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TR-2024-022 - Approval Action LetterJuly 18, 2024 Irma Adame EC Tree Service Inc. 1113 Stafford Drive Cupertino, CA 95014 SUBJECT: TREE REMOVAL PERMIT ACTION LETTER – Application TR-2024-022 This letter confirms the decision of the Director of Community Development, given on July 18, 2024 approving the Tree Removal Permit to allow the removal and replacement of one 30-inch-diameter, multi-trunk, deodar cedar and one 18-inch-diameter, multi-trunk blue atlas cedar in the front yard of a single-family residence at 1113 Stafford Drive in Cupertino. According to the arborist report submitted by the applicant, the tree has extremely poor structure with several side limbs rubbing against the large bottom limb. The angle in which most of the larger limbs come off of the tree has a high potential to fail. The roots are uplifting the sidewalk and have broken the driveway concrete. Roots were cut. Limbs in the past have failed and landed on tiled roof. According to the arborist’s report, more than 30% of the overall foliage would need to be removed and the roots would need to be pruned away from the sidewalk, driveway, and house, which the arborist does not recommend. Staff has made the necessary findings that both trees proposed for removal can cause potential damage to existing essential structures and cannot be controlled or remedied through reasonable relocation or modification of the structure. The finding is necessary to grant the Tree Removal Permit in accordance with Cupertino Municipal Code (CMC) Section 14.18.180 (A)(1). The application is approved with the following conditions: 1. APPLICATION AND SUPPORTING DOCUMENTATION This approval for tree removal is based on the Tree Risk Assessment Summary and Arborist Report dated April 9th and a revised copy dated April 16th, photographs and measurements submitted by Newborn’s Urban Tree Service and Consulting, LLC., composed by Jeff Newborn, Certified Arborist (WE-5614A) submitted to staff on April TR-2024-022 07/18/24 Catherine Tarone 1113 Stafford Drive Page 2 of 5 TR-2024-022 July 18, 2024 22, 2024. Additional photographs demonstrating that both trees are multi-trunk trees was provided by EC Tree Service on 7/10/2024. 2. ACCURACY OF THE 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. REQUIRED TREE REPLACEMENT The required replacement tree is one (1) 24-inch-box Quercus kelloggii (Black Oak) and one 24-inch-box Cercis occidentalis (Western Redbud) to be planted in the front yard of the subject property in the area as specified on the Replacement Tree Plan, which shall be planted within 30 days of tree removal. The applicant shall provide the Department of Community Development adequate documentation, including but not limited to photographs, receipts, or invoices, to verify that the replacement trees have been planted. The applicant has requested and staff has approved the payment of the in-lieu replacement tree fee for the remaining two required 24-inch-box trees. The residence is constructed in the rear 20’ setback and there is a 10-foot Public Utility Easement and a 5’ Wire Clearance Easement located in the rear yard of the property that prevents upper-canopy trees from being planted in the rear yard. In Lieu Fee for Two 24-Inch-Box Replacement Trees: The City uses the cost of purchase and installation of a Coast Live Oak Tree to calculate the in-lieu fee, regardless of what the species of replacement tree is. Per the City’s consultant arborist, the wholesale cost of one 24-inch-box coast live oak is $225. Since there are two required replacement trees $225 multiplied by two equals $450. And the cost of installation is determined by the Santa Clara County 2024 Northern California Director of Industrial Relations Wage Determination which is $16.00 per hour multiplied by 8 hours (4 hours to install one 24-inch-box tree plus 4 hours to install the other 24-inch-box tree which are work hours confirmed by the City’s arborist) which equals $128. So, $450 plus $128 equals $578 which is the total in-lieu fee. 4. 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 TR-2024-022 07/18/24 Catherine Tarone 1113 Stafford Drive Page 3 of 5 TR-2024-022 July 18, 2024 help preclude nesting. The nesting season for most birds and raptors in the San Francisco Bay area extends from February 1 through August 31. b. If construction activities and any required tree removal occur during the nesting season (February 1 st through August 31st), the owner of the property or tree removal service shall conduct a preconstruction visual inspection of the tree prior to removal. 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. 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 a 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. 5. INDEMNIFICATION AND LIMITATION OF LIABILITY 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 TR-2024-022 07/18/24 Catherine Tarone 1113 Stafford Drive Page 4 of 5 TR-2024-022 July 18, 2024 “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. The Applicant shall agree that the City shall have no liability to the Applicant for business interruption, punitive, speculative, or consequential damages. 6. 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. Please note that an appeal of this decision may be made within 14 calendar days from the date of this letter. If an appeal is filed, you will be notified of a public hearing, which will be scheduled before the Planning Commission. Sincerely, TR-2024-022 07/18/24 Catherine Tarone 1113 Stafford Drive Page 5 of 5 TR-2024-022 July 18, 2024 Catherine Tarone Planning Permit Technician City of Cupertino (408) 777-3297 catherinet@cupertino.gov TR-2024-022 07/18/24 Catherine Tarone