Reso 130 TR-2021-037
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 130
OF THE ADMINISTRATIVE HEARING OFFICER
OF THE CITY OF CUPERTINO APPROVING A TREE REMOVAL
PERMIT TO ALLOW THE REMOVAL SIX PROTECTED TREES
LOCATED AT 18920— 18922 FORGE DRIVE
SECTION I: PROTECT DESCRIPTION
Application No.: TR-2021-037
Applicant: Brice Colton (Habitec Architecture)
Location: 18920-18922 Forge Dr. (APN: 316-09-030)
SECTION II: FINDINGS TREE REMOVAL PERMIT:
WHEREAS, the City of Cupertino received an application for a Tree Removal permit 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 in 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 15304 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:
2. 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
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demonstrated to the satisfaction of the approval authority that there are no
reasonable alternatives to preserve the tree(s).
The trees are proposed for removal due to the poor planting locations, and due to conflict
with the proposed improvements. The applicant has worked with Staff to minimize the
number of removals to those that are in poor health, direct conflict with proposed
improvements, or both.
3. That the protected trees are a detriment to the subject property and cannot be
adequately supported according to good urban forestry practices due to the
overplanting or overcrowding of trees on the subject property.
The trees are proposed for removal due to poor health, poor planting locations, and due to
conflict with the proposed improvements. The applicant has worked with Staff to minimize
the number of removals to those that are in poor health, direct conflict with proposed
improvements, or both. The City's consulting arborist has reviewed the arborist report and
takes no exception to the proposal for removal.
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 2 thereof:
The application for a Tree Removal permit, Application no. TR-2021-037 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. TR-2021-037 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.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
This approval for tree removals is based on the certified arborist report prepared by
Samuel Oakley (ISA Board Certified Master Arborist, WE-9474 B) with Arborwell,
dated June 23, 2021 consisting of nine (9) pages, except as may be amended by
conditions in this resolution.
Resolution No.130 TR-2021-037 October 28,2021
Page 3
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. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file no. ASA-2021-002 shall be applicable to
this approval.
4. 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.
5. IN-LIEU TREE REPLACEMENT FEES
The Director of Community Development has determined that it is physically
infeasible to plant the eight (8) 24" box trees or four (4) 24" box trees and two (2) 36"
box replacement trees on the subject site. Therefore, the applicant shall pay the tree
replacement in-lieu fee, consistent with Protected Tree Ordinance Section 14.18.160
(B) (1), prior to tree removal or building permit issuance.
6. TREE PROTECTION
For trees the trees that are to remain adjacent to Tree#4 and#6,the following measures
are to take place prior to removal of Tree #4 and #6:
• Tree protection fecing at the back of the planter and/or wrapping the trunks
with straw wattle to a height of eight (8) feet to provide a minimum protection
against incidential contact by equipment.
• Root pruning guidelines to minimize damage to roots two (2)inches and larger
in dimater (i.e. expose roots two (2) inches and larger in diameter by hand and
prune them square and clean outside the limit of the proposed grading).
• Maintain the existing irrigation system or provide the trees with supplemental
irrigation until irrigation system is operational.
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
Resolution No.130 TR-2021-037 October 28,2021
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trees to be retained and shall provide reviews prior to issuance of demolition,grading
or building permits. Additionally, a report ascertaining the good health of the trees
mentioned above shall be provided prior to issuance of final occupancy. Any trees
identified to be in poor health shall be required to be removed and replaced.
7. 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 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.
Resolution No.130 TR-2021-037 October 28,2021
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The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
8. 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 this 2W11 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