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TR-2024-018 - Approval Action LetterAugust 29, 2024 Bryan Stewart Stewart’s Tree Service, Inc. P.O. Box 63 Antioch, CA 94509 SUBJECT: TREE REMOVAL PERMIT APPROVAL ACTION LETTER – Application TR- 2024-018 This letter confirms the decision of the Director of Community Development, given on Thursday, August 29, 2024, approving a Tree Removal Permit for the removal and replacement of 6 evergreen pears (Pyrus kawakamii), 1 weeping birch (Betula pendula), 3 tulip trees (Liriodendron tulipifera) and one stump that was a tulip tree on a commercial- zoned property occupied by Chase Bank at 20573 Steven’s Creek in Cupertino. City staff, advised by the City’s consultant arborist, has made the necessary finding consistent with CMC 14.18.180 Review, Determination and Findings: “That the tree or trees are irreversibly diseased, are in danger of falling…and cannot be controlled or remedied through reasonable relocation or modification of the structure or utility services.” The city’s consultant arborist states this finding is evidenced by his finding that, “all live symptoms of fireblight with poor branch structure. If left on -site trees #1 – 4 and 6 will continue to decline and branch dieback will progress. Whole tree failures could potentially occur on trees #3 and 6 due to their lean and decaying roots.” This 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. APPROVED PROJECT This approval for tree removal is based on the City’s consultant arborist’s report, dated May 31, 2024, prepared by Scott Stringer, Consulting Arborist & Urban Forester with Hort Science Bartlett Consulting (ISA Certified Arborist #WE-5544A, ISA Tree Risk Assessment Qualified). The report consists of consisting of five (5) pages. 2. ACCURACY OF THE PROJECT PLANS TR-2024-018 08/29/24 Catherine Tarone 20573 Steven’s Creek TR-2024-018 August 29, 2024 Page 2 of 5 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. TREE REPLACEMENT: The required replacement trees are four (4) 24-inch-box Crepe Myrtles, three (3) 24-inch-box Madrina madrone trees, six (6) Brisbane box trees, planted as depicted on the revised replacement tree plan. The applicant has paid the in-lieu replacement tree fee for two of the Brisbane box trees as authorized by the City’s consultant arborist since he found that there is only sufficient space to plant six Brisbane box trees. In Lieu Fee Calculation: 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 each 24-inch-box tree which are work hours confirmed by the City’s arborist) which equals $128. Then, $450 plus $128 equals $578 which is the total in-lieu fee. The replacement trees must be planted within 30 days of the removal of the tree. 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. 4. PROTECTED TREES The applicant understands that 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. 5. 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-2024-018 08/29/24 Catherine Tarone 20573 Steven’s Creek TR-2024-018 August 29, 2024 Page 3 of 5 help preclude nesting. The nesting season for most birds and raptors in the San Francisco Bay area extends from February 1 through August 31. Preconstruction surveys (described below) are not required for tree removal or construction activities outside the nesting period. b. If construction activities and any required tree removal occur during the nesting season (February 1 and August 31), a qualified ornithologist shall be required to conduct surveys prior to tree removal or construction activities. 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. During this survey, the ornithologist shall inspect all trees and other possible nesting habitats in and immediately adjacent to the construction areas for nests. 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 the 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. TR-2024-018 08/29/24 Catherine Tarone 20573 Steven’s Creek TR-2024-018 August 29, 2024 Page 4 of 5 6. 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 “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 partie s 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. 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. TR-2024-018 08/29/24 Catherine Tarone 20573 Steven’s Creek TR-2024-018 August 29, 2024 Page 5 of 5 You have completed the (14) calendar day public posting period which ran from Wednesday, July 24, 2024 to Wednesday, August 7, 2024 at 5:00 pm and the public appeal period which ran from Wednesday, August 7, 2024 to Wednesday, August 21, 2024 at 5:00 PM and no appeals of your application or public comment regarding your application were received during this time. Please take down the noticing board that you posted on site, and you may now proceed with removing all trees proposed for removal and planting the replacement trees. Please send me a photograph of the planted replacement tree within 30 days of the removal of the trees at catherinet@cupertino.gov and then I can mark the permit as completed. Sincerely, Catherine Tarone Planning Permit Technician Planning Division (408) 777-3297 catherinet@cupertino.gov Enclosure: Removal and replacement plan TR-2024-018 08/29/24 Catherine Tarone