CC Resolution No. 20-111 Approving Tree Removal Permit, Mixed-Use Development, Licensed Assisted Living Memory Care Residences, 21267 Stevens Creek Boulevard
RESOLUTION NO. 20‐111
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A TREE REMOVAL PERMIT TO REMOVE, RELOCATE, AND
REPLACE SEVENTY‐THREE (73) DEVELOPMENT TREES AT THE OAKS
SHOPPING CENTER TO ACCOMMODATE A MIXED‐USED DEVELOPMENT
CONSISTING OF 267 HOUSING UNITS (88 ROWHOUSE/TOWNHOMES, 179
SENIOR APARTMENTS, OF WHICH INCLUDE 48 SENIOR AFFORDABLE
APARTMENTS), 27 MEMORY CARE LICENSED ASSISTED LIVING RESIDENCES
(“MEMORY CARE RESIDENCES”), AND 20,000 SQUARE FEET OF COMMERCIAL
SPACE LOCATED AT 21267 STEVENS CREEK BOULEVARD
(APN: 326‐27‐042, ‐043)
SECTION I: PROJECT DESCRIPTION
Application No.: TR‐2018‐22
Applicant: KT Urban (Mark Tersini)
Property Owner: 190 West St. James, LLC
Location: 21267 Stevens Creek Blvd. (APN #326‐27‐042, ‐043)
SECTION II: FINDINGS FOR TREE REMOVAL:
WHEREAS, the Planning Commission of the City of Cupertino received an application
for a Tree Removal Permit as described in Section I of this resolution; and
WHEREAS, the Westport Cupertino Mixed‐Use Project (“Project”), including the Tree
Removal Permit, is fully described and analyzed in the Initial Study and proposed Final
Environmental Impact Report (State Clearinghouse No. 2019070377) (“EIR” or “Final
EIR”) for the Project; and
WHEREAS, the City of Cupertino’s Environmental Review Committee at its April 16,
2020 meeting reviewed the Final EIR consisting of the April 7, 2020 Public Review Draft
EIR and Response to Comments, received public comments, and voted 5‐0 to recommend
that the City Council certify the EIR for the project; and
WHEREAS, based on substantial evidence in the record, on May 12, 2020, the Planning
Commission recommended on a 5‐0 vote that the City Council certify that the EIR has
been completed in compliance with the California Environmental Quality Act, Public
Resources Code Section 21000 et seq. (“CEQA”) and reflects the independent judgment
and analysis of the City, adopt Findings, adopt and require as conditions of approval all
of the mitigation measures for the Project which are within the responsibility and
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jurisdiction of the City that are identified in the EIR, and adopt the Mitigation Monitoring
and Reporting Program for the Project (EA‐2018‐04); and
WHEREAS, on May 12, 2020 the Planning Commission recommended on a 5‐0 vote that
the City Council approve the Vesting Tentative Map (TM‐2018‐03), in substantially
similar form to the Resolution presented (Resolution No. 6904), approve the
Development Permit (DP‐2018‐05) in substantially similar form to the Resolution
presented (Resolution No. 6901), approve the Architectural and Site Approval Permit
(ASA‐2018‐05) in substantially similar form to the Resolution presented(Resolution No.
6902), approve the Use Permit (U‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6903), approve the Tree Removal Permit (TR‐2018‐22) in
substantially similar form to the Resolution presented (Resolution No. 6906), approve the
Heart of the City Exception (EXC‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6905) for the Senior Enhanced Alternative; and
WHEREAS, on June 4, 2020, as updated on June 25 and 26, 2020, the applicant submitted
and requested the City to consider revisions to the Project (“Revised Senior Enhanced
Project”) that include relocating nine Below Market Rate units from Building 1 to an
additional top story on Building 2, altering the unit mix in Buildings 1 and 2 to provide
additional space for terraces on the tops of those buildings, and changing the unit mix in
Buildings 2 to include two‐bedroom units in addition to studios and one‐bedroom units;
and
WHEREAS, because the revisions in the Project affect building height and dispersion of
BMR units, the project was reviewed by the Planning Commission on July 14, 2020 for
recommendation to the City Council; and
WHEREAS, on July 14, 2020, the Planning Commission recommended on a 3‐2 vote that
the City Council deny the project in accordance with Resolution No. 6908; and
WHEREAS, on July 31, 2020, the applicant submitted a request for an
incentive/concession to consolidate all 48 of the senior BMR units in Building 2; and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Commission held at least one public hearing in regard to this application, and on August
18, 2020, the City Council held a public hearing to consider the Tree Removal Permit; and
WHEREAS, the City Council of the City of Cupertino is the decision‐making body for
this Resolution; and
WHEREAS, on August 18, 2020, after consideration of substantial evidence contained in
the entire administrative record, and prior to consideration of the Vesting tentative Map,
the City Council adopted Resolution No. 20‐105 certifying the EIR, adopting and
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requiring as conditions of approval all of the mitigation measures for the Project which
are within the responsibility and jurisdiction of the City that are identified in the EIR, and
adopting the Mitigation Monitoring and Reporting Program for the Project; and
WHEREAS, the applicant has met the burden of proof required to support the application
for a Tree Removal Permit; and
WHEREAS, the City Council finds as follows with regard to this application:
a) 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).
In order to accommodate for the new development’s residential and mixed‐use buildings,
underground garage, walkways and internal street network to public open spaces, the
existing trees cannot be preserved in their locations. The applicant proposes replacement
trees throughout the site in excess of the conformance with the Municipal Code Ordinance
requirements and proposes to locate the replacements where tree coverage is needed, while
also proposing to relocate four of the Coast Live Oak Trees.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the Environmental Impact Report and the Mitigation
Monitoring and Reporting Program for the Project (EA‐2018‐04), subject to the conditions
which are enumerated in this Resolution, beginning on PAGE 3 herein, and subject to the
conditions contained in all other Resolutions approved for this Project,
The application for a Tree Removal Permit, Application No. TR‐2018‐22, is hereby
approved, and that the subconclusions upon which the findings and conditions specified
in this Resolution are based are contained in the Public Hearing record concerning
Application No. TR‐2018‐22 as set forth in the Minutes of the City Council Meeting of
August 18, 2020 Meeting, and are incorporated by reference as though fully set forth
herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
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Approval is based on the plan set dated June 4, 2020, as updated June 25, 2020,
consisting of 39 sheets labeled as Westport Cupertino, G200 – G213, A001‐A222,
VTM‐1‐VTM‐6, and L100‐L300, drawn by C2K, and Kimley Horn 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, including any misrepresentation
related to the note on the Vesting Tentative Map that the Townhouse/Rowhouse
units will be for‐sale.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. ASA‐2018‐05, EXC‐2019‐03, TM‐
2018‐03, DP‐2018‐05, U‐2019‐03 and EA‐2018‐04 shall applicable to this approval.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
first page of the building plans.
5. TREE REPLACEMENT SIZE
The applicant shall provide adequate tree replacements for trees proposed to be
removed in conformance with 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.
6. ARBORIST REVIEW
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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.
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.
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.
Wood chip mulch shall be evenly spread inside the tree projection fence to a
four‐inch depth.
Tree protection conditions shall be posted on the tree protection barriers.
Retained trees shall be watered to maintain them in good health.
A covenant on the property shall be recorded that identifies all the protected
trees, prior to final occupancy.
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. A report ascertaining the good health of the trees mentioned
above shall be provided prior to issuance of final occupancy.
8. 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
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maintenance and care of the trees. The applicant shall also disclose the location and
species of all replacement trees on site upon sale of the property.
9. CONSULTATION 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.
10. INDEMNIFICATION
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 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
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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.
11. 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 at a regular meeting of the City Council of the City of
Cupertino this 18th day of August, 2020, by the following vote:
Vote Members of the City Council
AYES: Scharf, Paul, Chao, Sinks, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
___________________ ________
Steven Scharf, Mayor
City of Cupertino
_________________________
Date
ATTEST:
_________________________________
Kirsten Squarcia, City Clerk
_________________________
Date
8/28/2020
8/28/2020