Reso 091CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 91
OF THE ADMINISTRATIVE HEARING OFFICER OF THE CITY OF CUPERTINO
TO ALLOW THE REMOVAL AND REPLACEMENT OF A PROTECTED 37" COAST
LIVE OAK TREE TO FACILITATE THE CONSTRUCTION OF A NEW SINGLE
FAMILY HOME AT 22561 ALCALDE ROAD (APN 342-29-063)
SECTION I: PROTECT DESCRIPTION
Application No.: TR -2018-05
Applicant: Cindy Hsu
Location: 22561 Alcalde Road (APN 342-29-063)
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, prior to the Administrative Hearing, the Environmental Review
Committee heard the item on March 1, 2018 during which it reviewed the Draft
Mitigated Negative Declaration, received public comments, and recommended
adoption of a Mitigated Negative Declaration on a 5-0 vote; and
WHEREAS, on April 12, 2018 the Administrative Hearing _Officer adopted the Initial
Study/Draft MND as the Final Initial Study/Mitigated Negative Declaration for the
project after adopting all the identified mitigation measures as conditions of approval
for the project; and
WHEREAS, the necessary notices have been given in accordance with the Procedural
Ordinance of the City of Cupertino, and the Administrative Hearing Officer has held
one or more Public Hearings on this matter; and
WHEREAS, the applicant has met the burden of proof required to support said
application; and
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WHEREAS, the Administrative Hearing Officer finds:
1. 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);
The 37" Coast Live Oak at its location on the newly formed lot (Lot B) is situated in a
location on the parcel that would severely restrict a reasonably sized home, as compared to
the surrounding neighborhood, from being built. The City's Municipal Code allows removal
of such trees as long as appropriate replacements are planted.
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 -2018-05, 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
TR -2018-05 as set forth in the Minutes of the Administrative Hearing Meeting of April
12, 2018, 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, Evaluation of a
Coast Live Oak Tree at: 22561 Alcalde Road, Cupertino," prepared by Kurt Fouts
(#WE -0681A), dated February 8, 2018 consisting of eleven (11) 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 nos. TM -2017-02 (EA -2017-02), R-
2018-08, and R-2018-09, shall be applicable to this approval.
3. TREE REPLACEMENT SIZE AND LOCATION
The applicant shall plant, at a minimum, a 36 -inch box Coast Live Oak tree in the
front yard of Lot B to the satisfaction of the City, in consultation with the City's
arborist for the tree proposed to be removed in conformance to the replacement
guidelines per Cupertino Municipal Code Section 14.18.160. The size of the
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proposed replacement trees shall 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.
4. 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 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.
5.
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.
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
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overhead costs and any costs directly related to the litigation reasonably incurred by
City.
7. 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 12th day of April, 2018 at a noticed Public Hearing of the
Administrative Hearing Officer of the City of Cupertino, State of California, held by the
Director of Counity Development, or his or her designee, pursuant to Cupertino
Municipal Codaction 19.12.120.
ATTEST:
Gian Paolo Martir
Associate Planner
APPROVED:
Benjamin Fu
Asst. Director of Community Development