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CC Resolution No. 23-080 approving the Tree Removal Permit (TR-2022-006) RESOLUTION NO. 23-080 A RESOLUTION OF THE CUPERTINO CITY COUNCIL APPROVING A TREE REMOVAL PERMIT TO REMOVE, AND FITYONE (51) DEVELOPMENT TREES TO ACCOMMODATE A PROPOSED MIXED-USE DEVELOPMENT WITH 34 RESIDENTIAL UNITS, 7,595 SQ. FT. COMMERCIAL SPACE. LOCATED AT 1655 S. DE ANZA BLVD. (APN: 366-10-061, -126) SECTION I: PROJECT DESCRIPTION Application No.: TR-2022-006 Applicant: Carlson Chan (Prospect Venture LLC) Property Owner: Prospect Venture, LLC Location: 1655 S. De Anza Blvd. (APNs 366-10-061, -126) SECTION II: FINDINGS FOR TREE REMOVAL: WHEREAS, the Planning Commission of the City of Cupertino received an application for a Tree Removal Permit as described in Section I of this resolution; and WHEREAS, the proposed project, including the Tree Removal Permit, is fully described and analyzed in the Initial Study and proposed Mitigated Negative Declaration (State Clearinghouse No. 2022100314) (“IS/MND”) for the Project; and WHEREAS, on May 23, 2023 the Planning Commission recommended on a 5-0 vote that the City Council adopt the Mitigated Negative Declaration (EA-2022-005) and approve the Development Permit (DP-2021-002) in substantially similar form to the Resolution presented (Resolution Nos. 2023-08, -09), approve the Architectural and Site Approval Permit (ASA-2021-004) in substantially similar form to the Resolution presented(Resolution No. 2023-10), approve the Tree Removal Permit (TR-2022-006) in substantially similar form to the Resolution presented (Resolution No. 2023-13), approve the Use Permit (U-2021-001) in substantially similar form to the Resolution presented (Resolution No. 2023-012), and approve the Vesting Tentative Map (TM-2021-003), in substantially similar form to the Resolution presented (Resolution No. 2023-011); and WHEREAS, all necessary public notices having been given as required by the City of Cupertino Municipal Code and the Government Code, and the Planning Commission held at least one public hearing in regard to this application, and WHEREAS, on June 21, 2023, the City Council held a public hearing to consider the Project; and Resolution No. 23-080 Page 2 WHEREAS, the City Council of the City of Cupertino is the decision-making body for this Resolution; and WHEREAS, the applicant has met the burden of proof required to support the application for a Development Permit.; and WHEREAS, on June 21, 2023, the City Council adopted Resolution No. 23-075 adopting the Mitigated Negative Declaration for the proposed project, adopting and incorporating into the Project, and implementing as conditions of approval all of the mitigation measures for the project that are identified in the Final Initial Study/Mitigated Negative Declaration, and adopting the Mitigation Monitoring and Reporting Program for the Project, Resolution No. 23-078 approving the Use Permit; Resolution No. 23-076 approving the Development Permit; Resolution No. 23-079 approving a Vesting Tentative Map and Resolution No. 23-077 approving the Architectural and Site Approval Permit for the proposed project; 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). To accommodate for the new development’s structures, walkways and internal street network to public open spaces, the existing trees cannot be preserved in their locations. The applicant proposes replacement trees throughout the site in conformance with the Municipal Code Ordinance requirements and proposes to locate the replacements where tree coverage is needed, while preserving virtually all the trees that are not within the development area of the project site. NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter and the MND, subject to the conditions which are enumerated in this Resolution, beginning on PAGE 4 herein, and subject to the conditions contained in all other Resolutions approved for this Project The application for an Architectural and Site Approval, Application No. TR-2022-006, 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-2022-006 as set forth in the Minutes of the City Council Resolution No. 23-080 Page 3 Meeting of June 21, 2023 Meeting, 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 July 19, 2022 consisting of 72 sheets labeled as 1655 S De Anza Boulevard, A.1– A.46, C1.0 – C10.0, L1 – L5, and E.000-E.103, drawn by Dahlin Group, Sandis, Ripley Design Group, FTF Engineering, and Emerald City Engineers, 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. EA-2022-005, DP-2021-002, TM-2021- 003, U-2021-002, and ASA-2021-004 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 RETENTION If possible, retain the mature Italian Cypresses along the western property line (trees 24 – 36, 38-40, and 41 – 54 on Sheet L6) to provide ample privacy protection to the rear yards of the adjoining single-family residences, by modifying the on-site grading. If this is not possible, replace the trees with Privacy Planting trees or shrubs as identified in the Privacy Planting list (maintained by the Planning Department) used in R1 zoning districts. 6. TREE REPLACEMENT SIZE The applicant shall provide adequate tree replacements for trees proposed to be removed in conformance with the replacement guidelines per Cupertino Municipal Code Section 14.18.160. The size of the proposed replacement trees shall be modified Resolution No. 23-080 Page 4 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. If it is determined that it is physically not feasible to plant the required replacements trees, the Applicant may pay in-lieu fees determined to be appropriate by the Community Development Director. 7. 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. 8. TREE PROTECTION a. 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. • Tree protection conditions shall be posted on the tree protection barriers. • Retained trees shall be watered to maintain them in good health. Resolution No. 23-080 Page 5 • A covenant on the property shall be recorded that identifies all the protected trees, prior to final occupancy. b. The tree protection measures shall be inspected and approved by the certified arborist prior to issuance of building permits. c. 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. d. A report ascertaining the good health of the trees mentioned above shall be provided prior to issuance of final occupancy. 9. 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. 10. 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. 11. 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 Resolution No. 23-080 Page 6 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. 12. 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 special meeting of the City Council of the City of Cupertino this 21st day of June, 2023, by the following vote: Members of the City Council AYES: Wei, Mohan, Chao, Fruen, Moore NOES: None ABSENT: None ABSTAIN: None Resolution No. 23-080 Page 7 SIGNED: ________ Hung Wei, Mayor City of Cupertino ________________________ Date ATTEST: ________________________ Kirsten Squarcia, City Clerk ________________________ Date 7/10/23 7/11/23