Reso 120CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 120
OF THE ADMINSTRATIVE HEARING OFFICER OF THE CITY OF CUPERTINO
ADOPTING A MITIGATED NEGATIVE DECLARATION AND MITIGATION
MONITORING AND REPORTING PROGRAM TO SUBDIVIDE AN
APPROXIMATELY 0.74-ACRE LOT INTO THREE PARCELS OF AT
11226 BUBB ROAD (APN 342-29-036)
SECTION I: PROJECT DESCRIPTION
Application No: EA-2018-02
Applicant: Ray Chen
Location: 11226 Bubb Road (APN: 362-06-036)
SECTION II: ENVIRONMENTAL REVIEW PROCESS
WHEREAS, the City of Cupertino received an application to subdivide an approximately
0.74-acre lot into three parcels of approximately 9,746 square feet, 9,699 square feet, and
11,928 square feet; 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 prepared an Initial Study and proposed
Mitigated Negative Declaration for the Project (“IS/MND”); and
WHEREAS, the Project is additionally described in the November 2020 “Bubb Road
Project” Draft Initial Study/Mitigated Negative Declaration (“Draft IS/MND”); and
WHEREAS, on December 3, 2020 the City issued a Notice of Intent to Adopt a Mitigated
Negative Declaration; and
WHEREAS, on December 3, 2020 the Draft IS/MND for the project was distributed to
responsible agencies and the public for review and comment for a 20-day period that
ended December 24, 2020; and
WHEREAS, the IS/MND concluded that significant environmental effects on Biological
Resources, and Hazards and Hazardous Materials would be avoided or reduced to less-
than-significant levels by mitigation measures (“MM”) identified in the IS/MND; and
Resolution No. 120 EA-2018-02 February 11, 2020
Page -2
WHEREAS, on January 21, 2021, prior to any action adopting the Draft IS/MND, the City
of Cupertino’s Environmental Review Committee held a duly noticed public hearing to
receive public testimony where it considered the information contained in the Draft
IS/MND, and voted 4-0-1 (Fung absent) to determine that a Mitigated Negative
Declaration is appropriate for the project; and
WHEREAS, the Administrative Hearing Officer is the approval authority on this permit
pursuant to the City of Cupertino Municipal Code; and
WHEREAS, on February 11, 2021, the Administrative Hearing Officer held a duly noticed
public hearing to receive staff’s presentation and public testimony, and consider the
information contained in the Final IS/MND, along with all staff reports, other pertinent
documents, and all written and oral statements received prior to and at the public
hearing; and
WHEREAS, prior to taking action on the Project, the Administrative Hearing Officer has
independently reviewed and considered the Final IS/MND.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony, staff reports, public
comments, and other evidence submitted in this matter, the Administrative Hearing
Officer:
1. Finds that the Final IS/MND for the Project has been completed in compliance with
the CEQA and reflects the independent judgment and analysis of the City.
2. Finds that, on the basis of the whole record before it, there is no substantial evidence
that the Project as proposed and mitigated will have a significant effect on the
environment.
3. Adopts the Final Mitigated Negative Declaration (Final MND) for the Project.
4. Adopts the Mitigation Monitoring and Reporting Program for the Project, attached
hereto as Exhibit 1, and incorporated herein by reference, which incorporates all the
mitigation measures required under the Final MND. The Administrative Hearing
Officer further makes the mitigation measures required conditions of approval of the
Project to the extent they are within the responsibility and jurisdiction of the City as
summarized below:
a. BIOLOGICAL RESOURCES MITIGATION MEASURES
MM IV-1:
Nests of raptors and other birds shall be protected when in active use, as
required by the federal Migratory Bird Treaty Act and the California Fish
and Game Code. The construction contractor shall indicate the following
Resolution No. 120 EA-2018-02 February 11, 2020
Page -3
on all construction plans, if construction activities and any required tree
removal occur during the breeding season (February 1 and August 31).
Preconstruction surveys shall:
• Be conducted by a qualified biologist prior to tree removal or
grading, demolition, or construction activities. Note that
preconstruction surveys are not required for tree removal or
construction, grading, or demolition activities outside the nesting
period.
• Be conducted no more than 14 days prior to the start of tree removal
or construction.
• Be repeated at 14-day intervals until construction has been initiated
in the area after which surveys can be stopped.
• Document locations of active nests containing viable eggs or young
birds.
Protective measures for active nests containing viable eggs or young birds
shall be implemented under the direction of the qualified biologist until the
nests no longer contain eggs or young birds. Protective measures shall
include:
• Establishment of clearly delineated exclusion zones (i.e.,
demarcated by identifiable fencing, such as orange construction
fencing or equivalent) around each nest location as determined by
the qualified biologist, taking into account the species of birds
nesting, their tolerance for disturbance and proximity to existing
development. In general, exclusion zones shall be a minimum of 300
feet for raptors and 75 feet for passerines and other birds.
• Monitoring active nests within an exclusion zone on a weekly basis
throughout the nesting season to identify signs of disturbance and
confirm nesting status.
• An increase in the radius of an exclusion zone by the qualified
biologist if project activities are determined to be adversely
affecting the nesting birds. Exclusion zones may be reduced by the
qualified biologist only in consultation with California Department
of Fish and Wildlife.
• The protection measures shall remain in effect until the young have
left the nest and are foraging independently or the nest is no longer
active.
Exhibit EA-1
Mitigation Monitoring and Reporting Program
Bubb Road
Tentative Map
11226 Bubb Road
(APN 362-06-036)
Impact Mitigation Measure Timeframe and Responsibility
for Implementation
Method of Compliance Oversight of
Implementation
BIOLOGICAL RESOURCES
IMPACT A - BIO
Have a substantial
adverse effect, either
directly or through
habitat modifications,
on any species
identified as a
candidate, sensitive,
or special status
species in local or
regional plans,
policies, or
regulations, or by the
California
Department of Fish
and Game or U.S. Fish
and Wildlife Service?
MM IV-1:
Nests of raptors and other birds shall be
protected when in active use, as
required by the federal Migratory Bird
Treaty Act and the California Fish
and Game Code. The construction
contractor shall indicate the following
on all construction plans, if construction
activities and any required by the federal
Migratory Bird Treaty Act and the
California Fish
and Game Code. The construction
contractor shall indicate the following
on all construction plans, if construction
activities and any required tree removal
occur during the breeding season
(February 1 and August 31).
Preconstruction surveys shall:
• Be conducted by a qualified biologist
prior to tree removal or
grading, demolition, or construction
activities. Note that preconstruction
surveys are not required for tree removal
or construction, grading, or demolition
activities outside the nesting period.
• Be conducted no more than 14 days prior
to the start of tree removal or construction.
• Be repeated at 14-day intervals until
construction has been initiated in the area
after which surveys can be stopped.
If construction activities and any
required tree removal occur
during the breeding season
(February 1 and August 31), a
qualified biologist (hired by the
Project proponent) shall
conduct surveys prior to tree
removal or construction
activities.
Preconstruction surveys are not
required for tree removal or
construction activities outside
the nesting period.
If grading and/or tree
removal begins during the
stated dates in the
mitigation measure, a final
report of nesting birds,
including any protection
measures, shall be
submitted to the Director of
Community Development
prior to the start of
demolition and/or any
construction activity,
including grading.
Director of Community
Development
Impact Mitigation Measure Timeframe and Responsibility
for Implementation
Method of Compliance Oversight of
Implementation
• Document locations of active nests
containing viable eggs or young
birds.
Protective measures for active nests
containing viable eggs or young birds
shall be implemented under the direction
of the qualified biologist until the nests no
longer contain eggs or young birds.
Protective measures shall include:
• Establishment of clearly delineated
exclusion zones (i.e., demarcated by
identifiable fencing, such as orange
construction fencing or equivalent) around
each nest location as determined by the
qualified biologist, taking into account the
species of birds
nesting, their tolerance for disturbance and
proximity to existing development. In
general, exclusion zones shall be a
minimum of 300
feet for raptors and 75 feet for passerines
and other birds.
• Monitoring active nests within an
exclusion zone on a weekly basis
throughout the nesting season to identify
signs of disturbance and
confirm nesting status.
• An increase in the radius of an exclusion
zone by the qualified
biologist if project activities are determined
to be adversely
Impact Mitigation Measure Timeframe and Responsibility
for Implementation
Method of Compliance Oversight of
Implementation
affecting the nesting birds. Exclusion zones
may be reduced by the qualified biologist
only in consultation with California
Department of Fish and Wildlife.
• The protection measures shall remain in
effect until the young have
left the nest and are foraging
independently or the nest is no longer
active.
HAZARDS AND HAZARDOUS MATERIALS
IMPACT B – HAZ
Create a significant
hazard to the public or
the environment
through reasonably
foreseeable upset and
accident conditions
involving the likely
release of hazardous
materials into the
environment?
MM VIII-1:
Prior to issuance of any grading permits,
the following measures shall be reflected
on the project grading and foundation
plans, subject to review and approval by
the Santa Clara County Environmental
Health Department:
• Soil adjacent (within three feet) to the
foundation along the front of
the house shall be removed to a depth of
one foot and off-hauled by
a licensed hazardous waste contractor
(Class A) and contractor
personnel that have completed 40-hour
OSHA hazardous training.
The soil shall be disposed of appropriately
in accordance with
applicable federal, State, and local
regulations associated with
hazardous waste.
• After demolition of the existing
residence, the soil within the
Prior to issuance of any grading
permits, the applicant shall note
the required measures on all
grading and foundation plans.
The required measures shall be
conducted by a licensed
hazardous waste contractor
(Class A) and contractor
personnel that have completed
40-hour OSHA hazardous
training.
The City Engineer shall
review all project grading
and foundation plans for
the noted measures prior to
issuance of any grading
permits.
Proof of implementation of
the measures shall be
provided to the Community
Development Department
upon completion.
Director of Community
Development and City
Engineer
Impact Mitigation Measure Timeframe and Responsibility
for Implementation
Method of Compliance Oversight of
Implementation
foundation shall be removed to a depth of
one foot and off-hauled
by a licensed hazardous waste contractor
(Class A) and contractor
personnel that have completed 40-hour
OSHA hazardous training.
The soil shall be disposed of appropriately
in accordance with
applicable federal, State, and local
regulations associated with
hazardous waste.
The project applicant shall provide proof of
implementation of the above
measures to the Planning Department and
the Santa Clara County
Environmental Health Department.