CC Resolution No. 21-091 denying an appeal and upholding the Planning Commission’s approval of Application No. R-2020-035 at 1506 Primrose WayRESOLUTION NO. 21-091
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
DENYING AN APPEAL AND UPHOLDING THE PLANNING COMMISSION'S
APPROVAL OF A TWO-STORY PERMIT TO ALLOW A NEW 2,992 SQUARE-
FOOT TWO-STORY HOME WITH A 746 SQUARE-FOOT ATTACHED
ACCESSORY DWELLING UNIT LOCATED AT 1506 PRIMROSE WAY
SECTION I: PROTECT DESCRIPTION
Application No.:
Applicant:
Appellants:
Location:
R-2020-035
Smart Lily, LLC (Khan and Hafiz residence)
Jitesh Vadhia and Chih-Lung Lin
1506 Primrose Way (APN: 366-15-018)
SECTION II: FINDINGS FOR A USE PERMIT:
WHEREAS, the City of Cupertino received an application for a Two-Story Permit to allow
the construction of a new 2,992 square-foot two-story home with a 746 square-foot
attached accessory dwelling unit; and
WHEREAS, the project is determined to be categorically exempt from the California
Environmental Quality Act (CEQA) pursuant to Section 15303 of the CEQA Guidelines;
and
WHEREAS, the necessary notices were given and the comment period for the application
was provided as required by the Procedural Ordinance of the City of Cupertino; and
WHEREAS, the Director of Community Development made the findings required under
Section 19.28.140(B) of the Cupertino Municipal Code and approved the application with
conditions on April 19, 2021; and
WHEREAS, the notice of decision was mailed to the appropriate parties, including the
applicant and any person who contacted City staff with comments during the comment
period, notifying them about the possibility of appealing a project; and
WHEREAS, the Planning Commission of the City of Cupertino received two appeals of
the Community Development Director's approval of the Two Story Permit; and
Resolution No. 21-091
Page2
WHEREAS, the necessary public notices have been given as required by the Procedural
Ordinance of the City of Cupertino, and the Planning Commission has held at least one
public hearing in regard to the appeals; and
WHEREAS, the Planning Commission made the findings required under Section
19.28.140(B) of the Cupertino Municipal Code to deny the appeals and uphold the
Director of Community Development's approval of the application with no amendments
to the conditions of approval on June 22, 2021; and
WHEREAS, the City Council of the City of Cupertino received one appeal of the Planning
Commission's approval of the Two Story Permit; and
WHEREAS, the necessary public notices have been given as required by the Procedural
Ordinance of the City of Cupertino, and the City Council has held at least one public
hearing in regard to the appeal; and
WHEREAS, the appellant has not met the burden of proof required to support said
appeal; and
WHEREAS, the City Council finds as follows with regard to this application:
1. The project is consistent with the Cupertino General Plan, any applicable specific
plans, zoning ordinance, and the purposes of the R-1 Ordinance; and
The proposed project is consistent with the General Plan as the project is within the Low-
Density land use area. There are no applicable specific plans that affect the project. The
project has been found to be consistent with the requirements of Cupertino Municipal Code
Chapter 19.28 Single Family (R-1) Residential.
2. The granting of the permit will not result in a condition that is detrimental or
injurious to property or improvements in the vicinity, and will not be detrimental
to the public health, safety, or welfare; and
The granting of the permit will not result in a condition that is detrimental or injurious to
property improvements in the vicinity, and will not be detrimental to the public health, safety
or welfare as the project is located within the Rl-6 (Single Family Residential) zoning district
and will be compatible with the surrounding uses of the neighborhood. The project meets the
building development regulations of the R-1 Ordinance and complies with the privacy
protection measures to ensure that visual impacts to adjacent neighbors are mitigated.
Resolution No . 21-091
Page3
3. The project is harmonious in scale and design with the general neighborhood; and
The proposed project is located in a residential area consisting of single-family homes. The
subject neighborhood contains a mix of single-story and two-story homes, making the
proposed project compatible with the neighborhood. The proposed 2,992 sq. ft. two-story
residence is comparable in size to the existing residences in the surrounding area and
complies with the R-1 Ordinance regulations for floor area ratio. Additionally, the project
complies with all other development regulations for Rl-6 zoned properties regarding mass
and bulk, including, but not limit ed to, first floor building envelope, minimum setback
regulations, and building height limitations. Furthermore, the applicant has worked with
staff to make significant design changes to the front elevation to be more harmonious in scale
and design with the neighborhood. Design changes included decreasing the overall height of
the project from 25'-8" to 23', simplifying the first and second-story roofiines to
accommodate more gables, simplifying the two-story bay window feature to reduce the three-
dimensional elements of the home, and making the windows more consistent and
proportional throughout the project. Tog ether, the reduced height and design changes
provide better articulation of wall lines, reduce the visual mass of the exposed second story,
and simplify the roofline. The project therefore maintains the single-family home scale found
compatible with the general neighborhood.
4. Adverse visual impacts on adjoining properties have been reasonably mitigated.
Any potential adverse visual impacts on adjoining properties have been reasonably mitigated
through adherence to the setback requirements and privacy protection measures of the R-1
Ordinance. The proposal for 1506 Primrose Way meets, and in some cases exceeds, all setback
requirements for the Rl-6 zoning district. The project proposes a first-floor rear-yard setback
of 28'-5" where only 20' is required; a second-story rear-yard setback of 34'-6" where 25' is
required; and a rear-yard balcony setback of over 26'-6" where 20' is required.
The R-1 Ordinance allows property owners the ability to construct second-story windows
and balconies as long as privacy protection trees and/or shrubs are planted as required by the
ordinance. The project complies with the privacy screening requirements of the R-1
Ordinance by providing privacy screening plantings for the second-story balcony and
second-story windows with a sill height below 5 feet along the rear (eastern) property line
and signed privacy waivers for the right (southern) and left (northern) property lines. Per
the R-1 Ordinance, the objective of privacy protection plantings is to provide substantial
screening within three years of planting. Privacy protection plantings are protected under
the City's Municipal Code (Chapter 14.18) and are recorded as such with a covenant against
the property to inform current and future property owners about their protected status .
Protected trees are not permitted to be removed without obtaining a tree removal permit and
providing replacement plantings.
Resolution No. 21-091
Page4
WHEREAS, the City Council is the approval authority for this project and is granted the
authority by the Cupertino Municipal Code to exercise its independent judgment, based
on the record before it, for purposes of the California Environmental Quality Act; and
NOW, THEREFORE, BE IT RESOLVED that the City Council takes the following actions:
1. Exercises its independent judgment and determines that the Project is exempt from
CEQA pursuant to CEQA Guidelines section 15303. The Class 3 exemption applies to
new construction of small structures, including a single-family residence, or a second-
dwelling unit in a residential zone.
2. DENIES the appeal of an application for a Two-Story Permit, Application no., R-2020-
035, and UPHOLDS the Planning Commission's approval of the Two-Story Permit
subject to the conditions which are enumerated in this Resolution beginning on PAGE 4
thereof. The conclusions and sub conclusions upon which the findings and conditions
specified in this resolution are based, including those contained in the Public Hearing
record concerning Application no. R-2020-035 as set forth in the minutes of City Council
Meeting of October 5, 2021 1 are hereby incorporated by reference as though fully set forth
herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPARTMENT
1. APPROVED EXHIBITS
The approval is based on a plan set entitled "Hafiz -New Residence, "consisting
of fourteen (14) sheets labeled" Al, A2:1(l), A2.1(2), A2.2, A3, A4, AS, A6, A7, AS,
Ll, L2, L3, and TP," stamped as approved on April 19, 2021, and a revised Sheet
A2, stamped as approved on September 23, 2021; and except as may be amended
by conditions in this resolution. In the event there are conflicts between the floor
plan, cross sections and elevation drawings, the elevation drawings take
precedence.
2. UNITS APPROVED
One 2,992 sq. ft. replacement single family home (44.5% FAR) and one 746 sq. ft.
attached accessory dwelling unit has been approved. A covenant shall be recorded
prior to final occupancy to ensure that there shall be no internal connection between
the accessory dwelling unit and the principal dwelling unit throughout the lifetime of
the home, nor shall the accessory dwelling unit ever be allowed to be converted to be
part of the principal dwelling unit.
Resolution No. 21-091
Page5
3. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
building plans.
4. 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 property data may invalidate this approval and may
require additional review.
5. 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.
6. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file no. RM-2020-023 shall be applicable to
this approval.
7. PRIVACY PLANTING
The applicant shall work with the appellants and .the Planning Division to identify
privacy protection trees (not shrubs) that will provide screening for the second-story
balcony and windows with views into neighboring yards and a sill height that is 5
feet or less from the second story finished floor. The applicant shall also provide
privacy trees along the north and south side property lines for a distance of 10-feet
from the rear property line. The variety, size, and planting distance of all the privacy
trees shall be consistent with the City's requirements. The applicant shall additionally
work with the Planning Division on the final location of the privacy trees to ensure
long-term viability and avoid conflicts with PG&E power lines. The final privacy
planting plan shall be reviewed and approved by the Planning Division prior to
issuance of building permits.
8. PRIVACY PROTECTION COVENANT
The property owner shall record a covenant on this property to inform future
property owners of the privacy protection measures and tree protection requirements
consistent with the R-1 Ordinance, for all windows with views into neighboring yards
and a sill height that is 5 feet or less from the second story finished floor. The precise
language will be subject to approval by the Director of Community Development.
Resolution No. 21-091
Page 6
· Proof of recordation must be submitted to the Community Development Department
prior to final occupancy of the residence.
9. FRONT YARD TREE
The applicant shall indicate on site and landscape plans the location of a front yard
tree to be located within the front yard setback area in order to screen the massing of ·
the second story. The front yard tree shall be a minimum 24-inch box and 6 feet
planted height and otherwise be consistent with the City's requirements.
10. FRONT YARD TREE COVENANT
The property owner shall record a covenant on this property with the Santa Clara
County Recorder's Office that requires the retention and maintenance of the required
front yard tree. The precise language will be subject to approval by the Director of
Community Development. Proof of recordation must be submitted to the
Community Development Department prior to final occupancy of the residence.
11. LANDSCAPE PROTECT SUBMITTAL
Prior to issuance of building permits, the applicant shall submit a full Landscape
Documentation Package, per sections 14.15.050 A, B, C, and D of the Landscape
Ordinance, for projects with landscape area 500 square feet or more or elect to submit
a Prescriptive Compliance Application per sections 14.15.040 A, B, and C for projects
with landscape area between 500 square feet and 2,500 square feet. The Landscape
Documentation Package or Prescriptive Compliance Application shall be reviewed
and approved to the satisfaction of the Director of Community Development prior to
issuance of building permits, and additional requirements per sections 14.15.040 D, E,
F, and G or 14.15.050 E, F, G, H, and I will be required to be reviewed and approved
prior to final inspections.
12. EXTERIOR BUILDING MATERIALS/TREATMENTS
The final building exterior plan shall closely resemble the details shown on the
· original approved plans. Final building exterior treatment plan (including but not
limited to details on exterior color, materials, architectural treatments, doors,
windows, lighting fixtures, and/or embellishments) shall be reviewed and approved
by the Director of Community Development prior to issuance of building permits to
ensure quality and consistency. Any exterior changes determined to be substantial
by the Director of Community Development shall either require a modification to this
permit or a new permit based on the extent of the change.
Resolution No. 21 -091
Page 7
13. ACCESORY BUILDINGS/STRUCTURES
The location of all existing and proposed accessory buildings and/or structures shall
be indicated on building permit plans and shall comply with Chapter 19.100,
Accessory Buildings/Structures, of the Cupertino Municipal Code for review and
approval prior to issuance of building permits.
14. DEMOLITION REQUIREMENTS
All demolished building and site materials shall be recycled to the maximum extent
feasible subject to the Building Official. The applicant shall provide evidence that
materials were recycled prior to issuance of final demolition permits.
15. DUST CONTROL
The following construction practices shall be implemented during all phases of
construction for the proposed project to prevent visible dust emissions from leaving
the site:
a) Water all exposed surfaces areas ( e.g., parking areas, staging areas, soil piles,
graded areas, and unpaved access roads) at least twice daily and more often
during windy periods to prevent visible dust from leaving the site; active areas
adjacent to windy periods; active areas adjacent to existing land uses shall be
kept damp at all times, or shall be treated with non-toxic stabilizers or dust
palliatives.
b) All haul trucks transporting soil, sand, or other loose material off-site shall be
covered.
c) All visible mud or dirt track-out onto adjacent public roads shall be removed
using wet power vacuum street sweepers at least once per day. The use of dry
power sweeping is prohibited.
d) All vehicle speeds on unpaved roads shall be limited to 15 mph.
e) All roadways, driveways, and sidewalks to be paved shall be completed as
soon as possible. Building pads shall be laid as soon as possible after grading
unless seeding or soil binders are used.
f) Idling times shall be minimized either by shutting equipment off when not in
use or reducing the maximum idling time to 5 minutes (as required by the
California airborne toxics control measure Title 13, Section 2485 of California
Code of Regulations [CCR]). Clear signage shall be provided for construction
workers at all access points.
g) All construction equipment shall be maintained and properly tuned in
accordance with manufacturer's specifications. All equipment shall be checked
by a certified mechanic and determined to be running in proper condition prior
to operation.
Resolution No. 21-091
Page 8
h) Post a publicly visible sign with the telephone number and person to contact
at the Lead Agency regarding dust complaints. This person shall respond and
take corrective action within 48 hours. The Air District's phone number shall
also be visible to ensure compliance ·with applicable regulations.
The applicant shall incorporate the City's construction best management practices
into the building permit plan set prior to any grading, excavation, foundation or
building permit issuance.
16. COMPLIANCE WITH PUBLIC WORKS CONFIRMATION FORM
The project shall comply with the requirements indicated on the Public Works
Confirmation form dated 11/05/2020, including, but not limited to, dedications,
easements, off-site improvements, undergrounding of utilities, all necessary
agreements, and utility installations/relocations as deemed necessary by the Director
of Public Works and required for public health and safety. The Public Works
Confirmation is a preliminary review, and is not an exhaustive review of the subject
development. Additional requirements may be established and implemented during
the construction permitting process. The project construction plans shall address these
requirements with the construction permit submittal, and all required improvements
shall be completed to the satisfaction of the Director of Public Works prior to final
occupancy.
17. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS
a) All grading activities shall be limited to the dry season (April 15 to October 1), _
unless permitted otherwise by the Director of Public works.
b) Construction hours and noise limits shall be compliant with all requirements
of Chapter 10.48 of the Cupertino Municipal Code.
c) Grading, street construction, underground utility and demolition hours for
work done more than 750 feet away from residential areas shall be limited to
Monday through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to
6 p.m. Grading, street construction, demolition or underground utility work
within 750 feet of residential areas shall not occur on Saturdays, Sundays,
holidays, and during the nighttime period as defined in Section 10.48.053(b)-of
the Municipal Code.
d) Construction activities shall be limited to Monday through Friday, 7 a.m. to 8
p.m. and Saturday and Sunday, 9 a.m. to 6 p.m. Construction activities are not
allowed on holidays as defined in Chapter 10.48 of the Municipal Code. Night
time construction is allowed if compliant with nighttime standards of Section
10.48 of the Cupertino Municipal Code.
Res olution No. 21-091
Page9
e) Rules and regulations pertaining to all construction activities and limitations
identified in this permit, along with the name and telephone number of an
applicant appointed disturbance coordinator, shall be posted in a prominent
location at the entrance to the job site.
f) The applicant shall be responsible for educating all contractors and
subcontractors of said construction restrictions.
The applicant shall comply with the above grading and construction hours and noise
limit requirements unless otherwise indicated.
18. DARK SKY ORDINANCE COMPLIANCE
The applicant shall comply with Dark Sky Ordinance regulations, as applicable, prior
to issuance of the building permit.
19. BIRD SAFE ORDINANCE COMPLIANCE
The applicant shall comply with the Bird Safe Ordinance regulations, as applicable,
prior to issuance of the building permit.
20. ATTIC SP ACE
All proposed attic space shall be non-habitable space. The applicant shall provide
drawings prior to building permit issuance demonstrating all proposed attic spaces
meet this requirement.
21. NESTING BIRDS
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 Department of Fish and
Game Code.
Resolution No. 21-091
Page 10
a) Construction and tree removal/pruning activities shall be scheduled to avoid
the nesting season to the extent feasible. If feasible, tree removal and/or
pruning shall be completed before the start of the nesting season to help
preclude nesting. The nesting season for most birds and raptors in the San
Francisco Bay area extends from February 1 through August 31.
Preconstruction surveys (described below) are not required for tree removal or
construction activities outside the nesting period. If construction activities and
any required tree removal occur during the nesting season (February 1 and
August 31), a qualified ornithologist shall be required to conduct surveys prior
to tree removal or construction activities. Preconstruction surveys shall be
. .
conducted no more than 14 days prior to the start of tree removal, pruning or
construction. Preconstruction surveys shall be repeated at 14-day intervals
until construction has been initiated in the area after which surveys can be
stopped. During this survey, the ornithologist shall inspect all trees and other
possible nesting habitats in and immediately adjacent to the construction: areas
for nests.
b) If the survey does not identify any nesting birds that would be affected by
construction activities, no further mitigation is required. If an active nest
containing viable eggs or young birds is found sufficiently close to work areas
to be disturbed by these activities, their locations shall be documented and
protective measures implemented under the direction of the qualified
ornithologist until the nests no longer contain eggs or young birds.
c) 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
ornithologist, 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. The active nest within an exclusion zone shall be monitored on a
weekly basis throughout the nesting season to identify signs of disturbance and
confirm nesting status. The radius of an exclusion zone may be increased 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 and buffers shall remain in effect until the young have
left the nest and are foraging independently or the nest is no longer active.
Resolution No. 21-091
Page 11
d) A final report on nesting birds and raptors, including survey methodology,
survey date(s), map of identified active nests (if any), and protection measures
(if required), shall be submitted to the Planning Manager, through the building
permit review process, and be completed to the satisfaction of the Community
Development Director prior to the start of grading.
22. INDEMNIFICATION AND LIMITATION OF LIABILITY
As part of the application, 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.
Resolution No. 21-091
Page 12
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 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.
23. 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 5th day of October 2021, by the following vote:
Vote Members of the City Council
A YES: Paul, Chao, Willey
NOES: Moore, Wei
ABSENT: None
ABSTAIN: None
SIGNED:
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Darcy Paul, \io Date
City of Cupertino
ATTEST:
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Date Kirsten Squarci~, · ty Clerk