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Agenda MINUTES CUPERTINO PLANNING COMMISSION DATE: PLACE: TYPE: Tuesday, December 12, 2006 Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA Regular Meeting Chair Miller called the regular meeting to order at 6:45 p.m. SALUTE TO THE FLAG ROLL CALL Commissioners Present: Chair: Vice Chair: Commissioner: Commissioner: Commissioner: Marty Miller Lisa Giefer Cary Chien Taghi Saadati Gilbert Wong (arrived late) Commissioners Absent: None Staff Present: Community Development Director: Steve Piasecki City Planner: Ciddy Wordell Senior Planner: Vera Gil Senior Planner: Aki Honda Associate Planner: Gary Chao Code Enforcement Officer: Gary Kornahrens Deputy City Attorney: Eileen Murray APPROVAL OF MINUTES Motion: Upon motion of Commissioner Saadati, seconded by Commissioner Chien, the Planning Commission minutes from November 14,2006, were approved. (4-0-1; Commissioner Wong was not yet present for the vote on the minutes) WRITTEN COMMUNICATIONS Staff advised that there are desk items for tonight's agenda. POSTPONEMENTS/REMOVAL FROM CALENDAR There were no postponements or removals from calendar. Cupertino Planning Commission Minutes of December 12, 2006 Page 2 ORAL COMMUNICATIONS There were no oral communications. CONSENT CALENDAR There were no consent calendar items. *** PUBLIC HEARING - ITEM NO.1 Application No.(s): TR-2006-17 Application: Gaurav Banga Location: 21140 Grenola Drive Tree Removal of and replacement for six privacy protection trees for an existing single- family residence. Planning Commission decision final unless appealed. ACTION TO BE TAKEN: Approve or deny TR-2006-17 City Planner Ciddy Wordell presented the staff report as follows: . Explained that this application is a retroactive tree removal and replacement for six privacy protection trees. These trees became protected when a new two-story residence was approved in 2003 for a previous property owner because the two-story had windows and a deck facing the side and rear properties. . Said that the current property owner removed six trees. . Displayed an aerial photograph of the rear of the property that demonstrates a fairly significant canopy of trees at the back. A site plan of the original approval shows existing trees at the time of the approval. Two Redwoods (12" diameter) and four Monterey pines (between 14 and 24" diameter) were removed, as was a large eucalyptus. . Reported that the privacy plan included the six trees removed as well as new trees that were required to be planted. . Said that the six recently removed trees were replaced with six Italian Cypress. The owner explained that his tree service had advised that the removed trees were diseased and needed to be removed. . Stated that the replacement Italian Cypress were planted far apart. They currently offer a narrow column and not much height. . Advised that staff is proposing different replacement trees due to the need for privacy. The recommendation is for six 36-inch box Redwood or Deodar Cedars instead of the Italian Cypress. . Added that Italian Cypress is not good for screening unless planted in offset rows. Cupertino Planning Commission Minutes of December 12, 2006 Page 3 Commissioner Giefer said she that had a procedural question for staff. Since the privacy planting was to be recorded, why did the developer receive final occupancy before that recordation occurred? City Planner Ciddy Wordell agreed that the privacy protection plan was not recorded when it should have been. However, the trees removed here were existing trees. She explained that this current owner was unaware that the privacy protection plan protected the trees he had removed. Commissioner Giefer asked if there is a mechanism in place to assure the planting of required privacy screening. City Planner Ciddy Wordell said that a hold is placed on any house with a privacy screening requirement until proof is provided of recording. Commissioner Giefer pointed out that there was a full approved landscaping plan. She asked if this applicant is required to plant all required trees on the original landscaping plan? City Planner Ciddy Wordell said that since the requirement goes with the property the answer to that question is yes. Mr. Gaurav Banga, Applicant and Property Owner: . Thanked the Commission for the opportunity to speak. . Stated that he was unaware that he could not remove the trees in question and explained that two of the six had white material coming from them. . Said that he was advised that Italian Cypress would be an acceptable replacement. . Said that in retrospect, he should have called the City to verify. . Assured that he is willing to do what it takes and that all privacy trees in the landscape plan were installed and are being cared for by a professional gardener. . Added that he has also planted an additional 15 to 20 trees on the property. . Advised that he is concerned about placement of trees on the perimeter in relation to the fence. . Proposed that he be allowed to plant the new trees further apart and leave the Italian Cypress in place. The Italian Cypress will be 20 to 30 feet tall within five years. Commissioner Chien asked Mr. Gaurav Banga if he is aware that the trees were not recorded. Mr. Gaurav Banga said that if he had been aware he would not have removed them. Commissioner Chien: . Clarified that the City does not have the legal right to take action against Mr. Banga since the requirement to retain the privacy screening trees was never recorded. . Added that what is happening here is more in the spirit of the law rather than the letter of the law. . Asked if Mr. Gaurav Banga would be willing to provide the name of his tree contractor. Cupertino Planning Commission Minutes of December 12, 2006 Page 4 Mr. Gaurav Banga said he had no problem doing that. Commissioner Giefer pointed to a spot on the diagram and asked Mr. Gaurav Banga what was planted in that location. Mr. Gaurav Banga said that there is an entire row of trees in that location. They are Chinese Lantern as approved in the planting plan. Commissioner Giefer asked Mr. Gaurav Banga if he has any objection to planting one Redwood tree at the corner of the property. Mr. Gaurav Banga replied no. Commissioner Giefer said that doing so might be more effective in providing screening at that location. Chair Miller asked Mr. Gaurav Banga what he would do with the current Italian Cypress recently planted. Mr. Gaurav Banga said that they would be removed and replanted elsewhere. Chair Miller asked if addition Deodar Cedars would be planted. Mr. Gaurav Banga replied yes. Chair Miller opened the Public Hearing for Agenda Item NO.1. Ms. Jennifer Griffin: . Said that this situation helps makes people aware of protected trees in Cupertino. . Added that this will beautify this yard once again and will lead to more discussion later tonight. . Advised that if the Italian Cypress are left in place to make sure that they do not interfere with the growth of the remaining trees. . Said that Italian Cypress must be pruned at a certain height as once they exceed 20 feet in height they are hard to maintain. Additionally, they have a short lifespan of approximately 15 years. If short, they provide excellent coverage. . Stated that gardeners working in Cupertino need to know Cupertino's laws. . Suggested that the owner might have recourse against someone who gave him bad advice. . Reiterated that privacy plantings in Cupertino must be maintained and protected. Chair Miller closed the Public Hearing for Agenda Item NO.1. Commissioner Saadati: . Said that he has the same concern about Italian Cypress growing and interfering with other trees. . Agreed that they should be kept short. Cupertino Planning Commission Minutes of December 12, 2006 Page 5 . Stated his support for the staff recommendation and said he hopes the trees planted provide the desired screening. Commissioner Chien: . Said that this offers a good example that protected trees is not just specific species but also those in privacy plans. . Pointed out that the Tree Ordinance is currently under revision. . Said that protected trees need to be recorded so that future owners know. That was not done in this case. . Reminded that technically there is no legal recourse by the City against this owner. . Said that he is more comfortable with planting more Italian Cypress, which in about three years time can provide great screening. . Suggested that the privacy concerns be mitigated with the planting of further Italian Cypress, as he is not comfortable with the staff recommendation. Commissioner Giefer: . Stated that it is not this applicant's fault as he was unaware of the protected status since that requirement was not recorded. . Advised that she is in agreement with the requirement to plant larger trees and proposed six 36-inch box Redwood trees. . Said that the Italian Cypress could be transplanted elsewhere on the property. . Added that she does not want to record the Italian Cypress as privacy screening but rather just the Redwoods that would be planted in their place. Chair Miller asked how tall a 36-inch box tree is? Director Steve Piasecki replied 12 to 14 feet in height. Chair Miller asked how tall a 24-inch box tree is in comparison? Director Steve Piasecki replied between six and eight feet. Chair Miller asked if it is true that a 24-inch box will grow faster than a 36-inch box tree. Director Steve Piasecki said that it really doesn't make that big a difference. You are buying immediacy with a 36-inch box tree in that it is larger to begin with once planted. They would be about the same size in approximately five to six years. Chair Miller: . Reiterated that it is not the fault of this applicant that the tree protection was never recorded. The recordation is neither in the City records nor on the deed. . Expressed appreciation for the applicant's willingness to work with the City. . Said that the issue of using Italian Cypress, Redwood or Deodar Cedars should be worked out with staff. . Said that if more Italian Cypress are to be used it should be indicated on the tree planting management plan that if they are over planted some may be taken down later down the road as growth occurs and they become crowded. . Pointed out that this applicant clearly wants to do the right thing. Cupertino Planning Commission Minutes of December 12, 2006 Page 6 . Said he could accept 24 or 36-inch box trees. Motion: Upon motion of Commissioner Chien, seconded by Commissioner Saadati, the Planning Commission approved a Tree Removal application to replace six privacy protection trees for an existing single- family residence locate at 21140 Grenola Drive, with the requirement to work with staff to determine the appropriate 24 to 36-inch box tree replacements. (4-0-1; Commissioner Wong was not yet present) City Planner Ciddy Wordell expressed thanks to Mr. Gaurav Banga for his cooperation in this matter. *** PUBLIC HEARING - ITEM NO.2 Application No.(s): U-2006-12, ASA-2006-21, TM-2006-11 Application: George Adzich Location: 21891 Granada Avenue Use Permit and Architectural and Site Approval for a two-story, 4,761 square foot single- family residence in a planned development zoning district. Tentative Map to subdivide a 19,842 square foot parcel into two parcels, 9,498 square feet and 6,731 square feet respectively plus street dedication. ACTION TO BE TAKEN: Approve or deny U-2006-12 Approve or deny ASA-2006-21 Approve or deny TM-2006-11 Associate Planner Gary Chao presented the staff report as follows: . Reported that the applicant is seeking a Use Permit, Architectural and Site Approval and a Tentative Map. . Described the subdivision as that of a 19,842 square foot parcel to be split into two lots. Lot 1 is 6,731 square feet and Lot 2 is 9,498 square feet. . Said that a new two-story 5,208 square foot residence is proposed for Lot 2. Lot 1 will remain vacant pending future development. . Stated that the project is located in the Monte Vista Area, on the corner of Granada Avenue and Minaker Court. . Explained that Minaker Court is currently a half street. As part of this project, the applicant will be required to finish off that street including curb, gutters and sidewalk as well as streetlights. . Said that the zoning is PO (Residential 4.4-12). While there are no specific zoning requirements regarding issues such as setbacks and parking, the emphasis is to strive to meet the underlying zoning requirements, which in this case is R-1 (Single Family). . Said that the Use Permit is to allow discretion for greater flexibility in setbacks, FAR, etc. Cupertino Planning Commission Minutes of December 12, 2006 Page 7 . Advised that Lot 2 is 9,498 square feet. The proposed house is 5,200 square feet, which is an FAR of .57. Of that, 447 square feet is a covered patio, 812 square feet is a three-car garage and 251 square feet is the interior great room that is over 16 feet in height and is therefore double counted as square footage. . Said that there are approximately 29 lots in the area with FARs that range between a low at .49 and a high at .93. . Informed that staff is comfortable with the proposed FAR and displayed a diagram that shows the FAR levels across Minaker Court. Four of the properties have an FAR at .93 with the fifth property at .60. Commissioner Giefer asked if some of those are attached homes. Planner Gary Chao: . Replied yes, several are duets. . Said that the evaluation is based upon surrounding area and heritage trees. Two issues are raised. . Described one impact to the residence to the east, which will have a long span of wall (about 74 feet) visible from its rear yard. . Said that staff is suggesting additional building articulation along this easterly elevation and a minimum of a 10-foot single-story building setback that shall be maintained along this easterly elevation from the rear yard of the adjacent property. . Reported that about 12 trees are identified as potentially impacted. Some are on adjacent properties: . Said that Trees 1 and 2 are specimen Oaks that the arborist has identified with concerns. . Advised that the recommendations in relation to Tree 2 include deleting the three-car garage/shop or recess the third car garage/shop further toward the back of the property to provide a minimum 18-foot setback from the trunk of Tree 2. Another recommendation is to delete the driveway leading up to the third garage/shop or use a special porous concrete that is poured over geo-grids that allows water to permeate the driveway and get to the root system underneath. Additionally, Tree 2 is to be cabled and pruned by a certified tree expert prior to final occupancy (as well as Tree 3). . Added that for Tree 3 and Trees 7-11, all draining, trenching and grading activities must not occur within three feet of the easterly property line. Therefore, proposed building footprint should be relocated further (8-10 feet) from the easterly property line. . Recommended approval of the Tentative Map, Use Permit and Architectural and Site Approval subject to changes and resolutions. Commissioner Saadati asked for clarifications on what two dots on the plan represent. Planner Gary Chao said that they are proposed shrubs or groundcover. This is a conceptual plan and this material can be relocated as necessary. Commissioner Saadati asked if staff had conveyed its concerns to the applicant during review. Planner Gary Chao replied yes. Cupertino Planning Commission Minutes of December 12, 2006 Page 8 Commissioner Saadati asked the length of the adjacent property's building and whether it has articulation. Planner Gary Chao said that the proposed building on this subject site is about 75 feet. That is about an equal length to the building wall on the next property. That wall does not have much articulation. Commissioner Chien pointed to a discrepancy in the numbering of trees. Planner Gary Chao clarified that Trees 2 and 3 are Oaks. Commissioner Chien asked if privacy protection landscaping is required with this project. Planner Gary Chao replied yes. On the east elevation all windowsill heights are at 5 feet. Just the south elevation, which this applicant also owns, has privacy impacts. He is willing to sign a waiver to indicate no privacy issues. Commissioner Chien said that there are two proposed staff modifications to the east property line and shop. He asked if staff is aware if any revisions have been done based on staff feedback. Planner Gary Chao replied no. Commissioner Giefer: . Disclosed that she had visited the project site today. . Advised that the applicant had a tree trimmer on site cutting Trees 2 and 3, of which she took photos and sent them to staff. . Added that she was quite shocked to see this. She advised that she talked with the tree cutter and learned that there was no licensed arborist on site supervising this work. . Asked staff if Minaker is a public street? Planner Gary Chao replied yes. Commissioner Giefer asked what it might take to meet the FAR requirement for R-1 zoning. How many square feet would have to be removed? Planner Gary Chao: . Explained that right now the FAR is .57. . Reminded that the patio area is covered and has three walls so that space is counted in the FAR. The great room area is over 16 feet in height and gets double counted in the FAR. If that height were to be dropped that would result in a reduction of approximately 250 square feet. If those items were taken out the project would be at .45 FAR. Commissioner Giefer pointed out that tree protection measures are not mentioned in the draft resolution. Planner Gary Chao advised that the arborist report is referenced. Cupertino Planning Commission Minutes of December 12, 2006 Page 9 Commissioner Giefer asked if there is a reason why the entire development is not coming before the Commission at this time. Planner Gary Chao suggested that this could best be answered by the applicant. Commissioner Wong asked staff to verify that the zoning is PD and not R-1. Planner Gary Chao replied correct. It is PD (R 4.4-12). Commissioner Wong said that it is the intent to meet the requirements of R-1 but not the letter. Planner Gary Chao replied that as written the developer "shall strive to meet the requirements of the underlying zoning district." Commissioner Wong asked staff how far the shop is located from Tree 2. Planner Gary Chao said 10 feet. Commissioner Wong pointed out that if the applicant were to go with a traditional R-1 house at .45 FAR, there would likely be more of a second story. They have tried to mitigate by putting most of the structure on a first story. He added that the reason that the FAR is pushed higher is the double counting of the height of the great room and the enclosed patio area. Planner Gary Chao replied correct. He added that the reason that is done is because with height structures take on the volume of a two-story home so the Ordinance requires double counting of that space. Also a patio with three walls and a roof is considered enclosed. Commissioner Wong clarified that if a resident of Cupertino wants to trim a tree, as long as it is trimmed less than 25 percent, no permit is required. Planner Gary Chao: . Replied that technically that is true but in this case, the arborist did flag those two trees as requiring special consideration. . Added that staff was planning to suggest that the City's arborist monitor the process and that these trees be cabled and trimmed appropriately. . Concluded that, in general, it is correct that anyone can trim any tree by up to 25 percent. Commissioner Wong asked about the concern raised by staff regarding the 74-foot long elevation on the east property line. If the neighbor did not share that concern, would staff still be concerned? Cupertino Planning Commission Minutes of December 12, 2006 Page 10 Planner Gary Chao replied yes, saying that good site planning practices makes sure that no interface issues occur. While it helps that the adjacent neighbor has signed something that supports the project, the property could be sold to someone else in the future. Commissioner Wong said he sees this project as compatible with its neighborhood. Planner Gary Chao said that is the reason that this interface up to the point where the rear yard starts on the adjacent property is supported. He added that the applicant can reconfigure without sacrificing square footage and pointed out that patios don't have to meet rear yard setbacks. There are options available. Commissioner Chien asked about the impacts of Ordinances 1050 and 1523. Planner Gary Chao said that this area was annexed into Cupertino in 1980 and Ordinance 1050 zoned the area as PO-Residential to allow potential flexibility with development. He added that he was not sure about Ordinance 1523 but perhaps it may be an addition for Ordinance 1050. Commissioner Chien asked what takes precedence, an Ordinance or planning principles. Deputy City Attorney Eileen Murray said that the Ordinance has not been amended so it is still effective. Commissioner Chien asked Commissioner Giefer to describe what she observed regarding the trees today. Commissioner Giefer said that she sent email photographs to staff. Commissioner Chien asked staff if these photos are available this evening. Planner Gary Chao replied yes and displayed the photographs. Commissioner Giefer: . Explained the photographs she took on site, saying she is not sure how much has already been removed from these trees. . Asked when the clock starts? Is it a calendar year? . Reminded that there was no arborist supervising this work and that she was surprised to see it underway given there was to be a hearing this evening. . Said that she thought at first that they were removing these trees but the workers said that they had talked to Barrie Coate and they knew what they were doing. Chair Miller asked the depth of the retaining wall on the easterly property line. Planner Gary Chao said he did not know but perhaps the applicant would know. Chair Miller asked if the trees have deep or shallow roots. Planner Gary Chao said that it was not specified. Cupertino Planning Commission Minutes of December 12, 2006 Page 11 Mr. George Adzich, Applicant and Co-Owner of Property: . Explained that he trims his trees every two to three years as recommended and has been doing so for quite some time. . Added that he used the same tree service that he has used for the last 15 years. . Said that the work is typically done in the summertime when the tree company is less busy. . Advised that the tree was trimmed in a way that was called for in the arborist's report. . Expressed his surprise that his gardener was told to stop his work. . Reiterated that he was well within Ordinance requirements and his rights to trim his trees. Regular trimming is the reason these trees are so healthy. . Displayed a Power Point presentation. . Stated that he did an analysis of the area and found that most structures do not meet the R-1 Ordinance requirements. . Explained that he is the owner and builder, together with his wife, of this property. . Said that he is a 40 year resident of Cupertino with prior building experience. He currently lives across the street. . Introduced his architect, Bob Schwenke, who is available for any complex questions. . Reported that Ordinance 1050 designated this area as P-Res 4.4-12 units per gross acre. This Ordinance was enacted in 1980. . Reminded that this is not an R-1 zone. . Pointed out that the area is completely developed. This is the last undeveloped property. . Said that he is developing this property for his own residence and it is on the low side of the guidelines. He is not asking for any exceptions to the zoning. . Quoted Ordinance Section 19.28.060D.2c: for lots that have more than two side yards, the setback shall be consistent for all side yards between the front property line and rear property line. . Added that his proposal meets this Ordinance. . Said that there is no guidance in the R-1 regarding articulation but rather it is a subjective analysis. He fulfills this through the second story requirements and their articulation is consistent with that of adjoining properties. . Stated that a building is a work of art that has to be designed around a neighborhood taking privacy and articulation into account. . Reminded that the adjacent neighbor gave signed approval and has no concerns with the articulation issue raised by staff on the issue of the easterly elevation. He added that mature trees already screen this area. . Described exterior architectural features including the use of high quality materials, smooth stucco, recessed windows and doors, slate and stone wall accents, high end wood-look garage door, a unique courtyard entrance and hip roof. . Assured that tree preservation is very important to him. . Advised that he had lived on this property for 10 years and across the street from it for 6 years. . Added that they designed this proposed home around these trees. They are a key design element of the project. . Promised that they will be preserving all trees on site as well as protecting those on nearby parcels. Cupertino Planning Commission Minutes of December 12, 2006 Page 12 . Pointed out that there is a 24-inch penetration into the soil by the existing concrete retaining wall separating this property from the adjacent. There is a current structure located two feet away. Their proposed structure will be five feet away. . Advised that the arborist said that the only threat to trees is through grading and drainage. They will have a grading and drainage plan prepared. . Assured that the impact of the new structure is zero. . Said that Tree 2 is a large Oak and that the building was purposely angled to accommodate this tree. There will be an expansive open area around the root structure. No soil is to be removed to accommodate the building and no trenching will occur along the root zone. . Described further precautions for Tree 2 including the use of post tension concrete slab instead of typical foundation for the shop and garage therefore requiring no grade penetration and no contact within 30 feet or more of the trunk. . Reiterated that the only risk for the tree is root loss and there will be zero root loss. . Stated that he would eliminate the driveway section leading to the shop area. The separation to the driveway will be over 20 feet. . Displayed slides with tree samples located near structures and paving. Commissioner Giefer asked Mr. George Adzich what his plans are for the front lot. Mr. George Adzich explained that he would likely construct a single-story home on Lot 1 in approximately three to four years. Commissioner Giefer asked Mr. George Adzich why he chose to trim these Oak trees on the day he was coming before this Planning Commission. Mr. George Adzich said that he had planned to have the work done in the summer but waited for the analysis to be completed by the arborist. He didn't want to trim before that report was completed. He added that he had been worried about that limb for a long time and that he was surprised that Commissioner Giefer feels that too much was removed from this tree. Commissioner Giefer pointed out that the arborist's report required that a certified arborist supervise when these trees were trimmed. She asked why such a certified arborist was not there at the time this trimming occurred? Mr. George Adzich said that he didn't think it was necessary and reminded that he has the right to trim up to 25 percent per year. Commissioner Giefer asked Mr. George Adzich if he plans to cable the tree. Mr. George Adzich said that the option was to trim or cable and he chose to trim. Chair Miller opened the Public Hearing for Agenda Item NO.2. Mr. Jan Casera, Oak View Lane: . Said that he lives 200 meters across Stevens Creek Boulevard and has resided in Cupertino since 1993. Cupertino Planning Commission Minutes of December 12, 2006 Page 13 . Explained that his is one of the largest lots in Cupertino at approximately 19,000 square feet. . Stated that he drives by this subject site almost every day taking his son to school. . Added that he visited the site this evening at 6 p.m. and was stunned to find that the tree was not there. . Recounted that he has a 400 and 500-year-old Oak trees on his own property. . Stressed that the Oak tree is virtually gone from this property. . Stated that he is here to protect this lot and tree. . Said that this would be a gorgeous house on a 19,000 square foot lot but it is large for a 9,500 square foot lot. . Pointed out that he lives in a 1,700 square foot house on a large lot. . Agreed with Commissioner Giefer's concern regarding the Oak tree. Ms. Jennifer Griffin: . Said that this is a very interesting item with lots of details to consider including FAR. . Asked that the trees on this lot please be protected. . Said that it is disturbing to hear what happened to the tree today on the day of this hearing. . Stated that this house seems very large. . Added that Monte Vista has a long history and interesting houses. . Pointed out that none of the setbacks appear to meet R-1 standards. . Said that good home development occurs with the house placed well on the lot. . Said that she is concerned about the covered porch. It is good that the space is counted against the FAR because such space tends to become living areas. . Suggesting limiting the size of the house to meet R-1 standards as much as possible. . Stressed the importance of protecting trees. Mr. James Welsh, Commercial Tree Care: . Said that the tree trimming done on the Oaks did not look out of line at all. . Advised that trees need to be crown thinned and that it looks like they did a good job and were conscientious in doing the work. . Said that trees deteriorate if not trimmed properly. Chair Miller closed the Public Hearing for Agenda Item NO.2. Commissioner Giefer: . Said that FAR ratio information provided by the applicant would be more pertinent if they were comparing single family with single-family homes and not with homes that include duet homes. . Agreed that the Monte Vista area has a patchwork of housing. . Said that FAR is a concern. This applicant is developing a large home in close proximity to another. . Reminded that impervious surface over roots jeopardizes trees. Structures smother Oaks. . Said that she supports this application if the shop is eliminated. This would help improve the FAR and help preserve Trees 2 and 3 (Oaks). Cupertino Planning Commission Minutes of December 12, 2006 Page 14 . Said that she would like to improve the distance between the easterly neighbor by increasing the setback where the backyard meets. With that change, she is supportive. Commissioner Wong asked Commissioner Giefer if he understands that she wants to eliminate the shop to help reduce FAR. He also asked for clarification as to what she wants at the easterly property line. Commissioner Giefer: . Said that she prefers more distance and likes the staff recommendation to move the great room forward toward the garage and eliminate the shop. This would be better for the neighborhood. . Stated that she wants less impervious surfaces in that area. She does not want concrete over the drip line. . Added that there is no reason to push the shop back. She prefers the elimination of that shop. Commissioner Wong: . Said that there is no reason for the applicant to have to hide the fact that he is trimming a tree. . Asked staff what it would do in the event of hearing about ongoing tree trimming. . Questioned what was the big deal. Director Steve Piasecki explained that there is no evidence of violation here but this information was learned late in the day. He added that if staff hears of tree trimming that might be of concern, they go out at the first opportunity to determine if there is a violation. Commissioner Wong: . Disclosed that he had visited the site. Mr. George Adzich had invited him and gave a tour. . Said that the applicant is seeking approval of a Tentative Map. . Added that this family wants to build their dream house, including amenities such as a great room, covered patio, etc. . Reminded that they do not have to meet R-1 zoning standards, as this is a PO zone. . Said that the FAR is increased because of the double counting of the higher ceilings of the great room as well as counting the covered patio as square footage. . Stated that he does not agree with the staff recommendation regarding the easterly elevation. . Pointed out that the adjacent neighbor has no such concern. If there were neighborhood concerns, more would have come to this hearing. Instead there are 10 letters of support. . Said that he used to live on a 1,050 square foot house on a large 12,000 square foot lot. . Stated that this applicant wants a bigger living area versus a large backyard. . Suggested that articulation should be more toward the front of the house. . Said that he read Barrie Coate's arborist report and that he prefers trimming to cabling. . Said that mature trees and the wall offers privacy protection to the easterly neighbor. Cupertino Planning Commission Minutes of December 12, 2006 Page 15 . Advised that he is very supportive of this project but is concerned about the shop. He recommends eliminating it or moving it back. Director Steve Piasecki clarified on the issue of calls regarding tree trimming that if Code Enforcement gets a call, they can go out and make their best judgment as to whether a violation has occurred. Commissioner Chien said he would like the City Arborist to answer some questions. Mr. Barrie Coate: . Said that he didn't realize he was going to speak on this issue this evening and did not bring his files. . Stated that he is willing to go and look at the Oak that was trimmed today. Commissioner Chien asked Mr. Barrie Coate to comment on the photographs depicting trees located near structures and/or paved surfaces as provided by the applicant during his presentation. Mr. Barrie Coate: . Explained that the conditions under which these trees exist could be brief or have been over a long time. . Added that there is the issue of different soil conditions. . Opined that pictures are relatively irrelevant. They don't speak to the specific circumstances involved. . Said these photographs might be more meaningful if these trees were located in a small area of Cupertino but that it is hard to see the condition of the top of trees with these photographs. . Suggested that random pictures of which they do not have details not deceive the Commission. Commissioner Chien asked about a 20-foot distance to the tree. Mr. Barrie Coate: . Reported that the goal of an arborist is to propose procedures that will guarantee that a tree remains in good health for 20 years or more. . Said that one standard distance is five times the diameter of the tree trunk for any activity that would damage roots on one side of a tree. That goes up to seven times the trunk diameter if both sides have structures or impervious coverage. . Said that he does not disagree that things are done but it does not mean that they are good for trees. . Added that proximity to trees is not what is recommended. Commissioner Chien: . Thanked the applicant for the time he spent with him on site. . Said that it is good to look at a project site first hand. . Said that he has no problem with the lot split and the applicant is fortunate to have such a large lot. Cupertino Planning Commission Minutes of December 12, 2006 Page 16 . Said he has no problem with the FAR since this is a large lot and the zoning is PO, which offers flexibility to go beyond what is required in an R-1 zone. . Added that .57 FAR is not overdoing it. . Reminded that the staff recommendation is for five additional feet in setback for the easterly property line. . Said that while he does not like five-foot setbacks, they are allowed. . Suggested that perhaps that standard can be upgraded some time in the future. . Advised that the tree is of concern and that the work done on it needs to be verified. If it is actually gone, something needs to happen since we are talking about a protected Oak tree. . Said that it needs to be looked at to see if any modifications can be made to ensure the tree survives. . Expressed support for the project with protection for Tree 2. Commissioner Saadati: . Agreed that the lot is a good size. The applicant could have designed a house with 15- foot side yard setbacks or more but they designed it as they wish it to be. . Added that he is not advocating that the house be redesigned. . Said that there is some articulation to the easterly elevation including the second story setback. . Advised that he is not sure that an additional five-foot setback can easily be done and that there is enough setback as proposed since it is consistent with what is next door. . Explained that the use of post tension concrete slab still requires that soil be compacted and the slab be placed somewhat below grade. . Added that he has been a practicing licensed structural engineer for over 30 years. . Said that the garage can be moved further back. . Advised that he is in favor of the project and his only concern is the tree and that the garage must be built in such a way that it won't impact that tree. Chair Miller: . Said that he is okay with the easterly property line as there is vertical articulation, a retaining wall there and a structure that is only two-feet from the boundary line. . Stated that the cutting of the tree today is a separate application and will need to be inspected. . Agreed that the garage/shop structure would impinge on the Oak and agreed with the staff recommendation to eliminate or push back that garage/shop. Motion: Upon motion of Commissioner Wong, seconded by Commissioner Saadati, the Planning Commission unanimously approved a Tentative Map (TM-2006-11) to allow the subdivision of a 19,842 square foot parcel into two parcels, 9,498 square feet and 6,731 square feet, plus street dedication, for property located at 21891 Granada Avenue. (5-0) Motion: Upon Motion of Commissioner Wong, seconded by Commissioner Saadati, the Planning Commission recommended approval a Use Permit (U-2006-12) and Architectural and Site Approval (ASA2006-21) to allow a two-story, 4,761 square foot single-family residence in a Cupertino Planning Commission Minutes of December 12, 2006 Page 17 planned development zoning for property located at 21891 Granada Avenue, with the added requirement that the shop either be pushed back or that the applicant work with staff to see if the shop can stay in place with tree protection. Chair Miller asked for discussion on the second motion before the vote. Director Steve Piasecki said that staff would like the directions for the shop to be clearer, such as pushed back or eliminated. He added that post tension concrete slab is not a viable option. Motion: Upon motion of Commissioner Giefer, seconded by Commissioner Chien, a friendly amendment was suggested to completely eliminate the shop. Commissioner Wong explained that the reason he left it open-ended was to allow the options of eliminating the shop, pushing it back or reducing in by half. This gives the applicant the option to work with staff. Director Steve Piasecki said that this is clearer direction that works for staff. Commissioner Giefer said that the primary concern is surface within the tree's drip line. Eliminating square footage handles that concern. She suggested moving forward with the vote. Commissioner Saadati suggested leaving it to the arborist and staff as to which option is best, pushing the shop back, reducing it or eliminating it outright. Commissioner Giefer suggested stating specifically that no portion of the building should be located under the tree's drip line. Commissioner Saadati reiterated that it should be whatever the arborist recommends. Director Steve Piasecki explained that the arborist recommends no impervious surface leading to the shop. Motion: Upon motion of Commissioner Giefer, seconded by Commissioner Chien, the friendly amendment to completely eliminate the shop was withdrawn from consideration. At this point the vote on the original motion was taken as follows: Motion: Upon Motion of Commissioner Wong, seconded by Commissioner Saadati, the Planning Commission unanimously approved a Use Permit (U-2006-12) and Architectural and Site Approval (ASA2006-21) to allow a two-story, 4,761 square foot single-family residence in a planned development zoning for property located at 21891 Granada Avenue, with the added requirement that the shop either be pushed back or that Cupertino Planning Commission Minutes of December 12, 2006 Page 18 the applicant work with staff to see if the shop can stay in place with tree protection. (5-0) Chair Miller called for a five-minute recess at 8:50 p.m. Chair Miller reconvened the meeting at 8:55 p.m. *** PUBLIC HEARING - ITEM NO.3 Application No.(s): UP-2006-11, ASA-2006-23, EXC-2006-11 Application: Janet Lau (Merlion Restaurant) Location: 19628 Stevens Creek Boulevard Use Permit for a full bar at a proposed restaurant at Marketplace Shopping Center. Architectural and Site Approval for minor exterior changes to provide outdoor seating. Sign Exception to allow a sign (statue) to exceed the number and height of allowed signs for a proposed restaurant at Marketplace Shopping Center. Planning Commission decision final unless appealed. ACTION TO BE TAKEN: Approve or deny U-2006-11 Approve or deny ASA-2006-23 Approve or deny EXC-2006-11 Senior Planner Vera GiI presented the staff report as follows: . Reported that the applicant is seeking approval of a Use Permit to allow a full bar with a proposed restaurant; a Sign Exception to allow a statue that exceeds allowable sign size and height; and an Architectural and Site Approval for minor modifications to allow outdoor seating. . Described the subject site as Building A that will be shared by Merlion Restaurant and two other tenants. . Gave other examples of restaurants with Use Permits for bars as including Elephant Bar and Chili's. . Said that this site is well insulated from residences by the original shopping center and parking lot. A shared parking plan has been approved and parking should not be an issue. If parking becomes an issue, Building C would not be able to be fully occupied. . Stated that ASA-2006-23 will allow minor architectural changes to allow patio seating, including tiki torches, a glass canopy over the courtyard entrance, wooden shutters in the courtyard and a metal awning at the rotunda. Patio furniture is to be approved by staff prior to installation. . Said that EXC-2006-11 requires consideration as to whether a statue should be counted as a sign or as art per Section 17.06.010. A determination needs to be made as to whether this statue is advertising versus decorative statuary. Staff sees it as a sign in this case as it does advertise a restaurant of the same name (Merlion) as the Cupertino Planning Commission Minutes of December 12, 2006 Page 19 figure depicted in the statue. However, the applicant wants it to be defined as decorative statuary. · Added that if the Planning Commission finds this statue to be art, it would need to be referred to the Fine Arts Commission for review. . Reported that the height needs to be considered. It is proposed at 16 feet. Architectural Advisor Larry Cannon recommends that it be between 9 and 12 feet. Staff is recommending approval at 14 feet with a 12-foot, 6-inch statue on a base that is one foot, six inches tall. . Pointed out other comparable signs including the Menlo Equities artwork at 10 feet in height located at Wolfe & Stevens Creek Boulevard; the Morion that is 20 feet tall at Torre & Rodrigues; and the Perspectives that are 20 feet tall at the Kelly Mill Plaza. . Reported that she had heard from some Commissioners who wanted to discuss the issue of outstanding palm tree replacement requirements at the site. She said that it has nothing to do with the application here. The Design Review Committee held two meetings regarding U-2005-09, one on June 21,2006, and the other on September 21, 2006. A final resolution said that palms could be planted in the parking strips with some modifications to the site. DRC approved a planting plan. . Recommended approval of the Use Permit, Architectural and Site Approval and Sign Exception. Commissioner Saadati asked about lighting for the statues. Planner Vera Gil said that there would be up light fountain lighting. Commissioner Giefer asked how tall the chili is in front of the Chili's Restaurant. Planner Vera Gil replied approximately 4 feet. Commissioner Giefer asked if that would be an example of advertising signage through artwork seeing as it is a Chili for a restaurant called Chili's. Planner Vera Gil replied yes, it would be. Commissioner Wong questioned the condition requiring restaurant odor abatement. Planner Vera Gil said that this is a standard condition placed on all restaurants. It first came up with Elephant Bar. Since then, this condition has been placed for all new restaurants. Commissioner Wong sought clarification that there is no City Ordinance requiring odor abatement equipment. He said he has trouble seeing why this is required and asked what that recommendation was based upon. Director Steve Piasecki said that there were complaints from nearby neighbors from this center. It is not based on a type of restaurant but simply the fact that it is a restaurant. He added that it is not wise to cause a neighborhood dispute over something so small. Putting this equipment in up front is easier than retrofitting and is a preventative act. Cupertino Planning Commission Minutes of December 12, 2006 Page 20 Commissioner Wong restated that there is no Ordinance requiring this. Director Steve Piasecki replied correct. He added that the Commission could decide if this requirement is appropriate. Commissioner Wong: . Reported that the issue of palm trees was brought up at the June 21, 2006, DRC meeting when he and Commissioner Giefer were present. . Stated that his concern at that time was the need to cut into eaves of a brand new building. . Added that he is not comfortable with palms that have to be trimmed every year and that near Building B is not a logical place for palms. . Suggested that it would be nice to have the palms relocated to where the Elephant Bar is. . Stated that he is not saying that there should not be palms in the center but just not here. Planner Vera Gil clarified that the DRC meeting date was June 16th. Commissioner Wong asked why palms were selected. Director Steve Piasecki said that if the Planning Commission feels strongly, Council could be asked to reconsider the palms. However, the arborist says that this proposal is doable. Neighborhood testimony demonstrates support for these proposed palms. The Commission could elect to take minute action to suggest that Council reconsider. It would have to be readvertised and would delay the applicant. Chair Miller asked why this issue is in the model resolution if it has already been decided. Director Steve Piasecki replied that they have been lagging. The Commission can leave that requirement out, as it will be done under the original approval conditions. Planner Vera Gil reported that one palm tree recently died. The applicant is proposing moving that tree's placement back. Commissioner Wong pointed out that in an earlier item this evening, the Commission demanded that a building not be constructed within an Oak tree's root system. In this case palms are being placed close to buildings and impervious surfaces. It is not fair. Director Steve Piasecki explained that palms could go in small spaces. Commissioner Chien asked about selection of material for patio furniture. Planner Vera Gil said that she has seen pictures and it looks like metal. It needs to be of high quality for this high quality restaurant. Director Steve Piasecki said that the Commission could specify wood or metal of high quality. Cupertino Planning Commission Minutes of December 12, 2006 Page 21 Commissioner Chien asked if staff has a preference. Director Steve Piasecki replied no. Commissioner Chien asked if the statue is appropriate in scale and appearance as seen from the street. Planner Vera Gil replied that all staff has is a photographic exhibit at this time. Director Steve Piasecki said that such art should be encouraged in many cases and that the Planning Commission needs to make that determination. Chair Miller said that staff is calling the statue a sign and recommending approval of a Sign Exception. Commissioner Giefer said that per the rendering on Plan Sheet A-3, it shows two elevations. She asked if there is a second Merlion by the entry? Planner Vera Gil replied yes, another is located in the interior courtyard. Commissioner Giefer asked the estimated height of the patio Merlion. Planner Vera GiI replied nine feet. The statue is seven feet, six inches and the pedestal is one foot, six inches. Commissioner Giefer expressed concern that the material for the pond surrounding the fountain looks like cinder block. Planner Vera GiI said she has this as concrete and suggested asking the applicant to clarify material. Mr. Wu Chang, Applicant: . Thanked staff and the City. . Said he is available for questions. . Reported that the patio furniture is teak. . Explained that the Merlion is the symbol of Singapore. It is the trademark of the Singapore government and he has a letter giving him permission to use that symbol. . Assured that this is a high-end restaurant. . Pointed out that this statue is not a product he can sell, it is a symbol. . Added that liquor would only be served with foot. This will not be a bar. Commissioner Chien asked Mr. Wu Chang if he is the one who commissioned this statue or did the property owner and how long it took to carve. Mr. Wu Chang replied that it takes a very long time. The design was created in 1964 and was done by a craftsman from Singapore. The Merlion in Singapore is 28 feet tall. Cupertino Planning Commission Minutes of December 12, 2006 Page 22 Commissioner Chien asked how long the work took. Mr. Wu Chang replied nine months. It is complete and on the way. It is made of cement. Commissioner Chien asked Mr. Wu Chang what material is used surrounding the fountain and when the restaurant would open. Mr. Wu Chang deferred to the architect on the materials surrounding the fountain and said that the opening of the restaurant is delayed and will occur in February. Mr. Sonny Chen, Project Architect, explained that the seat wall is made of concrete around the fountain. Although depicted on the plans currently as concrete block it has been changed to smooth concrete. Commissioner Giefer asked if there are any other signs proposed in addition to the two Merlion statues for this restaurant. Planner Vera Gil replied that they are anticipating two wall signs, one in the rotunda facing the street and one in "the courtyard at the entry. Commissioner Giefer asked if there is a stipulation for abandonment so that the applicant takes the Merlions if they move. Planner Vera Gil replied that they would likely apply for a Sign Exception at their new location should they relocate. She added that she assumes that if the Merlion Restaurant leaves, their signs would leave as well. Commissioner Giefer asked what happens to the fountain in the event this restaurant were to leave this location. Planner Vera Gil replied that this would have to be addressed with the property owner. Chair Miller opened the Public Hearing for Agenda Item No.3. Ms. Jennifer Griffin: . Explained that the Griffin is a mythological beast that is half lion and half eagle. . Stated that she thinks that the Merlion is a wonderful beast. . Reminded that the palm trees are not yet replaced and pointed out that the Marketplace owner was lectured about that fact at the last DRC meeting. . Pointed out that there are so many outstanding issues and that one cannot condone the behavior of the Marketplace owners. . Suggested that the palms be replanted before anything else happens. . Stated that she does not want a nine-foot-tall Merlion on the corner. . Questioned whether a child could drown in the fountain pool. . Said that she is astounded that no one is linking the palm trees to this application. Ms. Kathy Stenkey: . Complimented the staff for their sensitivity to food odor impacts. Cupertino Planning Commission Minutes of December 12, 2006 Page 23 . Reported that such impacts have come up before. . Said that she is pleased to see food odor impacts mitigated before the complaints arrive. . Added that she is pleased to see a statue of some sort. It represents a culture outside of her own culture and that is really important. . Suggested that a seven-foot-high statue may be big and perhaps better for a park. . Welcomed a new restaurant in this center. Chair Miller closed the Public Hearing for Agenda Item No.3. Commissioner Wong: . Stated that the Merlion Restaurant here before the Commission is a separate issue from the palm tree issue. . Reported that he once traveled to Singapore to visit a friend and found the Merlion to be a symbol of Singapore. . Suggested that the height be resolved between applicant and staff. . Questioned the possibility of any child drowning in this fountain. . Said that any child left unattended on a busy street would represent absentee parenting. . Said that he has no concern regarding the proposed height and said that even if the restaurant left the statue could be left there. . Opined that successful shopping centers are important to the City and that this is a revitalized center. . Reiterated that the palm trees are a separate issue from this restaurant application. . Added that it is not right to put a palm tree too close to an adjacent building. Commissioner Chien asked if the safety of the fountain as well as any necessary precautions for that fountain have been studied. Director Steve Piasecki replied that this fountain is so shallow. He added that it is culturally important to have the presence of water with this Merlion statue. He reminded that the fountain would be located where people are going to be all the time. He added that some sort of emergency alarm could be required although it may go off due to dogs and/or cats. Commissioner Chien said that the plan depicts the water depth as six inches but the fountain is capable of holding approximately one-and-a-half feet of water. Director Steve Piasecki suggested that Building staff could evaluate safety. Commissioner Chien: . Stated that he has no problem with a full bar and finds the proposed exterior building changes to be a plus. . Added that the Merlion is a beautiful statue that is a combination between a mermaid and a lion, hence the name. . Suggested that a diverse community is truly an asset. . Stated the need to be fair to all businesses when considering exceptions. Cupertino Planning Commission Minutes of December 12, 2006 Page 24 . Said that he is concerned that construction began on the statue before staff even had a chance to comment on it and said that it is not advisable for an applicant to take action before inquiring. . Stated that this statue is going to be great and will not be a detriment. It will be a plus. . Agreed that the palm trees need to go back and supported establishing a timeline to get them back in there. Commissioner Saadati: . Agreed that the statue fits with the building. It is not overwhelming and will be a fine addition. . Questioned the safety concern raised about the fountain. He said that there are other things less save than six-inches of water. . Added that perhaps less water can be utilized but that he is not too concerned. . Advised that odor abatement has been discussed with other restaurants and this requirement is consistent with other actions taken. It is a good thing. . Expressed agreement that the palms need to be installed and that a timeline should be established to accomplish that. The placement of these palms should be left to the recommendation of the City's arborist. . Pointed out that palms are not as invasive as other trees and seem to work in tight places. . Said that he is in support of the application as recommended by staff. Commissioner Giefer: . Concurred that food odor mitigation has been required in the past at the Marketplace, as well as at Vallco. . Pointed out that it is cheaper to install at the beginning rather than to go back and install this equipment later. . Said that she is concerned about the base of the fountain as in the plan it looks like cinderblocks. . Added that she is happy to delegate this issue to staff to make sure it is tasteful, perhaps colored concrete or stucco. . Said that teak furniture is lovely although not environmentally friendly since it is a slow growing wood. . Suggested tying this approval to the replanting of the palms. This effort to get the palms installed has been a long and tedious process and something needs to be done to get them planted as required. . Said that the City needs to be more specific and give them a business reason why it is important for Marketplace to get these palm trees installed. . Said that she looks forward to the opening of the Merlion restaurant. Chair Miller: . Expressed his support for the Sign Exception and would have also been willing to consider the Merlion statute as art. . Suggested allowing staff to work on the details about the base of the fountain. . Stated he supports the use of teak furniture. . Said he too is concerned over the palm tree issue. Cupertino Planning Commission Minutes of December 12, 2006 Page 25 . Asked staff if relocating the palms on site would require a return to the Planning Commission. Director Steve Piasecki advised that if the applicant wants to change the location, he would need to apply with a revised plan. Perhaps Mr. Okubo can be asked if he is satisfied with the approved location plan. Mr. Wayne Okubo, Evershine Group: . Said that between now and April is not a good time to bring these palms in. After April is best. Chair Miller asked Mr. Wayne Okubo if he accepts the proposed location for the palms. Mr. Wayne Okubo replied yes. Commissioner Chien asked Mr. Wayne Okubo if he has appealed the approved planting plan. Mr. Wayne Okubo replied no. Commissioner Wong sought clarification that January through April is not a good time to plant palms. . Mr. Wayne Okubo replied no. Commissioner Wong asked when is a good time to plant palms. Mr. Wayne Okubo replied May and after. Commissioner Wong asked if a June 30th deadline is acceptable for having the palm trees installed. Director Steve Piasecki suggested that a cash deposit for the cost of installation should be made prior to occupancy of the restaurant. Commissioner Wong said that he does not want to tie this requirement for the palms to this restaurant. Director Steve Piasecki said he is not concerned as Mr. Wayne Okubo has assured that this will be done. Commissioner Wong reiterated that this is the responsibility of the property owner and not the restaurant owner. He added that the odor impacts abatement should only be required if there are actual impacts. He said a restaurant should have the option to put this equipment in. If they do not and problems arrive, they will be required to installed subsequent to those complaints. Cupertino Planning Commission Minutes of December 12, 2006 Page 26 Motion: Upon motion of Commissioner Wong, seconded by Commissioner Saadati, the Planning Commission proposed the approval of a Use Permit (U-2006-11) to allow a full bar at a proposed restaurant at Marketplace Shopping Center; an Architectural and Site Approval (ASA- 2006-23) to allow minor exterior changes to provide outdoor seating; and a Sign Exception (EXC-2006-11) to allow a sign (statue) to exceed the number and height of allowed signs for a proposed restaurant at Marketplace Shopping Center located at 19628 Stevens Creek Boulevard, with the following requirements: . That the applicant work with staff regarding the patio furniture materials (either wood or heavy metal); . That the 14-foot Merlion and the base of the fountain shall be worked out with staff, perhaps using color concrete, stucco or tile on the fountain seat wall; . Give the applicant the option to install odor abatement equipment; and . Add the issue of the planting of the palm trees to Section 3 and 4 so that it is conditioned that the palm trees will be placed by June 30, 2007, and with the requirement that a bond shall be placed in the amount of $5,000 for the required palm trees but not to have the installation of these trees be tied to the Merlion Restaurant. Director Steve Piasecki explained that the bond should be equivalent to the cost of installation of the palm trees and that $5,000 would not cover that cost. Commissioner Chien reminded that Elephant Bar had stated that it was cheaper to install the odor abatement equipment up front rather than later and wondered what this applicant thinks about that. Mr. Wu Chang said that while the unit installed at Elephant Bar costs about $50,000, they have already installed a more expensive and better unit that costs about $100,000. Motion: The vote on the motion above, with the amendment to make the bond amount for the planting of the palm trees be the estimated cost of installing the palm trees on site, was 5-0. Chair Miller advised that this action is final, unless appealed. PUBLIC HEARING - ITEM NO.4 *** Application No.(s): MCA-2006-02 Application: City of Cupertino Location: Citywide Municipal Code Amendment of Chapter 14.18 (Heritage and Specimen Trees). Continued from the October 24, 2006, Planning Commission meeting. Cupertino Planning Commission Minutes of December 12, 2006 Page 27 Tentative City Council date: Unscheduled ACTION TO BE TAKEN: Approve or deny MCA-2006-02 Senior Planner Aki Snelling presented the staff report as follows: . Reminded that this is a continuation of the Municipal Code Amendments to Chapter 14.18 (Heritage and Specimen Trees). . Said that this was last discussed at the meeting of October 24, 2006, when the Planning Commission asked staff to conduct additional research, to clarify language and to provide a draft model Ordinance for review. . Listed a number of discussion items raised at the last hearing, including: o Are street trees exempr? Reported that staff checked with the Public Works Department. PW advised that all City trees, including street trees, are subject to the Tree Ordinance. Added that PW created a memo that discusses their process for tree removal. Any protected trees would go through the Planning Commission for consideration and approval of removal. A reference to this information was added to the model Ordinance. o Sample Deed Restriction: A sample deed restriction was provided in the staff report as Exhibit C. o Heritage Trees Designation Process and Process for Tagging Heritage Trees: Staff has clarified the application process in Ordinance 14.18.040. This includes the application, the submittal requirements and the fact that this requires Planning Commission review and determination. This process for tree designation is to be initiated by the property owner. She added that there is an existing section (14.18.080) that provides the requirements for tagging trees. She reminded that the Planning Commission was asking for additional information regarding how to place the tags on trees and how they are to be maintained. She advised that this is best handled as a separate policy and procedure rather than being included in the Ordinance. o Noticing: The Planning Commission asked staff to expand noticing to 500 feet. This change to the noticing section has been made. o Tree Size: Tree size is measured by the standard trunk diameter at breast height (DBH) as modified in Section 14.18.035B. o Tree Replacement Table: Said that a tree replacement table is under development. She provided a copy of Campbell's list as an example (4-26) although this is not necessarily what is recommended for Cupertino. She informed that Los Gatos bases its replacement on the canopy of the removed tree. The City arborist says that it is difficult to use canopy size and difficult for a layperson to do so. She recommended that Cupertino use trunk size to determine tree replacement. She said that this is creating a new standard here as most cities use valuation or a case- by-case process. o Emergency, Hazardous and Dead Tree Removal: The Planning Commission asked that retroactive tree removal permits be reinstated in the language and staff has done so. These requests must be made within five days of removal of such a tree. Currently, there is no fee charged for retroactive tree removal and no further action other than Director approving. Cupertino Planning Commission Minutes of December 12, 2006 Page 28 Commissioner Giefer asked why not recover the cost for emergency tree replacement? Director Steve Piasecki explained that it is in the public's interest to remove trees if hazardous and/or dangerous or there might be a dangerous situation if delays occur. He stressed the importance of having as simple and straightforward a Tree Ordinance possible that still get the replacement tree installed. Chair Miller asked Director Steve Piasecki what is the standard in determining a dead and/or dangerous tree. Director Steve Piasecki replied that if a tree is dead, there is a presumed danger of falling limbs. He added that there is the semantics of whether a dead tree is a tree or just a bunch of lumber. He reiterated that it is in the public's best interest to facilitate the removal of dead trees without delay. Planner Aki Snelling: . Reminded that the Planning Commission asked staff to walk them through the removal process (4-33 of the report). . Explained that staff adding a finding to allow for rear yard removals if the tree offers no significant visual value or privacy protection. . Trees on common property line. Who is responsible? Reported that the City Attorney says this is a civil matter between property owners unless it was a recorded tree. . Said that when applications are applied for, all owners involved apply. . Added that the prohibition of parking and/or storage within a protected tree's drip line has been added. . Advised that the Planning Commission asked for a breakdown in fees, to reduce the fee for legal tree removals and single tree removals. . Reported that the fee is currently based on 2004 values that were adopted by Council. . Informed that staff is supportive of lowering fees to be consistent with fees of surrounding cities. The lower fee is proposed at $150 for the first tree and $75 for each additional tree. This is similar to Los Gatos' fee. Commissioner Wong asked what is wrong with coming to the Planning Commission or DRC? Planner Aki Snelling said that these fees are just the application fees. It does not include the arborist-consulting fee (typically a $1,000 deposit) and/or mailing fees. Director Steve Piasecki said that this would cover the process but would not cover the cost to the City. These removal permits are more realistically handled at staff level at the counter. Planner Aki Snelling: . Reminded that the Commission also asked for educational awareness and staff plans to create a pamphlet to hand out to the public. . Added that the Commission asked for consideration of impacts of tree canopies on solar panel placements. At their August 15, 2006, meeting, Council gave direction to not make any amendments to address this issue so staff has not. Cupertino Planning Commission Minutes of December 12, 2006 Page 29 . Said that the Commission also wanted to understand the process to add trees to the protected tree list. However, staff is recommending that no additional trees, including the California Pepper, be added to the specimen tree list, as it is a non-native and invasive tree. Director Steve Piasecki: . Explained that the reason this Ordinance is up for discussion right now is that the City is not very successful in enforcing it as it exists. . Said that he has no problem taking non-native trees off the list versus adding native trees on the list. . Reiterated that he does not want to make this updated Ordinance more complicated when the City does not have a good track record managing it as it is. Planner Aki Snelling: . Reported that no examples of a tree management plan were found. . Advised that she surveyed other cities regarding penalties. . Informed that the City arborist is present this evening to answer questions. . Added that a Code Enforcement Officer is here tonight to give information regarding illegal tree removals. . Said that the model Ordinance with changes was distributed. . Stated that an alternative option is proposed by staff for the Commission's consideration. That would be a more prescription process using a detailed table. This would simplify the Ordinance and make it easy for the public to understand. . Described the alternative option to include the Director reviewing and determining tree removal permit applications except for heritage trees. . Reminded that Council wanted some tree removals to go to staff level except for retroactive tree removal permits. . Detailed the alternative options that include a City tree fund that is collected in lieu of tree replacement on site. Instead of having penalties, an applicant for a retroactive tree removal permit would have to pay an administrative fee for staff time to review the request. Chair Miller asked what this fee would be. Planner Aki Snelling: . Replied that the fee has not yet been determined. . Provided the rational for an alternative option as including: it follows Council's direction for tree removal permits to be reviewed/determined at staff level (except retroactive permits); it reduces processing time; it reduces the cost to the City (staff time and resources and Planning Commission meetings) and an administrative fee for retroactive tree removal permits would be high enough to conduct field surveys and document the tree removal. . Recommended that the Planning Commission discuss and provide amendments to this evening's material and said that the City Attorney is here. Chair Miller asked for a report from Code Enforcement. Cupertino Planning Commission Minutes of December 12, 2006 Page 30 Mr. Gary Kornahrens, Code Enforcement Officer, said he researched information going back to 2003. He said the number of calls for service dealing complaints about tree removals has gone up in 2006. He said that only about 25 percent of those calls on trees are actually violations. He said that this has not changed since the recovery fees were established. Ms. Eileen Murray, Deputy City Attorney: . Advised that she contacted Los Gatos' City Attorney. . Explained that there is an established civil penalty but one has to go to court and sue for a nuisance, claiming cost of replacement as damages. . Said that in Los Gatos there is a penalty of $1,000. They use an Administrative Process with a hearing officer that functions like a court. . Added that the need for an Administrative Process has come up in other areas such as dogs and garbage. . Suggested that the City of Cupertino might consider setting up an Administrative Process for administrative citations. This would be helpful. Chair Miller opened the Public Hearing for Agenda Item NO.4. Ms. Jennifer Griffin: . Stated that she was very pleased to see the 105-page document. There were a lot of interesting guidelines put in to protect trees including those trees on construction sites. . Recounted that she has seen horrible damage done to trees on construction sites. . Mentioned that a contractor cut one street tree's roots and that tree fell over near her home. . Suggested that the Commission do everything possible to protect trees in Cupertino. . Pointed out that the whole theme tonight is trees and how to protect them. . Added that doing so reaps benefits for decades to come. Mr. Adam Montgomery: . Thanked staff and the Commission for answering his questions. . Said that it is the right direction to simplify the Ordinance. . Said that he sent in a letter today. Ms. Kathy Stenkey: . Opined that too many protected trees can make an Ordinance cumbersome. . Discouraged adding the Pepper tree to the protected list as this is a messy tree that has been banned from several counties and she suggested that the City look at the Pepper tree cautiously before putting it on a protected tree list. . Stated that Redwoods are often over planted. . Suggested that a Task Force be formed to identify trees to protect. . Assured that there are a lot of tree lovers, herself included, who would be happy to serve on such a Task Force. Ms. Deborah Jamison: . Described herself as a 22-year resident living in a 36-year old neighborhood. . Lamented that larger trees have been removed and replaced with small saplings. Cupertino Planning Commission Minutes of December 12, 2006 Page 31 . Said she wanted to introduce a concept of putting the issue of wildlife habitat as an additional value of trees and supported a better human connection with nature and wildlife. She reminded that other species share City space. . Stressed that the value of trees is to help preserve the natural heritage. . Said that most people don't know that most trees are not native. . Suggested adding trees such as Bay Laurel, Western Sycamore and all of the native Oaks as part of the natural heritage. Mr. James Welsh, Commercial Tree Care: . Said that the City is doing a good job with this and that he is glad to see more participation in the process. It gives a good feeling. . Said that 500 foot mailing raises the cost and suggested that 300 feet is adequate. . Stated that allowing only five days to replant on a retroactive tree removal permit is too short a time. He suggested that 30 days would be better. . Suggested considering the weight when determining the size of a tree. He explained that a 15-gallon tree weighs 20 pounds. A 24-inch box tree weighs 240 pounds. A 36- inch box tree weighs between 400 and 600 pounds. That is a lot of weight to get into a backyard and results in a lot of expense, including a crane to get these larger trees into a backyard. . Asked that Code Enforcement keep an eye on tree toppings. This results in a horrible slow death to a tree. . Added that he would like to see big fines imposed for any violations. . Stated that the Planning Commission does a good job. Chair Miller pointed out that PG&E regularly tops trees that interferes with wires and asked if there is any way around that. Mr. James Welsh said that education is the big thing. People should not be planting trees that will grow to interfere with wires. That is a major fire hazard so PG&E has to top those trees. They do a chop job that creates sucker growth in the tree. Commissioner Wong asked Mr. James Welsh if he is a resident of Cupertino and/or does he do a lot of work in Cupertino? He said it is nice to have him here this evening. He asked for feedback on working in Cupertino. Mr. James Welsh: . Stated that City staff has always been very cooperative. . Recounted that on occasion he would tell a client the cost for processing tree removal and that client would say to forget it. A few weeks later he would pass by that client's property and the tree would be down. . Advised that while a big company wouldn't do it without permits the small guy with a pickup and no insurance will do it without permits. . Suggested that fees need to be low enough where people can afford it and they will come in and get the requirements for removals. Commissioner Wong asked Mr. James Welsh if when he takes down a protected tree in Cupertino does the property owner get the permit or does he. Cupertino Planning Commission Minutes of December 12, 2006 Page 32 Mr. James Welsh said that he usually does it. Most of the times property owners don't want to deal with it. His company provides the licensed arborist and takes the report and pictures. Commissioner Wong asked Mr. James Welsh if he could name the five protected tree species off the top of his head. Mr. James Welsh mentioned Oaks and Redwoods. Commissioner Wong said that the City needs to educate the public and tree services on the protected trees. He admitted that he couldn't even remember himself without looking at the list. Director Steve Piasecki pointed out that Mr. James Welsh checks with the jurisdiction each time as it is not just those five species that must be taken into consideration but also landscape plans and street trees. Mr. James Welsh: . Informed that he is licensed in 22 different cities and gets the paperwork for each city. . Said that he does not know what remedy is available for company's that remove trees without a permit but perhaps going after their contractor's license is one option. . Said that some company's make clients get permits themselves. He added that some cities are difficult and some make it simple. Chair Miller closed the Public Hearing for Agenda Item No.4. Commissioner Chien said that he wants to understand the process as it is today before changing it. If an applicant comes in to apply for tree removal is that request approved by the Community Development Director or the Planning Commission? Planner Aki Snelling said that if it is a protected tree that request goes to the Planning Commission unless it is an exempt situation such as a hazardous condition. Commissioner Chien asked why there has been no application that has not been a retroactive tree removal request during his time on the Commission? Planner Aki Snelling said she couldn't answer that question. Director Steve Piasecki said that people are not aware that the trees they remove are protected. When a complaint is called in about an improper removal, staff calls the owner. He added that staff is interested in keeping the Ordinance simple, prescriptive and inexpensive to ensure compliance. It is in the public interest to simplify the process. Commissioner Chien said it appears staff is proposing a more daily management role for staff . Director Steve Piasecki: . Said staff is evaluating an administrative fee for tree removal applications. Cupertino Planning Commission Minutes of December 12, 2006 Page 33 . Added that all heritage trees should come to the Planning Commission. . Reminded that there are not many but just one page of designated heritage trees. . Suggested simplifying process with prescriptive replacement. . Stated the concept of reasonable property rights as something that people expect is legit and should be respected. . Agreed that the current process is not working very well. Commissioner Chien said that the administrative fee would have to be substantial for retroactive permits. Director Steve Piasecki said that would have to be assessed. He said that perhaps it does not have to be substantial but enough to cover the City's cost, which would be substantial enough as a disincentive at perhaps several hundred dollars. Commissioner Chien said it is important to differentiate between those who follow the law and get permits in advance versus the person who comes in after the fact. The penalty needs to be sufficient to discourage retroactive permits. Director Steve Piasecki: . Stated that if there is a penalty process there also has to be a due process. That adds a layer of bureaucracy to this process. The City has to create the law and the due process. . Reminded that some people will simply not know the requirements. . Reiterated the need to develop a process that is reasonable and inexpensive. . Added that it would take approximately $500 to recover cost. . Said that the administrative fee would be used to do an after-the-fact evaluation of an already-removed tree. Commissioner Chien asked Director Steve Piasecki to comment on the City Attorney's recommendation. Director Steve Piasecki said that it is a fairly bureaucratic and costly process for the City to administer. Commissioner Chien said that he does not think that a few hundred dollars is enough to deter people from removing trees prior to getting a permit and said that he wants to focus on the City Attorney's recommendation. Deputy City Attorney Eileen Murray said that she has looked into an Administrative Hearing Process and finds it could be a helpful alternative. She reminded that there are still civil and criminal enforcement options available. Director Steve Piasecki said that the cost has to be considered. It could cost someone several thousand dollars. He said he is concerned about having extraordinary costs in that administrative recovery can get into the thousands. An arborist already costs approximately $1,000. Commissioner Chien asked which species of tree are protected. Cupertino Planning Commission Minutes of December 12, 2006 Page 34 Mr. Barrie Coate, City Arborist: . Said that most cities protect native trees including the native Oak. . Added that there is no simple answer as protected trees are different for every city. . Said that there are several factors to consider including whether the tree is native and if it is an important skyline tree such as Cedar. Commissioner Chien asked if the Redwood tree is native. Mr. Barrie Coate said that the Redwood was native but has not been for many years because many were cut down. Originally, yes, and the Redwood should be included. Commissioner Chien: . Thanked the Chamber of Commerce and the Silicon Valley Realtors for their comments on this issue. . Said that he thinks the City is going in the right direction. . Expressed appreciation that Director Steve Piasecki recognizes that the Ordinance does not work as it is right now. . Said he looks forward to hashing it out. Chair Miller asked Commissioner Chien if there are any specific recommendations that he agrees or disagrees with. Commissioner Chien: . Stated that he does not think that an administrative fee of a couple of hundred dollars will deter residents from removing trees without a permit. . Recommended a higher administrative fee or an Administrative Hearing Process. . Said he is torn about the tree list and is not sure which species should be included. . Added that Director Steve Piasecki has made a good recommendation to wait before adding additional trees to the protected list. . Said that he is not sure that using the size of the tree should be uniform but rather the evaluation needs to be more sophisticated. Commissioner Saadati asked why, if it is not native, does the California pepper tree have its name. Mr. Barrie Coate said that this is the common name. In South Africa, it is called the African Pepper. In Australia, it is called the Australian Pepper. This tree comes from Peru. He added that this is the reason that horticulturalists use the botanical names, which are more specific and accurate. Commissioner Saadati: . Said that he is in agreement with the administrative fee that simplifies the process. . Agreed that more is not better in terms of the trees included on the tree list. . Considered that a hazardous tree removal could be judgmental and this evaluation of danger needs to be validated. . Stated that fees mentioned at $150, $75 and $1,000 seems reasonable. Cupertino Planning Commission Minutes of December 12, 2006 Page 35 . Suggested that slow growing trees versus existing heights might need to be considered. . Said that having no more than five trees on the protected list is easier to follow. Mr. Barrie Coate: . Cautioned that evaluating when a tree is dead must be done carefully. It could be a deciduous tree that has dropped its leaves. . Said that whether a leaning tree is dangerous is something that cannot be evaluated by a homeowner, as there are some things that only an expert can answer. . Stated that in general staff has addressed most issues. Commissioner Giefer asked for further information on the slight increase mentioned by Code Enforcement on the number of tree cutting calls. She asked if that data could be quantified. Mr. Gary Kornahrens, Code Enforcement Officer, said that for the tree cases in 2005 there were four open cases for removals of heritage trees and 43 classified as other. In 2006 there were 12 removals of heritage trees and 39 classified as other. He added that the increase in reporting could perhaps be attributed to more public awareness. Commissioner Giefer: . Thanked everyone for staying this late. . Asked for clarification on pepper trees, which are invasive in Southern California but manageable in Northern California. Mr. Barrie Coate said she is correct. In tropical climates, the Pepper tree is dangerous and illegal to plant in places such as Hawaii. Commissioner Giefer: . Said that a key question is what is the right tree list? What criteria should be used to determine what trees should be on the list? . Added that there are lots of different opinions on that issue. . Stated that she thinks the Pepper is an attractive tree but that native trees are the core of the Tree Ordinance. Native trees make better use of water, are more drought tolerant, are better suited for our climate and produce less pollen. . Said that she does not want to protect Cedars but she does want to protect Oaks, California Buckeye, Big Leaf Maple, Western Sycamore, Coastal Redwoods, Madrones and Bay Laurels. Other than that, she does not really care. . Added that she is okay with thinning Redwoods over time but wants to focus efforts on native trees. . Stated that staff has issues administering some of the existing tree policies. . Said that she needs to understand how people are going to be noticed and how staff is going to be trained to tell an Oak from a Carob tree. . Said that she did not want to see a desk permit inadvertently allow the removal of a heritage Oak. . Pointed out that tags have not been placed on heritage trees yet and that has been part of the existing policy. Cupertino Planning Commission Minutes of December 12, 2006 Page 36 . Questioned what is going to change since execution of the existing policy is not occurring. . Added that if the City does not want to execute a policy it should not have a policy. . Stated that she is only willing to turn over tree review on a probationary period. . Said that she likes the fee structure that's in place today but not the punitive portion. She said that the high Administrative Hearing Process cost is needed to provide the stick. If the lower cost is enacted, it is important that the public come in and takes advantage of that low cost and not come in later and ask for forgiveness. Director Steve Piasecki said that a fee study was done several years ago and found that tree removal cost was in the $2,000 to $3,000 range. He suggested that for retroactive tree removal permits, the property owner pay full price while if they come in prior to removal they can get the discount. This would be an incentive for permits in advance. Commissioner Giefer: . Stated that the penalty needs to be increased. . Said that she is not in favor of sizing trees using the standard size of diameter at breast height. With this faster growing trees have no parity with slower growing trees. . Suggested that if a rear yard tree is protected and removed, she does not care where on the property that tree is located the owner needs a tree removal permit even if it is a nuisance tree. . Stated that there is no difference between front and back yard trees. . Stressed the need for education awareness and that photographs of tree species with close ups of leaf and bark should be prepared to help people identify their tree. . Proposed a new idea. If a tree is removed that requires a replacement, waive the fee if that tree is replaced with a native species. . Added the word "maintaining" to the phrase "purchasing, planting and maintaininq trees." . Suggested adding to Appendix A the requirement for posting rules on the fence as well. . Said that the use of architect, arborist and landscape needs to be cleaned up on the text. . Reiterated the need to focus on native trees. Commissioner Wong: . Said that there are problems in not enforcing the current Tree Ordinance. . Stated that staff is suggesting streamlining the process and making it more prescriptive so that fewer requests have to come before the Planning Commission. Director Steve Piasecki said that staff wants to make it easy and reduce costs (staff level versus Planning Commission). He added that there are about 50 cases a year that could result in more than 40 hours of hearing time before the Planning Commission. Commissioner Wong asked if decisions could be emailed to both Planning Commission and Council. Director Steve Piasecki replied yes. Cupertino Planning Commission Minutes of December 12, 2006 Page 37 Commissioner Wong asked how Director Steve Piasecki could ensure that staff can identify tree species. Director Steve Piasecki replied that those authorized to process tree removals can identify tree species although there have been some mistakes. Commissioner Wong asked how Code Enforcement knows that a tree is protected and/or heritage? Do they defer to Planning? Mr. Gary Kornahrens, Code Enforcement Officer, said that they verify potential violations, taking photographs and come directly to the Community Development Department. He advised that one Code Enforcement Officer got photographs off the Internet and gave copies to all Code Enforcement staff to keep in their vehicles. He added that he is not a tree expert by any means. Commissioner Wong asked who is the tree expert in Planning? Director Steve Piasecki assured the Commission that staff that review trees can identify protected species. It is not highly complicated. Commissioner Wong asked about a tree fund instead of replanting. He said that defeats the purpose and asked why staff is suggesting this. Tree replacement is important. Director Steve Piasecki said that there might not be room on site if the site was over planted originally. Many people over plant trees especially with Redwoods. There are some legitimate reasons to remove trees. Commissioner Wong clarified that the Deputy City Attorney is not advocating the use of an Administrative Hearing Process but simply offering it as an option. Council would have to support this concept before it is undertaken. Deputy City Attorney Eileen Murray said that it is potentially a third vehicle. With this process the penalty goes directly to the City and not to the Court. Commissioner Wong said that the Director is concerned that this is a more cumbersome process and he said that he agrees with Director Steve Piasecki that a streamlined process is better. Director Steve Piasecki said that if there is a gross violation a person could still be taken to court. He stated that common administration is more effective than the formal Administrative Hearing Process. Commissioner Wong agreed and reminded that not everyone knows the five currently protected tree species. He is not comfortable adding any more right now. Commissioner Giefer asked Commissioner Wong if he would be willing to remove and replace some of the existing trees on the list. Commissioner Wong replied that he would not want to go beyond five. Cupertino Planning Commission Minutes of December 12, 2006 Page 38 Director Steve Piasecki said that the Ordinance is about overall public interest. Commissioner Wong said that he agrees with staff that a 10-inch diameter trunk sizing method is easier to implement. He said that tree replacement and penalty is not clear. Director Steve Piasecki said that is not ironed out yet. After all Commissioners speak, he would suggest bringing this matter back to the Commission at a future hearing as that issue is vague right now. Commissioner Wong said that the replacement tree standard from Campbell is easier to understand. He asked what fees are proposed other than the $150 for one tree and $75 for each additional tree. Planner Aki Snelling said that the arborist-consulting fee is a $1,000 deposit. Commissioner Wong asked what fees would be charged for staff-level handing. Planner Aki Snelling replied the same. Director Steve Piasecki said that the fee could be low if done in advance. If retroactive, the fees could range between $2,000 and $3,000 to represent full cost recovery. Commissioner Wong said that Commissioner Giefer's proposal to waive the fee if native replacements are planted is an interesting idea. He said that staff needs to bring stuff back although he had hoped to conclude this matter this evening. Chair Miller: . Agreed that he too had hoped to conclude this issue tonight but so be it. . Said that the strategy to replace removed trees with native is a good one. . Reminded that Mr. James Welsh had suggested that the weight and cost of placing very large trees in a backyard be considered. . Asked if a two-tiered pricing system is necessary so that it is clear to the public that a fee discount and pre-approval are related. . Said that he is not clear if an additional $75 per tree is necessary if handled together. Director Steve Piasecki said that there is extra cost to the City to process multiple trees. Chair Miller: . Said that one method of estimating tree replacement is requiring roughly the same value. . Added that another approach is replacement with a tree that serves the same purpose as the original tree. . Said that he likes the idea of a Tree Management Program to make it easier if a property is over planted to later allow thinning out of trees as necessary. . Pointed out that the City is pretty much built out already and so Tree Management Plans might be needed retroactively to deal with existing situations. Cupertino Planning Commission Minutes of December 12, 2006 Page 39 Director Steve Piasecki said that perhaps over planting standards needs to be defined. Chair Miller asked if all trees in a landscape plan are recorded or only privacy protection trees. Planner Aki Snelling replied privacy protection trees or replacement trees for protected trees. Chair Miller asked for verification that entire landscape plans are not recorded. Planner Aki Snelling replied no. Chair Miller: . Said that it is good that they are not. . Stated that that if the purpose of the tree is privacy it needs to be protected but the owner should have some flexibility. . Added that he supports staff concern about adding to the protected list but if replacing species on the current list is practical he could support it. . Expressed support for creating strategies for increasing native trees. . Pointed to Section 14.18.040 that says that a property owner initiates heritage tree designation. Planner Aki Snelling said that needs to be modified to read the "Planning Commission, by resolution, can approve the tree as heritage." Chair Miller asked if the Planning Commission could initiate designating a tree a heritage tree? Director Steve Piasecki said that it is up to the Planning Commission to discuss the concept but that a process would be needed to back it up. Chair Miller said that this is a property rights issue. He said that it is fine if an owner wants to designate a tree as a heritage tree but not if the City imposes that designation. Commissioner Wong supported the staff recommendation for a 10-inch diameter size. Chair Miller said that it appears that if there is no room on site to plant replacement trees there is no reason to charge an applicant an in lieu fee. Director Steve Piasecki agreed. Chair Miller said that he supports staff coming up with a prescriptive way to handle tree removals at staff level and asked for a motion to continue this item to the first meeting in January. Director Steve Piasecki said that would be too soon and proposed the second meeting in January. Cupertino Planning Commission Minutes of December 12, 2006 Page 40 Motion: Upon motion of Commissioner Giefer, seconded by Commissioner Chien, the Planning Commission CONTINUED TO A DATE CERTAIN (JANUARY 23, 2007) a Municipal Code Amendment (MCA-2006-02) of Chapter 14.28 (Heritage and Specimen Trees). (5-0) Commissioner Wong suggested that the meeting start earlier if the agenda is large. *** OLD BUSINESS There was no old business. NEW BUSINESS There was no new business. REPORT OF THE PLANNING COMMISSION 1. Environmental Review Committee: Chair Miller advised that a meeting would occur on December 13th. 2. Housing Commission: Commissioner Wong said that a meeting would occur on Thursday. 3. Mayor's Monthly Meeting with Commissioners: None 4. Economic Development Committee Meeting: None REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT There was no Director's Report. ADJOURNMENT Chair Miller adjourned the meeting at approximately 12:10 a.m. to the next Regular Planning Commission meeting of January 9,2007, at 6:45 p.m. MINUTES PREPARED AND SUBMITTED BY: Corinne A. Shinn, Minutes Clerk