Reso 083CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 83
OF THE ADMINISTRATIVE HEARING MEETING OF THE CITY OF CUPERTINO
TO ALLOW THE REMOVAL AND REPLACEMENT OF 14 PROTECTED TREES
TO FACILITATE THE CONSTRUCTION OF A NEW COMMERCIAL BANK
BRANCH AND ASSOCIATED SIDEWALK IMPROVEMENTS
AT 21020 HOMESTEAD ROAD (APN 326-07-020)
SECTION I• PROTECT DESCRIPTION
Application No.: TR -2017-39
Applicant: Whitney Marr (C&L Investments, LLC)
Location: 21020 Homestead Road APN# 326-07-020
SECTION II: 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; and
WHEREAS, the project is categorically exempt from the California Environmental
Quality Act (CEQA); 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, the applicant has met the burden of proof required to support said
application; and
WHEREAS, the Administrative Hearing Officer finds:
1. That the tree or trees are irreversibly diseased, are in .danger of falling, can cause
potential damage to existing or proposed essential structures, or interferes with
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Page 2
private on-site utility services and cannot be controlled or remedied through
reasonable relocation or modification of the structure or utility services;
The on-site trees were evaluated for their health and their retention suitability and in most
cases the health of the tree determined their suitability for retention. No trees were
determined to be in good health and have good structural stability. Of the 14 proposed
removals, only three trees were evaluated with an above average health rating. These three
Mexican fan palms (Washingtonia robusta,) unfortunately were rated with a poor retention
suitability as the palms are located where the required stormwater control facilities are
proposed and the species is typically not designed to thrive in these areas. The other protected
trees evaluated were determined to be declining in health and/or have structural defects that
cannot be abated with treatment and would require significant management that may still
yield a limited lifespan.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter, the Application No. TR -2017-39, is hereby approved; and
That the subconclusions upon which the findings and conditions specified in this
Resolution are based and contained in the public meeting record concerning
Application TR -2017-39 as set forth in the Minutes of the Administrative Hearing
Meeting of October 26, 2017, and are incorporated by reference herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPARTMENT
1. APPROVED EXHIBITS
Approval is based on the arborist report entitled, "Arborist Report, Project
#5173.00," prepared by Jake Minnick of HMH (#WE -11830A), dated October 2, 2017
consisting of twelve (12) sheets inclusive of a landscape plan; except as may be
amended by conditions in this resolution.
2. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file no. ASA -2017-05 shall be applicable to
this approval.
3. TREE REPLACEMENT SPECIES
The applicant is required to plant, at a minimum, a medium-sized shade tree in the
public plaza to the satisfaction of the City in consultation with the City's consulting
arborist.
Resolution No. 83 TR -2017-39 October 26, 2017
Page 3
4. TREE REPLACEMENT SIZE
The applicant shall provide adequate tree replacements for trees proposed to be
removed in conformance to the replacement guidelines per Cupertino Municipal
Code Section 14.18.160. The size of the proposed replacement trees shall be modified
as follows to be consistent with the City's Protected Tree Ordinance unless deemed
infeasible by the City's Consulting Arborist:
a. Diameter of trunk size of removed tree up to 12 inches shall be replaced with
one 24 -inch box tree;
b. Over 12 inches and up to 36 inches shall be replaced by two 24 -inch box tree
or. one 36 -inch box tree and
c. Over 36'inches shall be replaced with one 36 -inch box tree.
If it is determined that it is physically not feasible to plant the required replacements
trees, the Applicant may pay in -lieu fees determined to be appropriate by the
Community Development Director.
5. ARBORIST REVIEW
Prior to building permit issuance, the number, location and species of trees shall be
reviewed and approved by the City in consultation with the City's Consulting
Arborist.
The replacement trees shall be planted prior to building permit final. The Applicant
shall provide the Department. of Community Development adequate
documentation, including, but not limited to, photographs, receipts or invoices, to
verify that replacements have been planted. The City's consulting arborist shall
inspect the trees after planting and a report ascertaining the good health of the trees
mentioned above shall be provided prior to issuance of final occupancy.
6. PROTECTED TREES
The applicant understands that the 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 trees. The applicant shall also disclose the location and
species of all replacements trees on site upon sale of the property.
7. 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
Resolution No. 83 TR -2017-39 October 26, 2017
Page 4
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.
8. 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.
PASSED AND ADOPTED this 26th day of October, 2017 at a noticed Public Meeting of
the Administrative Hearing Officer of the City of Cupertino, State of California, held by
the Director of Community Development, or his or her designee, pursuant to Cupertino
Municipal Code Section 19.12.120.
ATTEST:
Ellen Yau
Assistant Planner
APPROVED:
B min Fu
Asst. Director of Community Development