Reso 129 ASA-2021-002
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 129
OF THE ADMINISTRATIVE HEARING OFFICER OF THE CITY OF
CUPERTINO APPROVING AN ARCHITECTURAL AND SITE PERMIT
TO EXTERIOR AND LANDSCAPE ALTERATIONS TO AN EXISTING
OFFICE BUILDING LOCATED AT
18920-18922 FORGE DRIVE
SECTION I: PROTECT DESCRIPTION
Application No.: ASA-2021-002
Applicant: Brice Colton (Habitec Architecture)
Location: 18920-18922 Forge Dr. (APN: 316-09-030)
SECTION II: FINDINGS
WHEREAS, the City of Cupertino received and application for an Architectural and Site
Approval to consider allowing modifications to the exterior of an existing office building
and landscape and outdoor amenity improvements, as described in Section I. of this
Resolution; 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 with regard to the application; 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 staff has independently studied the proposed
Project and has determined that the Project is exempt from environmental review
pursuant to the categorical exemption in CEQA Guidelines section 15301 for the reasons
set forth in the staff report dated October 28, 2021 and incorporated herein; and
WHEREAS, the applicant has met the burden of proof required to support said
application; and
WHEREAS, the Administrative Hearing Officer finds as follows with regard to this
application:
Resolution No.129 ASA-2021-002 October 28,2021
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1. The proposal,at the proposed location,will not be detrimental or injurious to property
or improvements in the vicinity, and will not be detrimental to the public health,
safety, general welfare, or convenience.
The proposal includes exterior and landscape modifications to an existing office building and
site. The improvements to the exterior will allow for a better architectural aesthetic, improved
drought tolerant landscaping, and a new exterior gathering spaces for building users. There is
a deed restriction recorded against the property requiring a minimum setback of 175 feet from
the properties in Santa Clara. The closest building improvements is 179'-3"from the nearest
residential property. Therefore, the exterior and landscape modifications will not be
detrimental or injurious to property or improvements in the vicinity, and will not be
detrimental to the public health, safety, general welfare, or convenience.
2. The proposal is consistent with the purposes of Chapter 19.168, the General Plan any
specific plan,zoning ordinances,applicable planned development permit,conditional
use permits, variances, subdivision maps or other entitlements to use which regulate
the subject property including,but not limited to, adherence to the following specific
criteria:
a) Abrupt changes in building scale should be avoided. A gradual transition related
to height and bulk should be achieved between new and existing buildings.
The project scope does not include an increase in floor area of the existing building. The
project will increase design elements and components of the building by consolidating
entrances, new outdoor gathering space, and other associated site improvements. Further,
the project will preserve trees along the permitter of the property to help alleviate any visual
impact from adjacent properties Therefore, there will be abrupt changes in the building
scale related to height and bulk, and no new buildings are proposed.
b) In order to preserve design harmony between new and existing buildings and in
order to preserve and enhance property values, the materials, textures and colors
of new building should harmonize with adjacent development by being consistent
or compatible with design and color schemes with the future character of the
neighborhoods and purposes of the zone in which they are situated. The location,
height and materials of walls, fencing, hedges and screen planting should
harmonize with adjacent development. Unsightly storage areas, utility
installations and unsightly elements of parking lots should be concealed. The
planting of ground cover or various types of pavements should be used to prevent
dust and erosion, and the unnecessary destruction of existing healthy trees should
be avoided. Lighting for development should be adequate to meet safety
Resolution No.129 ASA-2021-002 October 28,2021
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requirements as specified by the engineering and building departments and
provide shielding to prevent spill-over light to adjoining property owners.
The proposed exterior and landscape improvements are harmonious with the existing
building form and compatible with recent developments and upgrades in the project
vicinity. The proposed materials (stucco, glass, Ipe) incorporated into the project
harmonize with the proposed improvements and the proposed landscape improvements.
Proposed tree removals are a result of poor planting location, health, and conflict with the
proposed improvements. Because of the amount of trees on site and no adequate space for
replacements, the applicant has proposed to pay the in-lieu replacement fee. The City's
consulting arborist also concluded that there was no adequate space for replacements.
Lighting for the development has been conditioned to be consistent with the City's lighting
standards and to prevent intrusive effects on adjacent properties.
c) The number, location, color, size, height, lighting and landscaping of outdoor
advertising signs and structures have been designed to minimize traffic hazard,
positively affect the general appearance of the neighborhood and harmonize with
adjacent development.
No signs are proposed as part of this project.
d) With respect to new projects within existing residential neighborhoods, new
development should be designed to protect residents from noise,traffic,light, and
visually intrusive effects by use of buffering, setbacks, landscaping, walls and
other appropriate design measures.
This application is not a new development project.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of the maps, facts, exhibits, testimony, staff's report and
presentation, and other evidence submitted in this matter,subject to the conditions which
are enumerated in this Resolution beginning on PAGE 4 thereof,
The application for an Architectural and Site Approval, Application no. ASA-2021-002 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 no. ASA-2021-002 as set forth in the Minutes of the
Administrative Hearing Meeting of October 28, 2021 and are incorporated by reference
as though fully set forth herein.
Resolution No.129 ASA-2021-002 October 28,2021
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SECTION III:CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT
DEPARTMENT
1. APPROVED EXHIBITS
Approval is based on the plan set drawn by J.Brice Colton of Habitec Architecture
and Interior Design, titled "AN APPLICATION FOR: ASA-2021-002 AT FG01"
consisting of 40 pages labeled as A0.1-A5.7, C3.2-C4.3, and L1-L-25, except as may
be amended by conditions in this resolution.
2. 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 any property data may invalidate
this approval and may require additional review.
3. 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.
4. BUILDING AND FIRE CODE
The applicant shall apply for and obtain building permits to allow the construction
of the approved project. The applicant shall provide information and plans to
allow the Building Official and the Fire Marshall, or their designee, to determine
that the proposed plans comply with Building and Fire Codes in effect at the time
of application for a building permit.
5. MEZZANINE SPACE
The interior mezzanine space is not to be habitable and used only for storage
purposes. In the event that the mezzanine space is used for anything but storage,
the property owner shall be responsible for obtaining the necessary entitlements
for additional office area.
6. TRANSPORTATION DEMAND MANAGEMENT
Prior to building permit issuance, the property owner shall provide a
Transportation Demand Management (TDM) program that allows for a reduction
of single occupancy vehicles to 295 vehicles.
7. 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.
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Any misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
8. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file no. TR-2021-037 shall be applicable to
this approval.
9. 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 occupancy.
10. 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.
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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.
11. 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.
12. OUTDOOR LIGHTING
All outdoor lighting shall be downward directed and shielded. Uplighting for
trees shall be low voltage. Lighting shall be turned off after 11:00 p.m. or when
people are no longer present, whichever occurs later, except lighting required for
security purposes. Lighting spillover is not allowed onto neighboring properties.
13. 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.
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Nighttime construction is allowed if compliant with nighttime standards of
Section 10.48 of the Cupertino Municipal Code.
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.
14. LANDSCAPE PROJECT 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.
15. LANDSCAPE INSTALLATION REPORT
The project is subject to all provisions delineated in the Landscape Ordinance
(CMC, Chapter 14.15). A landscape installation audit shall be conducted by a
certified landscape professional after the landscaping and irrigation system have
been installed. The findings of the assessment shall be consolidated into a
landscape installation report.
The landscape installation report shall include, but is not limited to: inspection to
confirm that the landscaping and irrigation system are installed as specified in the
landscape and irrigation design plan, system tune-up, system test with
distribution uniformity, reporting overspray or run-off that causes overland flow,
and preparation of an irrigation schedule.
The landscape installation report shall include the following statement: "The
landscape and irrigation system have been installed as specified in the landscape
and irrigation design plan and complies with the criteria of the ordinance and the
permit."
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16. LANDSCAPE AND IRRIGATION MAINTENANCE
Per the Landscape Ordinance(CMC, Chapter 14.15), a maintenance schedule shall
be established and submitted to the Director of Community Development or
his/her designee, either with the landscape application package, with the
landscape installation report, or any time before the landscape installation report
is submitted.
a. Schedules should take into account water requirements for the plant
establishment period and water requirements for established landscapes.
b. Maintenance shall include, but not be limited to the following: routine
inspection; pressure testing, adjustment, and repair of the irrigation system;
aerating and de-thatching turf areas; replenishing mulch; fertilizing; pruning;
replanting of failed plants; weeding; pest control; and removing obstructions
to emission devices.
c. Failed plants shall be replaced with the same or functionally equivalent plants
that may be size-adjusted as appropriate for the stage of growth of the overall
installation. Failing plants shall either be replaced or be revived through
appropriate adjustments in water, nutrients, pest control or other factors as
recommended by a landscaping professional.
17. 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.
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.
b. 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.
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c. 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.
d. 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.
e. 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.
18. SIGNAGE
Signage is not approved with this application. Signage shall conform to the City
Sign Code.
19. TREE AND LANDSCAPE MAINTENANCE
The property owner shall be responsible for ensuring that the existing trees and
newly planted trees are properly maintained including but not limited to ensuring
that there is adequate soil drainage, that the soil is well-aerated, and irrigation
systems are thoroughly tested to provide sufficient water to landscaped areas
while reducing water waste.
20. 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:
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■ 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.
21. DARK SKY AND BIRD SAFE COMPLIANCE
Prior to issuance of Building Permits, the applicant/property owner shall submit
final plans in compliance with the approved lighting plans to comply with
development standards of Cupertino Municipal Code Section 19.102.030 Bird-Safe
Development Requirements and Section 19.102.040 Outdoor Lighting
Requirements. In the event changes are proposed from the approved plans, said
changes must be reviewed and approved by the Director of Community
Development or their designee. The applicant shall provide all documentation
required to determine compliance with the Municipal Code.
22. INDEMNIFICATION
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
Resolution No.129 ASA-2021-002 October 28,2021
Page 11
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 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.
SECTION IV: CONDITIONS ADMINISTERED BY THE SANTA CLARA COUNTY FIRE
DEPARTMENT
24. AWNINGS AND CANOPIES
Awning and canopies shall comply with the requirements of CFC Section 3105.2
and 3105.3 for design, construction, and materials.
25. FIRE DEPARTMENT ACCESS
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Fire Department access to the site, the building, and to all fire protection systems
shall be maintained at all times,in accordance with CFC Chapter 5.No obstruction
such as vehicles, storage, and other materials or objects shall be placed or kept
near fire hydrants, fire department inlet connections, or fire protection system
control valves in a manner that would prevent such equipment or fire hydrants
from being immediately discernible, in accordance with CFC 508.5.4.
SECTION V: CONDITIONS ADMINISTERED BY THE OFFICE OF COMMUNITY
DEVELOPMENT-BUILDING DIVISION
The project will be reviewed at the time of building permit submittal and there will
be additional requirements related to stormwater pollutant management and solid
waste diversion and management.
26. ACCESSIBLE PATH OF TRAVEL
Each tenant space of 18920 and 18922 Forge Drive shall have an accessible path of
travel from the Public Right of Way to an accessible entrance to each tenant.
27. ACCESSIBLE EV CHARGING STATIONS
Each tenant space of 18920 and 18922 Forge Drive shall have an accessible path of
travel to the accessible parking stalls and accessible EV charging stations.
PASSED AND ADOPTED this 28t''day of October 2021 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: APPROVED:
Erick Serrano Albert Salvador
Senior Planner Assistant Director of Community Development