maintain them in
good health.
The tree protection measures shall be inspected and approved by the certified arborist prior
to issuance of building permits.
The City's consulting arborist shall inspect the trees to be retained and shall provide reviews
prior to issuance of demolition, grading or building permits. Additionally, a report
ascertaining the good health of the trees mentioned above shall be provided prior to
issuance of final occupancy. Any trees identified to be in poor health or incongruent with
the site -wide tree replacement plan in the report shall be required to be removed and
replaced.
8. MAINTENANCE
The property owner shall be responsible for ensuring that the existing trees and newly
planted trees are properly maintained including but not limited to ensuring that there is
adequate soil drainage, that the soil is well-aerated, and irrigation systems are thoroughly
tested to provide sufficient water to landscaped areas while reducing water waste.
Resolution No. 77 TR -2015-27 February 9, 2017
Page 4
9. DISCLOSURE OF PROTECTED TREES AND COVENANT
The property owner/applicant understands that the replacement trees may not be removed
without a Tree Removal Permit and that they shall be responsible for ensuring the ongoing
proper maintenance and care of the trees. The location and species of all replacements trees
on site shall be disclosed upon sale of the property. In addition, a covenant shall be recorded
on the property that identifies all the protected trees, prior to final occupancy.
10. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible for consulting 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.
11. INDEMNIFICATION
Except as otherwise prohibited by law, the applicant shall indemnify and hold harmless the
City, its City Council, and its officers, employees and agents (collectively, the "indemnified
parties") from and against any claim, action, or 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 to attack, set aside, or void this Resolution or any permit or
approval authorized hereby for the project, including (without limitation) reimbursing the
City its actual attorneys' fees and costs incurred in defense of the litigation. The applicant
shall pay such attorneys' fees and costs within 30 days following receipt of invoices from
City. Such attorneys' fees and costs shall include amounts paid to counsel not otherwise
employed as City staff 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.
12. 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 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.
RIes®luti®n No. 77 TR -2015-27 ]February 9, 2017
Page 5
PASSED AND ADOPTED this 9th day ®f ]February, 2017 at a noticed public Meeting ®f the
Administrative Hearing Officer ®f the City ®f Cupertino, State ®f California, held by the
Director ®f Community Development, or his ®r her designee, pursuant t® Cupertino Municipal
Code Sects®n 19.12.120.
ATTEST:
]Ellen Yau
Assistant planner
APPROVED:
Benj ' m Fu
Assistant Director ®f Community Development