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CC Resolution No. 22-021 Approving the Tree Removal Permit (TR-2019-048)RESOLUTION NO. 22-021 A RESOLUTION OF THE CUPERTINO CITY COUNCIL APPROVING A TREE REMOVAL PERMIT TO ALLOW THE REMOVAL AND REPLACMENT OF EIGHT (8) PROTECTED TREES TO ACCOMMODATE THE CONSTRUCTION OF A 166,845 SQUARE FOOT STORAGE FACILITY LOCATED AT 10655 MARY A VE (APN 326-06-050) SECTION I: PROTECT DESCRIPTION Application No.: Applicant: Property Owner: Property Address: TR-2019-048 Emilia Samudio (Jordan Architects) Bass Cupertino, LLC 10655 Mary Avenue (APN: 326-06-050) SECTION II: FINDINGS FOR TREE REMOVAL: WHEREAS, the City Council of the City of Cupertino received an application for a Tree Removal Permit as described in Section I. of this Resolution; 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 18, 2022, the City Council held a public hearing to consider the Development Permit; and WHEREAS, on December 14, 2021 the Planning Commission recommended on a 4-0-1 (Kapil Absent) vote that the City Council approve the Development Permit (DP-2019-05) in substantially similar form to the Resolution presented (Resolution No. 6944), approve the Architectural and Site Approval Permit (ASA-2019-05) in substantially similar form to the Resolution presented(Resolution No. 6945), approve the Fence Exception Permit (EXC -2019-04) in substantially similar form to the Resolution presented (Resolution No. 6946), approve the Tree Removal Permit (TR-2019-048) in substantially similar form to the Resolution presented (Resolution No. 6947); 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 15332, and the exemption in CEQA Guidelines section 15183, for the reasons set forth in the staff report dated January 18, 2022 and incorporated herein; and Resolution No. 22-021 Page2 WHEREAS, the applicant has met the burden of proof required to support said application; and WHEREAS, the applicant has met the burden of proof required to support the application for a Tree Removal Permit; and WHEREAS, the City Council finds as follows with regard to this application: a) 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 demonstrated to the satisfaction of the approval authority that there are no reasonable alternatives to preserve the tree(s). In order to accommodate for the proposed improvements, and parking facilities the existing · trees cannot be preserved in their locations. The applicant proposes replacement trees throughout the site consistent with the Municipal Code Ordinance requirements and proposes to additional trees and plantings where tree coverage and privacy plantings are needed . NOW, THEREFORE, BE IT RESOLVED: The application for a Tree Removal Permit, Application No. TR-2019-048, 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. TR-2019-048 as set forth in the Minutes of the City Council Meeting of January 18, 2022, and are incorporated by reference as though fully set forth herein. 1. The City Council exercises its independent judgment and determines that the Project is exempt from CEQA pursuant to CEQA Guidelines section 15332 and the exemption in CEQA Guidelines section 15183. The exemption in CEQA Guidelines section 15332 applies to an infill development project which 1) is consistent with the applicable General Plan designation and all applicable General Plan policies, as well as the applicable Zoning designations and regulations; 2) occurs within the City limits on a site of less than 5 acres in size that is substantially surrounded by urban uses; 3) is located on a site that has no value for endangered, rare or threatened species; 4) would not result in any significant effects related to traffic, noise, air quality or water quality; and 5) can be adequately served by all required utilities and public services. The exemption in CEQA Guidelines section 15183 applies to a project that is consistent · with General Plan designations and zoning for the site described in the General Plan, the potential impacts of which would be substantially mitigated by the imposition of uniformly applied standard conditions of approval. The General Plan Amendment, Housing Element Update, and Associated Rezoning Final Environmental Impact Resolution No. 22-021 Page3 Report (SCH No. 2014032007), certified by the City Council on December 4, 2014, was prepared consistent with the requirements for applicability of streamlining under CEQA Guidelines Section 15183( d)(2), and there are no environmental effects that are peculiar to the proposed project or project site that were not analyzed in the General Plan EIR; 2. The application for a Tree Removal Permit, Application no. TR-2019-048 is hereby recommended to be approved; and The subconclusions upon which the findings and conditions specified in this Resolution are based are contained in the Public Hearing record concerning Application no.(s) TR- 2019-048 as set forth in the Minutes of the City Council Meeting of January 18, 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 January 15, 2021 consisting of 34 sheets titled as Bay Area Self Storage, A.1 -A.16, C0.l-C3.0, and CLP-01 -CLP-03 prepared by Bruce Jordan Architect, Sandis, and Preinaire Design Group, 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. CONCURRENT APPROVAL CONDITIONS The conditions of approval contained in file nos. ASA-2019-05, EXC-2019-04 and TR - 2019-048 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. TREE REPLACEMENT SIZE The applicant shall provide adequate tree replacements for trees proposed to be removed in conformance with the replacement guidelines per Cupertino Resolution No. 22-021 Page4 Municipal Code Section 14.18.160. The size of the proposed replacement trees shall be modified as follows to be consistent with the City's Protected Tree Ordinance unless deemed infeasible by the City's Consulting Arborist: a. Diameter of trunk size of removed tree up to 12 inches shall be replaced with one 24-inch box tree; b. Over 12 inches and up to 36 inches shall be replaced by two 24-inch box tree or one 36-inch box tree; and c. Over 36 inches shall be replaced with one 36-inch box tree. The current approved replacements are: seven (7) 36-inch box Bloodgood London Plane and one (1) 24-inch box Chinese Pistache If it is determined that it is physically not feasible to plant the required replacements trees, the Applicant may be allowed to pay an appropriate amount of in-lieu fees upon review and written approval of the Community Development Director. 6. ARBORIST REVIEW Prior to building permit issuance, the number, location and species of trees shall be reviewed and approved by the City in consultation with the City's Consulting Arborist. The replacement trees shall be planted prior to building permit final. The Applicant shall provide the Department of Community Development adequate documentation, including, but not limited to, photographs, receipts or invoices, to verify that replacements have been planted. The City's consulting arborist shall inspect the trees after planting and a report ascertaining the good health of the trees mentioned above shall be provided prior to issuance of final occupancy. 7. 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: • 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. Resolution No. 22-021 Page 5 • 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. 8. PROTECTED TREES The applicant understands that the replacement trees may not be removed without a Tree Removal Permit and that they shall be responsible for ensuring the proper maintenance and care of the trees. The applicant shall also disclose the location and species of all replacement trees on site upon sale of the property. 9. 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. 10. 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 hability, 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. Resolution No . 22-021 Page 6 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. 11. 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 regular meeting of the City Council of the City of Cupertino this 18 th day of January, 2022, by the following vote: Resolution No. 22-021 Page 7 AYES: NOES: ABSENT: ABSTAIN: SIGNED: City of C ATTEST: Members of the City Council Paul, Chao, Moore, Wei, Willey None None None Date Kirsten Squarcia, City Clerk Date 1/27/22