CC Resolution No. 22-004 Approving the Conditional Use Permit (U-2018-04)RESOLUTION NO. 22-004
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A USE PERMIT TO ALLOW A MIXED-USED
DEVELOPMENT CONSISTING OF EIGHTEEN (18) RESIDENTIAL
UNITS AND 4,500 SQUARE FEET OF COMMERCIAL SP ACE ON A
NON-HOUSING ELMENT SITE LOCATED AT 10625 SOUTH
FOOTHILL BOULEVARD (APN: 342-16-087 & 088)
SECTION I: PROTECT DESCRIPTION
Application No.: U-2018-04
Applicant: Dan Shaw (SCR Enterprises)
Location: 10625 South Foothill Boulevard (APN#s 342-16-087 & 088)
SECTION II: FINDINGS FOR A USE PERMIT:
WHEREAS, the City of Cupertino received an application for a Use Permit as described
in Section I of this resolution; and
WHEREAS, pursuant to the provisions of the California Environmental Quality Act of
1970 (Public Resources Code Section 21000 et seq.) ("CEQA") and the State CEQA
Guidelines · (California Code of Regulations, Title 14, Section 15000 et seq.) ("CEQA
Guidelines"), the City prepared an Initial Study and proposed Mitigated Negative
Declaration ("Project"); and
WHEREAS, on October 28, 2021, the City of Cupertino's Environmental Review
Committee held a duly noticed public hearing to receive public testimony and reviewed
and considered the information contained in the Draft IS/MND, and voted 5-0-0 to
recommend that the City Council adopt the Draft IS/MND (EA-2018-06) and mitigation
measures; and
WHEREAS, on November 23, 2021, the Planning Commission held a duly noticed public
hearing to receive staff's presentation and public testimony, and to consider the
information contained in the 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 recommended on a 5-0 vote, based on substantial evidence in the record,
that the City Council adopt the MND, adopt and incorporate into the Project and
implement as conditions of approval all of the mitigation measures for the project that
are identified in the IS/MND, and adopt the Mitigation Monitoring and Reporting
Program for the Project (EA-2018-06); and
WHEREAS, on November 23, 2021 the Planning Commission recommended on a 5-0 vote
. that the City Council approve Zone Map Amendment (Z-2018-02), in substantially
Resolution No. 22-004
Page2
similar form to the Resolution presented (Resolution No. 6938) approve the Vesting
Tentative Map (TM-2018-04), in substantially similar form to the Resolution presented
(Resolution No. 6940), approve the Development Permit (DP-2018-07) in substantially
similar form to the Resolution presented (Resolution No. 6939), approve the Architectural
and Site Approval Permit (ASA-2018-09) in substantially similar form to the Resolution
presented(Resolution No. 6941), approve the Use Permit (U-2018-04) in substantially
similar form to the Resolution presented (Resolution No. 6942), approve the Tree
Removal Permit (TR-2018-39) in substantially similar form to the Resolution presented
(Resolution No. 6943); 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 January
13, 2022, the City Council held a public hearing to consider the Use Permit; and
WHEREAS, the City Council of the City of Cupertino is the decision-making body for
this Resolution; and
WHEREAS, on January 13, 2022, after consideration of substantial evidence contained in
the entire administrative record, and prior to consideration of the Use Permit, the City
Council adopted Resolution No. 22-004 adopting and 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 IS/MND, 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 Use Permit.
WHEREAS, the City Council finds as follows with regard to this application:
a) The proposed development, 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;
Given that the project is consistent with the densities and land uses as allowed in the General
Plan and Zoning Ordinance, with the approval of the Zone Map Amendment (Z-2018-02),
the project 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.
b) The proposed development will be located and conducted in a manner in accord with
the Cupertino General Plan and the purpose of the City's zoning ordinances.
The proposed development is in conformance with the Cupertino General Plan and Municipal
Code since the Project is consistent with the existing land use designations (Commercial,
Residential), Municipal Code requirements, including but not limited to, parking regulations,
open space, density.
Resolution No. 22-004
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NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the IS/MND and the Mitigation Monitoring and Reporting
Program for the Project (EA-2018-06), subject to the conditions which are enumerated in
this Resolution beginning on PAGE 3 thereof, and those contained in all other Resolutions
approved for this Project,
The application for a Use Permit, Application No. U-2018-04, 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. U-2018-04 as set forth in the Minutes of the City Council Meeting of January 13, 2022,
and are incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set dated September 15, 20 20 consisting of 55 sheets
labeled as Canyon Crossings Mixed-Use Development, A0-A6, El.1, Ll.0-L3.l, Cl -
C14, and ST2 prepared by LPMD Architects, TS Civil Engineering, and Reed
Associates, 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.
3 . CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. Z-2018-02, TM-2018-04, DP-2018-07,
ASA-2018-09, TR-2018-39, and EA-2018-06 shall be 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. 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.
Res olution No . 22-004
Page 4
Any misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
6. 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 rel_ated environmental
review, if the applicant desires to continue to pursue the project.
Res olution No. 22-004
Pa ge s
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
7. 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. Pursuant
to Government Code Section 66020(d) (1), these Conditions constitute written
notice of a statement of the amount of such fees, and a description of the
dedications, reservations, and other exactions. You are hereby further notified that
the 90-day approval period in which you may protest these fees, dedications,
reservations, and other exactions, pursuant to Government Code Section 66020(a),
has begun. If you fail to file a protest within this 90-day period complying with
all of the requirements of Section 66020, you will be legally barred from later
challenging such exactions.
PASSED AND ADOPTED at a special meeting of the City Council of the City of
Cupertino this 13 th day of January, 2022, by the following vote:
Vote Members of the City Council
AYES: Paul, Chao, Moore, Wei, Willey
NOES: None
ABSENT: None
ABSTAIN : None
SIGNED :
ATTEST:
Kirsten Squarcia, City Clerk
Date
Date
1/27/22