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101-Draft Minutes 11-13-2012.pdfCITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 CITY OF CUPERTINO PLANNING COMMISSION DRAFT MINUTES 6:45 P.M. November 13, 2012 TUESDAY CUPERTINO COMMUNITY HALL The regular Planning Commission meeting of November 13, 2012 was called to order at 6:45 p.m. in the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA. by Chair Marty Miller. SALUTE TO THE FLAG . ROLL CALL Commissioners present: Chairperson: Marty Miller Vice Chairperson: Don Sun Commissioner: Paul Brophy Commissioner: Winnie Lee Commissioner: Clinton Brownley Staff present: City Planner: Gary Chao Senior Planner: Colin Jung APPROVAL OF MINUTES: 1. Minutes of the October 9, 2012 Planning Commission meeting: MOTION: Motion by Com. Brownley, second by Com. Lee, and unanimously carried 5-0-0, to approve the October 9, 2012 Planning Commission minutes as presented. WRITTEN COMMUNICATIONS: None POSTPONEMENTS/REMOVAL FROM CALENDAR: None CONSENT CALENDAR: None ORAL COMMUNICATIONS: PUBLIC HEARING 2. EXC-2012-01, TR-2012-32 Residential Hillside Exception to allow the construction (EA-2012-06) Craig Steely of a new 3,104 sq. ft. single-family residence on slopes Lot 306, San Jacinto Rd. greater than 30% and to allow a reduced second-story Front setback of 22 feet where 25 feet is required. Tree Removal Permit to allow the removal and replacement of 6 Coast Live Oak trees each exceeding 10” in trunk diameter. Mitigated Negative Declaration. Planning Commission decision final unless appealed. Cupertino Planning Commission November 13, 2012 2 Gary Chao, City Planner, presented the staff report: • Reviewed the application for hillside exception to allow the construction of a new 3,104 sq. ft. single family residence on slopes greater than 30%, and to allow a reduced second-story, front setback of 22 feet where 25 feet is required, and tree removal to allow the removal of six protected Coast Live Oak trees exceeding 10” in diameter, as outlined in the staff report. • He reviewed the slide presentation including the project site, renderings of the residence, street view and northeast elevation. He noted that the residence will have a sod roof, solar panel roof additions and permeable paving as sustainability features that will fit in with the largely natural environment. Staff supports the reduced second story setback because the purpose of the setback is to reduce the visual mass. • Relative to the Coast Live Oak trees, the first proposal was to remove 12 oak trees; since then the applicants have revised the plans, cutting back to six which are within the footprint of the house. The remainder of the oaks would be protected in place, since there is no place to replant the six trees where they would not be in the right of way, and the city arborist determined they would not do well. Staff recommends that the in-lieu tree replacement fee be paid in lieu of the replacement requirement; the applicants are agreeable to paying the in-lieu fee vs. replacing the oaks on the property. ERC reviewed the application project and agreed that the in-lieu fee was a good idea for this particular site because of the lack of locations for tree replacement. • Staff recommends to the Planning Commission adopt the Mitigated Negative Declaration for the project; approving both hillside exceptions for development on steep slopes and reduced second story front setback; and also approving the tree removal permit in accordance with the draft resolution. Com. Brophy: • Referred to the City Geologist’s report which raised the question of whether or not the proposed driveway results in a concrete retaining wall in the development of Lot 307. He asked if the issue had been considered of whether or not the retaining wall for the driveway would block the adjoining lot from being developed. Colin Jung: • Responded that it was one of the first things that came to the attention of the Public Works Department. The 40 foot paper street recorded with the subdivision map, is on a 30% slope and there is no good way to improve it fully and it would have a severe environmental affect to improve it to its full width. At this point the full width is not needed because there are so few lots located there; there is the bifurcation of the driveway itself where the retaining wall is needed to support the road, the driveway above it and the driveway below it which are both in the right-of-way. There is an adjacent lot to the west owned by the Bianchi family; they have been notified and the applicants have shared their plans with them; therefore in the future whenever that point comes when they chose to develop the property they will likely have to come up with a solution to how the access could best be achieved to the adjacent lot. Depending on how the Bianchis determine what the best way to get access to their property is, they will need to come through the improvements that are proposed to be built by the Costas, hence a section of the wall will need to be demolished or they will need to come up through another direction. Condition No. 12 in the EXC resolution asks the applicant to record a covenant on the property in the event that they don’t stay there over the long term; it memorializes that they recognize they are building part improvements in the right-of-way itself and those may need to be removed or modified in order to create access for the adjacent lot. Cupertino Planning Commission November 13, 2012 3 Com. Brophy: • Said that potentially the current or a future Planning Commission could be looking at a hearing in the future where the owners of the adjoining lot wish to develop and will come in and ask that the retaining wall that the Costas needed to build in order to develop their property, be removed. It is more than a reciprocal easement; it is a property owner saying they want to develop their land next to another, and then ask that the property owner knock down the retaining wall they put in. Gary Chao: • Said it did not preclude the possibility of the connection; from an engineering perspective it is feasible; the condition speaks to that as an acknowledgement and is going to be a covenant on the property so that not only do the Costas know but if they sell the property to another person they are buying into that understanding. It is similar to a reciprocal access easement in advance of the adjacent property owner. Chad Mosely, Public Works Dept.: • Clarified that it was a private access road, not a public road and was never accepted by the county when it was first recorded. There are two potential possibilities to provide access to this additional property up there with Bianchis; they could potentially use Carry Queen’s property or the Costas; there are some engineering things that need to be done with that to make it work. With the way the Queen driveway has been built already, access to the Costas residence is somewhat restricted and they have put together this plan to work around the current obstructions that were built for the Queen resident years ago; the gate being one of the obstructions and the way the driveway goes up to the Queen’s residence. There is currently an obstruction that the Costas are working around; the next person will have to deal with not only the Queen obstruction but potential obstruction with the Costas. There are engineering ways to get around that and the Costas have willingly stated they will work with any future potential property owners. Thirdly, there is another paper road that comes up San Juan further to the south that they would have to construct an entire road to get up to their house, but there is also a third option to get up there. Discussion continued regarding the building of a retaining wall wherein staff answered commissioners’ questions. Concern was expressed about the ramifications of building a retaining wall as a short term solution if in the future a new adjacent property owner would request the neighbor remove the retaining wall to allow access for the new development. Com. Brophy: • Referred to Condition 12 wherein it states that the applicant agrees to work with the neighboring property owners to provide access when those properties develop and commented that as a practical matter it was not enforceable. If the new property owner wanted the retaining wall removed by the current owner, the current owner could refuse to do so. Gary Chao: • Said there were access rights assigned to multiple parcels along the way. In the future when the next neighbors come in and ask to exercise their access right, they already have an easement agreement that requires the Costas to allow for access. What Public Works is saying from an engineering prospective it makes no sense for the Costas to pay far beyond their property in order to transition wherever that access is going to be; they don’t know and they don’t want to spend their money. The easement from the legality perspective is already covered; it has already been granted to the next parcel. The current owner has to comply, but there are multiple options; it is up to them to discuss what is the best solution and the most efficient cost effective at the time the house is proposed. Cupertino Planning Commission November 13, 2012 4 Com. Brophy: • Expressed concern that he felt the Costas would have to work around what the previous people built, which may impose a burden on them. To the extent that the solution is to impose the burden on the future developer of the vacant lot, he said it seemed they were going down the path of seeing who they could pass the problem onto. Gary Chao: • Summarized that concerns were being raised by the Commission that they did not want to approve or condition something that would hinder the development of the future property owner or subject them to negotiation. He clarified that the easement is already in place for access, and is already the owner’s right. Staff can take the concern, if that is the direction from the commission, and craft the covenant and the wording, in terms of the acknowledgement from the property owner or even some acknowledgement from the adjacent property owner and confirm that they have reviewed this and fully understand it. Before issuance is approved, the condition requires that the language be reviewed by the city attorney, and work with the applicant to work out language that could potentially clarify that further and have a better understanding disclosure for future property owners. Craig Steeley, Architect; Applicant: • Addressed the street easement and pointed out that the retaining wall being discussed averaged three feet height, and the entire project is predicated on having a minimum amount of excavation on the site, and as seen by the slope of it, it is creating accessibility to the Bianchi’s lot. Pam Costas, property owner: • Addressed the road maintenance agreement. Said they had easements for the utilities, and for the roadway a maintenance agreement between Dr. Queen and themselves; because those are the developed properties on the developed roadway. They also joined the San Juan existing maintenance agreement and road reimbursement agreement for all the roads developed up to that point. She recalled the 2-1/2 years of negotiations, meeting with the Bianchis and interaction with the neighbors relative to options available for gas, electric, water, sewer, etc. and their concerns about development. Worked with the Bianchis because they had to cut through their land and they have an easement for them as well. She said there were many issues to work through to make it favorable for the neighborhood and would allow them to develop. Chair Miller opened the public hearing. Paula Larkin Hutton, San Juan Road: • Said they supported the project, and have been negotiating with Pam Costas on various issues regarding the property. Ms. Costas has worked diligently to address the issues, shared plans of the house, and will be a good neighbor. She said they were still concerned about the trees along the road when the road gets widened; they would like the Oak trees to remain in good shape. Said presently there is a driveway where her son parks his car and the access to that needs to remain as her husband uses that to get to the back part of the property to do maintenance. Chair Miller closed the public hearing. Com. Brophy: • Said he supported approval of the application. Said he feels cautious about what will happen in the future when there is a hearing on San Juan Road. The project is more complicated than some of the others, but given that Ms. Costa has been diligent and working with the neighbors that she purchased Cupertino Planning Commission November 13, 2012 5 the property from, it has kept them in contact afterwards in terms of making arrangements. He said he would like to see clearer language in Condition 12 relative to what might happen in the future because the current language was weak. Although he had no reason to believe that the Bianchis and the Costas would not negotiate in good faith if that becomes the issue, properties do change hands. Gary Chao: • Said a road maintenance and access agreement would address the issue, and staff was not opposed to adding some language to clarify. What was not clarified earlier was that with any easements, in this case a private access or maintenance easement, when there is an improvement being proposed, typically the city would ask that the parties involved confirm that they are okay with the improvements. Staff will do that before they allow construction to commence; because they have no stake, and don’t want to get involved in future disputes, and also to prevent future confusion. The current adjacent property owner would have to discuss it, and prior to the covenant and the improvement implemented, staff would want a written acknowledgement from the adjacent owner saying that they reviewed it and agree. Vice Chair Sun: • Said it was a beautiful design, and he supports the application. The two issues of concern are easement and first floor setback. The easement is a genuine concern of all commissioners; it is not known what will happen in the future, but the two private parties can negotiate the easement. • Relative to the first floor setback, he felt there was a design technical reason for the exception; the proposed project is on the deep slope and it doesn’t matter whether it affects the neighbors or not and he felt it was appropriate. Com. Lee: • Expressed concern about potential future dispute regarding the road, the maintenance and the easement issue; asked staff to review it and make sure that the language is clearer for Item 12. The remainder of the application is appropriate. Com. Brownley: • Said he concurred with colleagues’ comments, the major issue being building on the slope. The design addresses the safety impacts of designing on such a steep slope, and they have granted exceptions for slopes of this degree in previous cases. The proposal is similar and well designed, and meets the test of building on the slope. The front setback is well designed for the purpose of allowing minimal visual impact on neighboring properties. Only six out of the 17 original trees are proposed for removal; access has been addressed. • Said he agreed with Coms. Brophy and Lee, that because properties change hands over time and there may be potential for misunderstandings, it is better that things are more explicit. It would be positive to add some language for future safety. • He said he supported the project. Chair Miller: • Said he agreed with colleagues; pointed out that the design with tiers is minimally invasive to the slope and does the least amount of disruption of the slope itself. From that standpoint it looks like a very good project as well as the fact that they have addressed a lot of other issues. Said relative the issue of the easement and the retaining wall, he had difficulty deciding how much government intrusion there should be in any particular case; he felt it was better to allow the issues to be addressed by the neighbors themselves, particularly if it is a private road; rather than the Commission or city imposing restrictions or a solution. • He encouraged staff to address with the city attorney if there were any legal concerns or what the Cupertino Planning Commission November 13, 2012 6 city’s legal obligations are with respect to the neighbor and future access there. If there are any, appropriate language should be included; and if none, have the neighbors work it out themselves. Com. Brophy: • Suggested approval with additional language to Condition 12, to authorize staff that it should be subject to mutual agreement between the applicant and the adjoining property owner, so that it can be done without having to present it at a second meeting. Gary Chao: • Concurred and added the acknowledgement of the rights for access and future rights. Motion: Motion by Com. Brophy, second by Com. Brownley, and carried 5-0-0, to approve EXC-2012-01, TR-2012-32 and approve the Mitigated Negative Declaration EA-2012-06 with the model resolution, and that the language for Condition 12 be modified as discussed. OLD BUSINESS: None NEW BUSINESS: None REPORT OF THE PLANNING COMMISSION: Environmental Review Committee: Chair Miller reported that the projected being discussed was granted a Negative Declaration. Housing Commission: No Meeting. Mayor’s Monthly Meeting With Commissioners: No meeting Economic Development Committee: No meeting REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: • Written report submitted. Gary Chao noted that the R1 two-story house has been appealed to City Council, December 4th tentative timeframe. There was a brief discussion of upcoming agenda items and potential projects relative to Cupertino. ADJOURNMENT: The meeting was adjourned to the next Planning Commission meeting scheduled for 6:45 p.m. on November 27, 2012. Respectfully Submitted: /s/Elizabeth Ellis Elizabeth Ellis, Recording Secretary