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12. Appeal Krishnapura/Mittal-.:
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L. M~.-.
can of
CUP~f~T1N4
SUMMARY
Agenda Item No. j~.
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
(408) 777-3308
Fax: (408) 777-3333
Community Development
Department
Agenda Date: September 36, 2008
Application: Appeal of Planning Commission decision (no applications)
Applicant: Chia-Ching I~in
Owner: Shesha Krishnapura and Malini Minasandram
Location: 21947 Lindy Lane
Appellants: Seema Mittal & Sarvesh Mahesh
APPLICATION SUMMARY
Consider an appeal of the Planning Commission approval of architectural and site plans
for a proposed 4,499 square-foot, two-story, single-family residence with basement in a
R1-20 zoning district.
RECOMMENDATION
The Council has the options to either:
a) Uphold the Planning Commission s decision (i.e. deny the appeal); or
b) Uphold the appeal; or
c) Uphold the appeal with modifications.
BACKGROUND
On July 22, 2008, the Planning Commission reviewed and approved on a 4-0 vote
{Giefer absent) the architectural and site plans for a proposed 4,499 square-foot, two-
story, single-family residence with basement in a R1-20 zoning district (Exhibit B-1, C-1
& D-1).
The property is within the Lindy Lane area that was rezoned by the City Council in
October 2007. "This is the first new residence that has been reviewed by the City since
the zoning ordinance took effect.
DISCUSSION:
Review Process: The size of the new residence falls below the threshold for discretionary
design review by the City and under normal circumstances such a residence would be
approved with just a building permit. Because of the past history of controversy over
12-1
Appeal of Residential Design Approval for 21947 Lindy Lane September 16, 2008
Page 2
new developments in this area, staff directed the applicant to erect story poles, and staff
mailed notices and plans for the pending development to surrounding property owners
within 300 feet. Because of the Ievel of concern about the project, staff continued to
refine the design with the applicant and try to address neighbor concerns.
Based on the submitted comments and -past controversy over development, the Director
of Community Development elected to refer the plans to the Planning Commission for
review and decision.
Environmental Reviezc~: Staff found the project categorically exempted from the
provisions of the California Environmental Quality Act (CEQA) under CEQA
Guidelines Section 15332: In-Fill Development Projects.
Staff notes that the applicant has commissioned a geologist to conduct necessary
geotecl~-iical investigations for the development of the property that will be reviewed
by the City Geologist at the building permit stage~of development. Such geotechnical
studies and City review were also required of both the upslope and dowrislope
properties during building permit-plan check. The development of these two
residences were also categorically exempted from environmental review.
Appeal:
The adjacent upslope neighbors, Seema Mittal and Sarvesh Mahesh, residing at 21949
Lindy Lane, are appealing the Planning Commission s decision for the following
reasons (Exhibit A-1):
1. The project, as currently proposed, is not compatible with the scale and design of
the other residential uses in the neighborhood.
2. The project will have a severe, adverse impact on my property due to its
uuompatibie mass and scale, resulting in:
a. Significant obstruction to sunlight, daylight and air circulation for the
passive solar design and energy efficiency features, which are an integral
part of the design of my house.
b. Significant, adverse visual impact to the views from all our living spaces
on the first floor and outdoor patio areas.
c. The mass and scale of the structure and very deep excavations, in
combination with its proxu'nity to our property line, may pose a potential
threat to hillside stability, during construction and after completion.
Sta f f Responses to Appeal:
Each of the Appellant's assertions are listed below in boldface, followed by staff's
response in italics.
1. The project, as currently proposed, is not compatible with the scale and design of
the other residential uses in the neighborhood.
~2-22
Appeal of Residential Design Approval for 21947 Lindy Lane September 16, 2008
Page 3
Response: The proposed house is 1,000 square feet smaller than the two abutting residences, but
larger than many of the older residences in the neighborhood. There are a mixture of
architectural styles in the neighborhood. The proposed house was designed to bridge the design
differences between the older, ranch style houses and the varied architecture of more recently
built residences.' Overall, staff believes tlae proposed house creates an acceptable balance between
the older and nezc~er residences in the neighborhood.
The tu~o abutting homes on~ Lindy Lane constructed in 2005-0& have second stories that are 35%
of the fast story, which were the zoning regulations in effect at the tune of their construction.
Tlie proposed house has a proportionally larger second story tluzt is 74.3 % of tl~e first floor,
which is allozc~ed by the recent zoning amendments for this area.
2a. The project will have a severe, adverse impact on my property due to its
incompatible mass and scale, resulting in significant obstruction to sunlight, daylight
and air circulation for the passive solar design and energy efficiency features, which
are an integral part of the design of my house.
Response: Compliance with the R-1 building setbacks and building envelopes is by definition
providing adequate air and light to adjacent residential parcels. The building separations
betzneen the applicant's lot and t)ze upslope tot are generally greater than the minimum building
setbacks zcrith most of the proposed second story wall length being 14 to 17 feet away from the
property line and 27-30 feet away from the upslope residence wall. In reviewing Slieet A-8, the
elevation of the second floor of the proposed residence is below the elevation of the first floor of the
upslope residence. The view from the upslope residence of t11e proposed residence is essentially
that of a recessed'one-story dwelling.
INit11 regard to solar design (as articulated in the R1 zoning ordinance), tJze City may allow
variances to setback and Height to accommodate passive or active solar equipment or house
design, but no such modified structure shall infringe upon adjoining property oulners.
2b. The project will have a severe, adverse impact on my property due fo its
incompatible mass and scale, resulting insignificant, adverse visual impact to the
views from all our living spaces on the first floor'and outdoor patio areas.
Response: The City does not regulate the protection of private property views in hillside areas
(See Cupertino Municipal Code Section 19.40 050(L)). The City would create a very
undesirable precedent to grant an adjacent property owner a right to a view through a neighbor's
property. There are no private view shed easements on the properties.
As the plans are proposed the lwuse occupies a middle elevation that maintains or creates a
second stort'viezi~ for each of the three adjacent lots (upslope, middle (applicant's property), and
doumsiope).
12-3
3
Appeal of Residential Design Approval for 21947 Lindy Lane September 16, 2008
Page 4
2c. The project will have a severe, adverse impact on my property due to its
incompatible mass and scale, resulting in very deep excavations, in.combination with
its proximity to our property line, may pose a potential threat to hillside stability,
duxing construction and after completion.
Response: The type of cut and fill proposed by t)ie applicant is not prohibited by the R1 zoning
ordinance. The applicant is already conducfing the geotechnical investigations to ensure the
creation of a safe and stable building site that will be reviewed by the City Geologist of the
building permit stage of development. The Planning Commission also made geotechnicai review
a mandatory requirement of its design approval of the residence. Both upsIope and downslope
residences have similar retaining walls retaining upsIope soils, so we know it has been done in
this area and tlzey are effective in creating stable building sifes.
Enclosures
Exhibit A-1: Appeal Form and Email
Exhibit B-1: Planning Commission Resolution No. 6522
Exhibit C-1: Planning Commission staff report dated July 22, 2008
Exhibit D-1: Planning Commission July 22, 2008 meeting minutes (draft)
Pxepared by: Colin jung, Senior Planner
Submitted by:
Approved by:
~sI Steve Piasecki
Steve Piasecki David W. app
Director, Community Development City Manager
G:Planni~zg/PDREPORT/CC/2008/21947 Lindy Ln AppeaLdoc
12-~
EACh[blt ~ ~ .~.
-' Cifiy of Cnperf~ino
10300 T©rre Avenue
C U P E RTI t~ ~ Cuper~m4, CA 9501
{40S} 77'7-3223
AP~~~
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AUG 6 20~~
CUPERTIN~ CITY CLERK
1. Application-~ia. •2008 6'c't~ll~ ~•i'~-~U--f ~-~^~S A? Z)~ ~7 u(.~
2. Applicant(s) Name: ~H t~ - G~"A~11~1c~t Ll }~... . 21q~-~-7 ~..)N~ !_.,hl .
3. ~ `APF~us) Narr~e: ~ cJ~'~~~~ ~ IT[-~C~-- `~ ~S~cCUl~~ j`~l}~'~s~'
Address 21 ~1 {k°t Lt ~D`~' {~c1~1~ W ~~Tl ~ ~ °~ Sd t ~
Phone Number '~"~ ~~ = ~"~S'33~' .o~ti~
~~ g.
4. Please check one: ~ .
s ~ Appeal a derision of Director of Community Development
Appeal a decision of Director of Public works
- Appeal a decision of Planni~ Co>~ni.ssion
5. Date of detenninai~on ¢f Director or rilailing of notice of City decision:
~~,> --
SV L O ~ ~ ..
6. Basi§ ,af appeal: ~ 'j~-E.~ G~l TY' .
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Signatare.(s)
~~
Please complete form, include appeal fee of $ l 56.0U pursuant to Resolution No. 07-056
(~ 154.0 for z~.assage application appeals), and return to the attention of the City Clerk,
103Q0 Torre Avenue, Ci>:pertino, (448} 777-3223.
12-5
Page 1 of 1
Colin Jung
From: Grace Schmidt ,
Sent: Thursday, August 14, 2008 8:23 AM
To: Colin Jung
Cc: Traci Caton
Subject: FW: Appeal reason -from 21949 Lindy lane
Importanc e: Fligh
-----Original Message-----
From: seemam@mmcast.net [mailto:seemam@comcast.net]
Sent: Wednesday, August 13, 2008 5:46 PM
To: Grace Schmidt
Cc: seemam@comcast.net; sanresh.mahesh@tavant.com
Subject: Appeal reason-from 21949 Lindy lane
Grace,
Thanks for being patient. I finally found an Internet place here in the wilderness that is working at
SNAIL's PACE!!!
We will be putting together a more detail report later, but in summary the reasons are:
1.The project, as currently proposed, is not compatible with the scale and design of the other residential
uses in the neighborhood
2.The project will have a severe adverse impact on my praperty due to its incompatible mass and scale,
resulting in:
a. Significant obstruction to sunlight, daylight and air circulation for the passive solar design and
energy efficiency features, which are an integral part of the design of my house.
b. Significant adverse visual impact to the views from all our living spaces on the first floor and au#door
patio areas.
c. The mass and scale of the structure and very deep excavations, in combination with its proximity
to our property line, may pose a potential threat to hillside sfability, during construction and after
completion.
Please email Jcall me if you have questions. We return on Sunday. Also I would like to know the final
date of the hearing as soon as it is final and also by when you need the material that will need to be
circulated to the Council members prior to ythe hearing.
Please confirm that you have recieved this mail.
Thanks,
Seema
72-6
9/2/2008
Exhibit B ~ 2
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION N0.6522
OF THE PLANNING COIVIl~~IISSION OF THE CITY OF CUPERTINO APPROVING
A RESIDENTIAL DESIGN PERMIT FOR A NEW 4,499 SQUARE FOOT, 2-STORY SINGLE
FAI~IILY RESIDENCE AT 21947 LINDY LANE
SECTION I: PROTECT DESCRIPTION
Application No.: 2008 Site and Architectural flans for a residence at 21947 Lindy Lane
Applicant: ~ Chia=Ching Lin {Kri~hnapuxa 8~ Minasandram Residence)
Location: 21947 Lindy Lane
SECTION TI: FINDINGS
V'VFiEREAS, public notices have been given in accordance with the1'rocedural Ordinance of
the City of Cupertino, and the Planning Commission has held one -or more public hearings on
this matter; and
V1~HEREAS, the applicant has met the burden of proof required to support said application;
and has satisfied the following requirements:
1. The proposal, at the proposed location, will not be detrimental or injurious to property
or. improvements in the vicinity, anal, will not be detrimental to the public health,
safety, general welfare, or convenience;
2. The proposal is consistent with the purposes of this chapter, the General- Plan, and
zoning ordinance;
3. The proposal will use materials, design elements and simplified building forms that
compliment the existing. and neighboring structures that make it harmonious in scale
and design with the general neighbvrliood; •
- 4. Adverse visual impacts on adjoining properties have been reasonably mitigated in that
the building pad was lowered three feet and the height of the garage was reduced to
reduce the height of the retaining wall and garage wall facing the downslope
residence. The lowered pad height also reduced the perceived height of the proposed
house facing the upslope residence such that the view from~upslope is that of just a
recessed, single-story residence.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony anal other evidence
submitted in this matter, the architectural and site plans are hereby approved subject to the
conditions which are enumerated in this Resolution beginning on page 2 thereof; and
12-7
Resolution No. 6522 2008 Arch. & Site Plans for 21347 Lindy Lane ~ July 22, 2008
Pa e 2
That the subconclusions upon which the findings and conditions specified in this resolution
are based and contained in the public hearing record concerning the residential design
permit for 21947 Lindy Lane set forth in the Minutes of the Planning Commission meeting of
July 22, 2008, and are incorporated by reference as though fully set forth herein.
SECTION III. ~ CONDITIONS ADMINISTERED BY THE COM~IVITJNITY DEVELOPMENT
DEPT.
1. APPROVED PIi.O ECT
Approval is based on plan set titled: "New Residence for Sheshaprasad Krishnapura &
Malini 1~Iinasandram, 21947 Lindy Lane, Cupertino, CA 94043" consisting of 13 sheets
labeled A-0 through._A-B, A1.1, _ C 1,,C-2 and L-1, dated April_ 4, 2008_, except as
amended by the Conditions contained in this Resolution.
Z. NOTICE OF FEES DEDICATIONS RESERVATIONS OR OTHER EXACTIONS
The Conditions of Project Approval set ~foxth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions. Pursuant to
Government Code Section 66020(d) (1), these Conditions constitute wriften notice of a ,
statement of the amount of such fees, and a description of the dedications,
reservations, and othex exactions. You are hereby further notified that the 90-day
approval period in which you may protest these fees, dedications, reservations, and
other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail
to file a protest within this D-day period complying with all of the requirements of
Section 66020, you will be legally barred from later r_ballenging such exactions.
3. GEOTECHNICAL REVIEW
Prior to ,building permit approval, basement, retaining walls, grading and drainage
shall be evaluated and designed by the applicant's geotechnical engineer and
reviewed and approved by,the City Geologist and City.
4.~ GDNS'TRUCTIOhT 1~dIANAGEMENT PLAN _: __ _ _- _ .. _ _ _ . - _. _
- ~ In conjunction with the building permit review, the applicant sham submit a
construction management plan to address staging of construction materials, Loading
and unloading areas and pang for construction vehicles.. The Dixector of
Community Development shall review and approve that plan. .4
5. REPLACEMENT OF DEAD COAST LIVE OAICS
The two dead coast live oaks shall be replaced with two, new 36" box oaks prior to
occupancy.
(. EASTERL~I RETAINING WALL SETBACK
The easterly retaining wall shall be set back eight ($} feet from the side property line in
1'ocations where privacy landscaping is required. -
12-8
Resolutson No. 6522 20Q8 Arch & Site Plans for 21'347 Lindy Lane July 22, 2008
Page 3
PASSED AND ADOPTED this ~ day of July 2008, at a Regular Meeting of the Plaxuvng
Commission of the City of Cupertino, State of California, by the following roll call vote:
AYES: COMMISSIONERS: Chairperson Miller, Brophy, Kaneda, Rose
NOES: COMMISSIONERS: nave '
ABSTAIN: CONIlVIISSIONERS: none
ABSENT:COMMISSIONERS: Vice Chair Giefer
ATTEST:
Js/ Steve Piasecki
Steve Piasecki
Director of Community Development
APPROVED:
Js/ Marty Miller
Marty Miller, Chairperson
Planning Commission
r
a:
G:CupEnt/Planning/Pdreport/Res/2(H38/under R 2008-14, RM 2008-16 res.doc
'12-s
Exhibit C -1
CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014
DEPARTMENT OF COMMUNITY DEVELOPMENT REPORT FORM
Application: no applications (see Discussion, first paragraph} Agenda Date: July 22, 2008
Applicant: Chia-Ching Lin
Property Location: 21947 Lindy Lane, APN 356-25-029
APPLICATION SUMMARY: J
Director's referral of architectural and site plans for a new, two-scary 4,499 square-foot
single-family residence with basement
RECOMMENDATION
No recommendation
PROJECT DATA:
Lot Area: 20,473 square feet
Existing Zoning: R1-20 (Single-Family Residential, minimum lot size 20,000 sq. ft.)
Basement Area: 1;977 sq. ft.
First Floor Area: 2,040 sq. ft. (w/ o garage)
Garage Area: 541 sq. ft.
Second Floor Area: 1,918 sq. ft.
Total Floor Area (w/o basement): 4,499 sq. ft.
Total Floor Area (w/ basement}: 6,476 sq. ft. (basement not countable toward building area)
Maximum Floor Area: 5,500 sq. ft. (not FAR-based, restricted by property covenant)
Floor Area Ratio: 22%
of 2nd Floor to 1St Floor
1St Story Front Setback:
1St Story Side Setbacks:
15t Story Rear Setback:
211d Story Front Setback:
2nd Story Side Setbacks:
2nd Story Rear Setback:
Grading Quantity (cubic yards):
Cuf and fill, basement grading excluded.
On-Site Parking:
BACKGROUND
Proposed Minimum Requixed (Maximum Limit
74.3 % not limited, (but FAR< 45 %)
56'- 4" 20'
9',14'-11" combination of 15', no side less than 5'
80'- 9" 20'
56'- 4" 25'
20'- 4", 32'-6" combination of 25', no side less than 10'
90' 25'
1,268. (2,500)
2 enclosed 2 enclosed
4+ unenclosed 4 unencIosed
The applicant (Chia-Ching Lin) is proposing to construct a 4,499 square-foot, two-story
residence with basement on a 20,473 square foot lot located along the north side of
Lindy Lane. The immediate neighborhood is predominately older, ranch style, one to
12 - 10
Arch. Plans for 21947 Lindy Lane July 22, 2008
Page 2
two story homes. Newer dwellings are all larger, two-story homes with a variety of
architectural styles and building finishes. Most of the homes in this northerly Lindy
Lane. area are on lots of 20,000 square feet or more. The neighborhood has asemi-rural
character without any sidewalks or street lights. .
The neighborhood of homes on the south side of Lindy Lane are also largely, ranch
style, two-story dwellings with a more suburban character because of the regimentation
of 10,000 square foot lots along the toe of the slope and larger lots upslope.
History
The property is Lot 2 (middle Iot) of ~a 1.6-acre, 3-Iot subdivision on Luldy Lane,
commonly known as the "Moxley Property", that was approved by the Planning
Commission on July 9, 2001.
In 2004, the City Council subsequently approved the final map and subdivision
improvement plans. The subdivision created three lots of slightly over 20,000 square
feet each. In that same year, the Planning Commission expressed concern about the size
of the houses that could be built on the three lots, and discussed the possibility of
rezoning the property from its current R1-20 designation to Residential Hillside. In Iieu
of the rezoning, Mr. Moxley agreed to a covenant to limit the size of all structures to
5,500 square feet on each lot.
The three lots were subsequently sold to different property owners. The owners of Lots
1 and 3 (21949 and 21943 Lindy Lane) were issued building permits for roughly 5,500
square foot homes in 2005 before generally more restrictive R1 zoning ordinance
amendments went into effect. ~ Thus, none of the newer homes on Lindy Lane: 21949,
21943 and the adjoining 21951 (building permit issued in 2003) had discretionary single-
family design review because all fell below the planning permit thresholds in effect at
the time. The construction of each house has been controversial with some neighbors.
As a result of site preparation for Lot #2 conducted by the subdivider, five specimen
size oaks were removed from Lot #2 -four approved for removal, one not. The
replacement requirement in the tentative map was one-for-one with the replacement
being a 36" box oak. The five new oaks were planted in 2007 and axe shown on the plan
set.
DISCUSSION
Neighborhood -Concerns .
In May 2008, the applicant erected story poles and staff mailed a notice and plans to
surrounding property owners within a 300 feet radius, notifying them of the pending
residential development. Because of the Ievel of concern about the project, staff
continued to refine the design with the applicant and try to address neighbor concerns.
12 - 11
Arch. Plans for 21947 Lindy Lane
Page 3
July 22, Zoos
Because of the past history of controversy and the enclosed submitted comments
(Exhibit A), the Director elected to refer the plans to the Planning Commission for
review and decision.
Staff has received letters,.emails and telephone calls from nine neighbors with one email
of support. The neighborhood concerns are summarized below:
• Protect redwood trees on property. (Note: There are no redwood trees on this
property)
• Address construction impacts on the neighborhood.
• Relocate house to protect valley views of house on upper lot (Lot #1).
• A stepped foundation would conform better to the slope of the land, rather than,
the cut and fill that creates a flat pad.
• Not fond of stone exterior for the entrance.
• Privacy protection plan should include the front yard to screen views of the
house from the south side of Lindy Lane and Lindy Place.
• Discrepancies in the location of the easterly sideyard retaining wall and the
overall wall height is too tall.
• The proposed house appears to be inconsistent with the letter and intent of the
R1 zoning ordinance, which is to enhance the identity of residential neighbors;
ensure provision of light, air and a reasonable level of privacy; ensure a
reasonable level of compatibility in scale of structures within neighborhoods;
and'reinforce the predominantly low-intensity setting in the community.
• Second floor and balcony shall be consistent with the requirements from the
Residential Hillside (RHS) zoning district.
• Project creates significant and adverse impact to passive solar design and natural-
lighting.
• Project will block views of the valley, and sunrise views (from the first floor)
during certain times of the year.
• Project encroaches into the required one-story building envelope, which is
measured from natural grade, not finished grade.
• The mass of the second story is much larger than the second story mass of the
adjacent residences and is not compatible.
• Retaining walls are proposed Iess~than 5 feet from the property line and
potentially threaten existing support piers for the uphill property.
Please refer to exhibit A for additional details on~the neighbors' concerns.
Neighborhood Compatibility
One of the principal purposes of the R1 Ordinance- is to ensure a reasonable level of
compatibility in scale of structures within a residential neighborhood. This is basically
achieved by having developments adhere to a set of specific development parameters
(i.e., maximum lot coverage, floor area ratio, building heighf, second floor to ground
floor ratio, building setback, building envelope) to curtail development intensity to a
12 - 12
Arch. Plans for 21947 Lindy Lane ~ July 22, 2008
Page 4
level generally accepted by the community. Typically the City has allowed new homes
to be maximized within the approved framework of the R1 Ordinance provided that the
design and the style of the home are consistent and/or compliment the neighborhood.
Building permits were issued in 2005 for the Lof 1 (upslope) and Lot 3 (downslope)
homes. Both owners elected to build up to the maximum, which is 5,500 square feet
and their second-stories were limited to 35% of the first story, which were the zoning
rules in effect at the time of construction. The zoning regulations for this area changed
in November 2007 and the owner of Lot 2 has elected to build a smaller house (4,500
square feet}, set it back from the front driveway; and build a larger second story (74.3
of the first floor), which is allowed by the new zoning amendments.
The applicant has modified the design to eliminate its previously heavy appearance and
to achieve greater neighborhood compatibility between the older, smaller ranch-style
homes and the newer, larger Homes of mostly European and modern architectural
styles. The concrete file roof was changed to a lighter slate or clay file roof. The roof
veneer was removed from the turrets and entrance and limited to just the base of the
house. Thick balcony balustrades were replaced with the thinner iron-steel railings.
The applicant will also be adding fenestrations to the windows to break up overall
window sizes. Overall staff believes ~tlie applicants will be creating an acceptable
balance between the older and newer residences in the neighborhood.
Retaining WaII Height & Location
The applicant has lowered~the building pad three feet to reduce the height of the
retaining wall facing the downslope property to b feet or under. Retaining walls meet
property line setback regulations and will be reviewed, along with the basement and
foundation, by the applicant's geotechnical engineer and the City''s geologist prior to
building permit approval. Lowering the building pad, raises the height of the upslope
retaining wall by three feet, but that wall is not visible to the upslope property owner.
The R-1 ordinance requires retaining walls in excess of five feet.to be screened with
landscaping or faced with decorative materials.
Construction Activities
A construction management plan should be required as part of a building permit
application. Construction activities must meet the City noise ordinance and required
construction hours. The applicant will address this at the hearing.
Li ht and Air Obstruction of Passive Solar House Desi and Obstruction of Views
Compliance with the R-1 building setbacks and building_ envelopes is by definition
providing adequate air and light to adjacent residential parcels. Building separations
between Lot 2 and Lot 1 (upslope) is even generally greater than the minimum building
setbacks with most of the proposed second story wall length 14 to 17 feet away from the
property line and 27-30 feet away from the upslope residence wall. In reviewing Sheet
12-13
Arch. Plans for 21947 Lindy Lane jay ~~ 2ppg
Page 5
A-8, the elevation of the second floor of the proposed residence is below the elevation of
the first floor of the Lot 1 {upslope) residence. The view from the Lot ~. residence is
essentially that of a recessed one-story dwelling.
The solar design aspects of the R1 zoning ordinance have been misinterpreted by the
neighbors (Exhibit B). While the City may allow variances to setback and Height to
accommodate passive or active solar equipment or house design, no such modified
structure shall infringe upon solar easements or adjoining property owners. There are
no solar easements on the properties.
The City does not regulate the protection of views in hillside areas (Exhibit C: CMC '
section 19.40.050(L)). As the plans are proposed the Lot 2 house occupies a middle
elevation that maintains or creates a second story view for each of the three adjacent
lots. There are no viewshed easements on the properties.
Privac.~ection
The project is screened from Lindy Lane by the presence of the mature trees downslope
from the property and the existing house on Lot 3. The project will be required to
adhere to the required privacy protection standards outlined in the R1 Ordinance,
which include screening of second story window and balcony views into adjacent side
and rear yards. Landscape screening was not required for rear yard views because the
rear yard property owner is at a grade elevation above the second floor of the proposed
house. The ordinance allows adjacent property owners to waive or modify those
landscaping requirements in writing in the event that privacy landscaping is not
wanted.
Submitted by: Colin Jung, Senior Planner
Approved by: Steve Piasecki, Director of Community. Developm #
ENCLOSURES
Model Resolution for approval .
Model Resolution for denial (available at hearing)
Exhibit A: Neighbor comments
Exhibit B: Excerpt from solar provisions of R1 Ordinance
Exhibit C: Excexpt from Views and Privacy provisions of RHS Ordinance
Plan Set
H:CuptNt/Planning/Pdreport/pcReports/2007/2007 Arch Plans 21947 Lindy Lane.doc
12 - 14
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO.
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO APPROVING
A RESIDENTIAL DESIGN PERMIT FOR A NEW 4,499 SQUARE FOOT, 2-STORY SINGLE
FAMILY RESIDENCE AT 21947 LINDY LANE
SECTION I: PROTECT DESCRIPTION
Application No.: 2007 residential design permit
Applicant: Chia-Ching Lin (Krishnapura & Minasandram Residence}
Location: 21947 Lindy Lane .
SECTION II: FINDINGS
WHEREAS, public notices have been given in accordance with the Procedural Ordinance of
the City of Cupertino, and the Planning Commission has held one or more public hearings on
this matter; and
WHEREAS, the ~ applicant has met the burden of proof required to support said application;
and has satisfied the following requirements:
1. The proposal, at the proposed location, will not be detrimental or injurious to property
or improvements in the vicinity, and will not be detrimental to the public health,
- safety, general welfare, or convenience; .
2. The proposal is consistent with the purposes of this chapter, the General Plan, and
zoning ordinance; -
3. The proposal will use materials, design elements and simplified building forms that
compliment the existing and neighboring structures;
NOW, THEREFORE, BE TT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter, the architectural and site plans are hereby approved subject to the
conditions which are enumerated i_n this Resolution begitu~ixtg on page 2 thereof; and
That the subconelusions upon which the findings and conditions specified in this resolution
are based and contained in the public hearing record concerning the residential design
permit for 21947 Lindy Lane set forth in the Minutes of the Planning Commission meeting of
July 22, 2008, and are incorporated by reference. as though fully set forth herein.
SECTION III. CONDITIONS ADMINISTERED BY THE CONIlVIUNITY DEVELOPMENT
DEPT.
12 - 15
Resolution No. 5490 ASA-2007-12 November 13, 2007
Page 2
1. APPROVED PROTECT
Approval is based on plan set titled; "The Krishnapura s New Residence/21947 Lindy
Lane/Cupertino, CA 95014" consisting of 13 sheets labeled A-0 through A-8, A1.1., C-
1, C-2 and L-1 dated 4/4/08, except as amended by the Conditions contained in this
Resolution.
2. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions. Pursuant to
Government Code Section 66020(d) (1), these Conditions constitute written notice~of a
statement of the amount of such fees, and a description of the dedications,
reservations, and other exactions. You are hereby further notified that the 90-day
approval period in which you may protest these fees, dedications, reservations, and
other exactions, pursuant to Government Code Section 66020{a), has begun. If you fail
to file a protest within this 90-day period complying with all of the requirements of
Section 66020, you will be legally barred from later challenging such exactions.
3. GEOTECHNICAL REVIEW
Prior to building permit approval, basement, retaining walls, grading and drainage
shall be evaluated arid designed by the applicant's geotechnical engineer and
reviewed and approved by the City Geologist and City.
4. CONSTRUCTION MANAGEMENT PLAN
In conjunction with the building permit review, the applicant shall submit a
construction management plan to address staging of construction materials, loading
and unloading areas and parking for construction vehicles. The Director of
Community Development shall review and approve that plan.
PASSED AND ADOPTED this 22nd day of July 2008, at a Regular Meeting of the Planning
Commission of the City of Cupertino, State of California, by the following xoll call vote:
AYES: COMMISSIONERS:
NOES: COMMISSIONERS:
ABSTAIN: COMMISSIONERS:
ABSENT: COMMISSIONERS:
ATTEST:
APPROVED:
Steve Piasecki Marty Miller, Chairperson
Director of Community Development Planning Commission
G:Cuptnt/planning/Pdreport/Res/2007/2007 Arch & Site Plans for 21947 Lindy Lane approval.doc
12-16
EXH1BlT A
Telephonic Comments from Neighbors concerning development plans for 21947 Lindy
Lane.
1. From Andrew Tan, 21932 Lind~Lane:
He is concerned about the three redwood trees across from his house and does not
want to see them removed. He also does not want any construction to be too
noisy.
2. From Bill Guen~erich 21950 Lindy Lane•
He said the City should use its powers to place house so views from upper lot are
not obstructed.
3. From Sara Arzeno, 21902 Lindy Lane:
She expressed her concerns with future construction impacts on the neighborhood
and said there should be a construction management plan in place.
H: Colin]/word Docs/R-2008-14b.doc
12 - 17
Page 1 of 2
Colin Jung
From: Luciano V. Dalle Ore [Idalleore@gmail.com]
Sent: Wednesday, May 28, 2008 5:22 PM
To: Gity of Cupertino Planning Dept.; Colin Jung
Cc: 'Cristina Dalle Ore'
Subject: Comments on proposed new residence at 21947 Lindy Lane
Dear Mr. Jung
These are our comments regarding the new residence at 21947 Lindy Lane.
1. First of all; we would like to let you know that we are very pleased-with the process of requiring story poles
and neighbors notification. Although this process is more cumbersome and may create initial tensions, if
handled in an appropriate way, it is far~more preferable than to present the community with afait-accompli
which may result in long term resentment between neighbors. As you may understand, given recent
history, a peaceful coexistence is by now of paramount importance for us all.
2. We also understand that the owners have been in conversation with their neighbors.over the long week-
end regarding possible compromises which may result in alterations of the proposed plan. Since we are
extremely supportive of these discussions, we find ourselves in the unenviable position of having to
balance our need to be conciliatory in our approach and feedback with our need to formally record our
issues. As such, we will list them along with our stated desire that these issues be discussed in a
constructive and informat process with the owners rather than through a formal process within City Hall.
3. (We understand this is being addressed) The front of the house does not seem to take into account the fact
that the house is placed on a slope -the cut and fill approach appears to result in nesting a "flat land"
house on the side of the hill, which does not take.advantage of (and actually appears to fight) the
topographical features of the lot, and also requires possibly higher retaining walls than necessary.
4. We are not particularly fond of the stone exterior for the entrance. While we understand and respect the
fact that these are the owner's choices, we would Like to make sure that this has not been an added
requirement by the city which may not necessarily reflect the owner's (or for that matter the neighborhood)
wishes.
5. The privacy protection planting plan drawings are not completely clear. We would like to confirm that there
is a plan to hide the house from the side of the access road and from the residences on the south side of
Lindy Lane and Lindy Place by deploying a screen as close as possible to the road. Given that there is a
generous front.sethack, the owners would still be able to preserve the English style impression of the
entrance once past the privacy screen, while still protecting whatever is left of the rural character of the
north side of Lindy Lane.
6. From the point of view of compromises on size and/or scale, we would have no issues of supporting an
expansion of the house up to 5,500 sq fL and/or increase of height of the two front turrets, as long as
privacy concerns are satisfied through the use of appropriate screening and as Fong as the height and
placement are coordinated with the neighbors.
We really appreciate the effort that you and the rest of the staff are investing in trying to get our community to
~g theT-t t-rtr
Best Regards
Luciano & Cristina Dalle Ore
Luciano V. Dalle Ore J 22101 Lindy Lane J Cupertino, CA 95014 U.S.A. ~ m. +1 (408) 962-4804 ~ h. +1 (408) 257-
12 - 18
S/28/2008
Colin Jung
From: Bob Rodert [brodert@comcast.net]
Sent: Tuesday, May 27, 2008 92:20 PM
To: Colin Jung
Subject: Re: Responses to your questions about the Two-Story Residentiai Permit for 21947 Lindy
Lane: R-2008-14 & RM-2008-16 ~ .
The excellent photograph clarifies everything, Colin. I'd forgotten that
there's a third lot up there. That's going to one cozy hillside when the
Lot 2 house is finished! Thanks for the clarification.
Bob Rodert
21912 Lindy Ln
Cupertino
257-2607
Colin Jung wrote:
> Bob:
> Attached is an aerial photograph of 'the property. You may know it as i~ot # 2 of the
Moxley subdivision, the vacant lot next to the Mittals and across the driveway frown Fxank
Sun. It has story poles on it that should be visible once you walk a ways up the
driveway.
> There are two large oaks at the rear of the property that are unaffected by the
development. There are -also five recently planted oak trees on the lot that was required
mitigation for previous tree removal on the property-- four in the rear along and a fifth
in the front. All should be on the landscape plan. •
> Colin Jung•
> Senior Planner
> City of Cupertino
> 408-777-3257
> «R-2008-14 Vicinity Map.doc»
12 - 19
1
Page 1 of 1
Colin Jung
From: xihua sun [xihuasun@yahoo.com]
Sent: Thursday, May 22, 2008 10:43 PM
To: .Shesha Krishnapura; Colin Jung
Subject: Building design
Hi Colin,
I'in the immediate adjacent neighbor of Mr. Shesha Krishnapura on Lindy Lane. After reviewing his
design, I felt that it confprmed well to the current ordinance. Therefore, we don't have any objections to
the current design. I hope he can have his dream home built as quickly as possible.
Frank Sun
12-20
5/27/2008
Colin Jung May 28, 2,008
Senior Planner ~ - Hardcopy via lvlail.
City of Cupertino - - - - - ~ .
10300 Torre Avenue ~ _ - _ ~ - -
Cupertino, CA 95014 - -. ~ ~ ~ - '
Dear Colin:
I am writing to you regarding the proposed residence at 21947 Lindy Lane. I live adjacent at
21943 Lindy Lane, which is the East neighbor. Unfortunately, I am unable to approve the
proposed drawings as submitted for the following reasons:
1. There are inaccuracies and discrepancies on, the Location of the retaining wall in relation
to the property Line on different pages (there may be other inconsistent depictions, but I
only checked a few dimensions).
2. The height and proximity of the proposed retaining wall is of extreme impact -more than
10 feet as drawn on the front elevation and section and only six feet away from the
property line
3. Privacy regarding the 2nd floor balcony and landscape screening that has been proposed
In reviewing the drawings provided by the city of Cupertino, I found that there are inaccuracies
in the distance between the property line and the proposed retaining wall closest to my property.
It has been represented as six feet on the Topo and Crrading plan, but is reflected as eight or even
ten feet on the Elevations and Section, while the dimensional setback still remains at 14 feet 7/8
inch. Thus, it Looks Like there are different widths of the driveway (area between retaining wall
and garage}. The scale used on the cross-sections and the elevations provides additional distance
depicting more openness between the two properties than what is planned to be built, which is
misleading. Based on the dimensions on the topographical plans, there is six feet between the
property line and the retaining wall, which creates a very tall retaining wall to be in very close
proximity to my property. I have a concern of the location of retaining wall, where it is only six
feet from the property line and thus too close to my property.
The walkway that I have adjacent to the proposed project sits approximately six feet below the
exposed base of the proposed retaining wall. Thus the retaining wall s#arts at a point that is six
feet above the grade of my rear walkway. If we add the six feet starting point, plus the ten feet
retaining wall (that is only 6 feet away from the.property line) plus an additional 25 feet of house-
creates 41 feet of structure that is just 15 feet away from the property line (see the attached
diagram}. With this retaining wall so close to my property, this creates an extreme impact on my
property, where anyone who walks the walkway will have a towering structure above. them and
there will be loss of sunlight along the rear of my house.
_f~ sr~iid
wall with an inset of four feet for another four foot retaining wall, and finally another four feet
inset and then the retaining wall, so that there can be planting and a stepped scale to the vertical
element, not to mention the stepped loading on the walls. -The landscaping that is being used to
12-21
screen the vertical element is an Evergreen Creeper Vine, which at the specified size (per a
landscaper) can take four to eight years to fill in and soften the wall. If cinder-block is used, a
split-face block would .soften the wall and provide attachment for the vines, which would be
preferred to just a cement wall.
The privacy for our properly is at issue, since there is insufficient screening for the house. The
concern is the 2"a floor balcony will over look my backyard. Three 2S-foot high shrubs (which
are not called out on the legend) are proposed as well as two 15-gallon plums, but the proposed
2"a floor balcony of my neighbor sits well above the shrub and the plum and thus they will look
over these plantings and directly into my backyard. Further, in speaking with a landscaper this
shrub typically comes in 15-gallon size and typically start at 4-6 feet tall. The landscaper further
stated that these shrubs grow approximately 1-2 feet a year, which translates into 10 to 20 years
of growth prior to reaching ZS feet. I am open to recommendations on how to alleviate our
privacy issue. .
I met with Shesha regarding these issues and he committed that he would limit the retaining wall
to less than six feet in height, but stated that that he most likely would not be able to move the
retaining wall further away from the property line. Even with a six foot retaining wall, there is
still a significant narrowing affect because of the close proximity of the retaining wall. We
would like to see the retaining wall move further away from the property line and possibly step
the retaining wall to eliminate this crowding/towering affect.
I am willing to work with Shesha. If revised plans address my ail of my concerns satisfactorily, I
will with withdraw my objection and approve the revised plan.
If you have any questions, please feel free to contact me at (408) 828-1210.
Thank you,
Edward Chan
21943 Lindy Lane
12-22
.~.~ ~. ~ -
544 '~ N....:+3 wtiw.~~L~ ~."~_.rn~+.... i._.r ~:~..Y.~.~.. L-... i...-~: ~ ~~._~.'~~.~~'.... m:: .i.. ~..~t.~ ~~'.~ ~ ~ _~~~~tihb~+t
JEFFREY B. HARE
Attorney at Law
A Professional Corporation
501 Stockton Avenue
San Jose California 95126
Tel: 408-279-3555 Fax: 408-279-5$88
Jbhlaw~pacbell.net
May 28, 2008
STEVE PIASECKI
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF CUPERTINO
10300 TORRE AVENUE
CUPERTINO, CA 95014
RE: COMMENTS RE: RESIDENTIAL DESIGN REVIEW
1VIINOR RESIDENTIAL PERMiT FOR 21947 LINDY LANE
R-2008-14 AND RM 2008-16
Dear Mr. Piasecki:
Seema Mittal and Sarvesh Mahesh, owners of the property located at 21949 Lindy
Lane; Cupertino,.haye~retained my law office in connection to the pending application for
a Minor Residential Permit and Residential Design Review for the adjoining property at
21947 Lindy Lane (hereinafter the "Subject Parcel"). Ms. Mittal and Mr. Mahesh oppose
the Application for the reasons set forth herein.
While it is our understanding. that the "decision" to be made on Thursday, May
29, is not a hearing per se, but instead is a staff-level review of the application, we also
understand that it would be appropriate to submit a summary of our issues and concerns
with the project. It is. our hope that a mutually satisfactory solution that satisfies the letter
and intent of the City's ordinances and guidelines can be achieved.
Background
As you are probably aware, my clients purchased the property at 21949 Lindy
Lane in February, 2005, after having conducted a thorough and comprehensive review of
the City of Cupertino zoning regulations, discussions with Staff of the Community
Development Department, as well as a studied review of the improved plans for not only
their site, but the adjacent site which is now the subject of this application for design
review.
Ms. Mittal is a licensed Architect, and she took extraordinary measures to design
her property not only to conform to the City's existing design standards, but also to
12-24
Design Review
May 28, 2008
Page 2
incorporate energy efficient design elements to the maximum extent possible.
Specifically, Ms. Mittal designed the south eastern exposure to maximize use of passive
solar energy for both heating and lighting, as well as created a breezeway design for
natural cooling, and took other steps to significantly reduce overall dependence on the
use of mechanical heating and cooling systems. The completed design also included
elements to take advantage of the wonderful views of the lights of the valley floor, as
well as the sunrises during all times of the year. My clients proceeded with the
construction of their home with the explicit understanding that zoning regulations
implemented on March 1, 2005, imposing a residential hillside overlay on the R1 zoning
district in the hillside area, would limit the size of any structure on the adjoining property
to around 3,500 sq. ft. and placing a 45% cap on the size of the upper floor (around 1,000
sq. ft.}, thus preserving their views and privacy.
On April i 8, 2008, my clients saw the story poles that had been constructed for
the subject parcel, and shortly thereafter, learned for the first time that the City of
Cupertino had adopted Ordinance 07-2011, which amended Chapter 19.28 of the
Municipal Code to relax the restrictions on development within a 15-lot area. The
amendments, it turns out, allowed design plank that were drastically different than the
previously approved plans for the subject parcel. The new design plans include a
doubling of the second story area (from around 1,000 sq. ft. to over 2,500 sq. ft.), and
~add.itional elements that will cause the proposed structure to exceed all reasonable .
parameters of mass and scale for the parcel. These modifications drastically alter the
previouslyapproved design that was the basis of my clients' design. The placement and
orientation of the elevated portions of the proposed structure will effectively defeat the
passive solar design elements incorporated by my clients, and completely obstruct city
light.views from all living spaces, in direct contravention of the purpose and intent of the
Ordinance.
Zoning_Re ations
The proposed development of the subject parcel appears to be inconsistent with
the letter and intent of the City's single-family residential development regulations. As
set forth in Section 19.28.010, the purpose of the Single Family Residential (R1) zones is
to "create, preserve and enhance areas suitable" for development in order to : .
A. Enhance the identity of residential neighborhoods; .
B. Ensure provision of light, air and a reasonable level of privacy ...
C. Ensure a reasonable level of compatibility in scale of structures within
residential neighborhoods;
D..Reinforce the predominantly low-intensity setting in the community.
12-25
Design Review
May 28, 2008
Page 3
Section 19.28.050, which was amended by Ordinance 07-2011 in October, 2007,
expressly identifies the hillside area within which the subject parcel is located, and
provides that any second floor area and balcony "shall be consistent with the .
requirements from the Residential Hillside (RHS) Zoning District (Chapter 19.40). This
Ordinance also provides that the purpose of the RHS zoning district is to regulate
development commensurate with community goals as set forth iri the General Plan, and to
ensure that utilization of land for residential uses is balance with the need to conserve
natural resources and protect life and property from natural hazards. Toward thax
objective, the purpose of the RHS regulations includes the following:
B. Ensure the provision of light and air to individual residential parcels;
C. Ensure a reasonable level of compatibility in scale of structures within
residential neighborhoods;
D. Maintain a special relationship between structures and within neighborhoods;
E. Reinforce the predominantly low-intensity setting of the community; . .
F. Maintain a balance between. residential development and preservation of the
natural hillside setting.
Pursuant to Section 19.40.130, the Director of Community Development is
empowered to make reasonable interpretations of the regulations and provisions of the
RHS Ordinance, "consistent with the legislative intent thereof." (§ 19.40.130). In .
reviewing an application for a Minor Residential Permit, the Director can approve,
conditionally approve, or deny the application. The application can be approved only if
the Director makes all of the following findings:
1. The project is consistent with the Cupertino General Plan, any applicable
specific plans, zoning ordinances and. the purposes of this title.
2. The granting of the permit will not result in a condition that is detrimental or
injurious to property or improvements in the vicinity, and will not be
detrimental to the public health, safety or welfare.
3. The proposed project is harmonious in scale and design with the general
neighborhood.
4. Adverse visual impacts on adjoining properties have been reasonably
mitigated. (§ 19.28.090).
~2-2s
Design Review
May 28, 2008
Page 4 .
Violations of Zoning Ordinance
My clients respectfully submit that the proposed development of the subject
parcel located at 21947 Lindy Lane does not conform with either the letter or the intent of
the above-references provisions of the City's zoning regulations.
1. Proiect creates significant and adverse impact to passive solar design.
Both the Rl and RHS zoning ordinances expressly state that a fundamental
purpose of the respective ordinances is to ensure provision of light and air. As noted
previously, the dwelling at 21949 Lindy Lane was deliberately designed by Ms. Mittal to
maximize the potential for passive solar heating, and to maximize the use of natural
lighting with the southern exposure. The placement of the story poles made it suddenly
apparent that the revised plans for the subject parcel would significantly and adversely
impact these features which were carefully designed in reliance on the previously-
approved plans. Not only will the proposed project significantly reduce my clients'
access to passive solar energy and natural lighting, but their access to views of the lights
of the valley and to views of the sunrises during certain times of the year will be
obliterated. Moreover, the mass depicted by the story poles do not include the elevated,
second-story covered deck.
Here, the Design Guidelines are fairly explicit, stating, in pertinent part, as
follows:
Solar Design. The setback and height restrictions provided in this chapter
may be varied for astructure-utilized. for passive or active solar purposes,
provided that no such structure shall infringe upon solar easements or
adjoinin~property owners. (§19.28.060(>)(Emphasis added).
One need only review the proposed mass and scale of the proposed structure to
see immediately that it would severely impact the passive solar features so carefully and
thoughtfully incorporated in the design of the uphill property by Ms. Mittal.
2. Proiect is not harmonious in scale and design. with the adjoining_yroperties.
There are several indicia of possible violations of the design guidelines that relate
to the overall massing and scale of the proposed structure. For one, the City's ordinance
provides a limitation of a maximum exterior wall height measured from the natural ode
measured at the property line, and atwenty-five degree roof line angle measured from the
ten-foot high line. (§ 19.28.060(G)(2)(a)). As seen in the diagrams distributed to the
neighbors, the building envelope exceeds these restrictions by several feet, in some
instances because the measurements were taken from the finished pad, and not the natural
grade. In addition, the project includes a covered, 500-square foot upper story deck that
adds a significant amount of mass to the second story that is.not depicted by the story
oles.
12 - 27
Design Review
May 2'8, 2008
Page 5
The lower lot (Lot 3) has a 1200 sq. ft. upper story. The upper lot {my clients'
lot) has 1300 sq. ft. of upper story. The proposed project will have a 2,500 sq. ft. upper
story mass (including the covered deck not depicted by the story poles). Because of
previously imposed restrictions, the predominant size of the upper stories were limited to
around 35% of the Iower story mass.
3. Retaining Walls are proposed less than 5 feet from property tine, and
potentiall t~eaten existing support piers for the uphill property.
The proposed drawings depict a series of lightwell retaining walls located less
than 5 feet from the property line - in violation of the mizaimum setback requirements.
Section 19.28.060(F) specif Gaily states that the minimum side setback for a lightwell
retaining wall shall be five feet. Of equal concern to my clients, it is anticipated that the
installation of these retaining walls will require extensive digging and excavation in and
around the area where my clients placed the support piers for their property. Section
19.28.i00(D), which sets forth the required findings for approval of a two-story
residential permit, includes a finding that:
The granting of the permit will not result in a condition that is detrimental or
injurious to property or improvements in the vicinity, and will not be detrimental
to the public health, safety or welfare. {§19.28.104(D)(2)).
Here, the slope of the land approaches a 30% grade. In addition to their concern
over the generous allowance that permits the homeowner the right to grade up to 2,500
cubic yazds on a lot that measures Tess than one-half acre, my clients are extremely
concerned that the trenching and grading necessary to Locate the lightwell retaining walls
this close to their pioperty--poses a serious risk of failure of the hillside integrity.
4. Based on the proposed design. of the project, the Director cannot make all of
the necessary findings required under the Municipal Code.
Section 19.28.090 sets forth the findings that the Director of Community
Development must make -and must make all of them - in order to approve an
application for a Minor Residential Permit. As explained herein, the project is not
consistent with the Cupertino General Plan, the zoning ordinances, and the stated
purposes,of Title 19. Approval of the permit will very likely result in a condition that is
detrimental or injurious to property or improvements on the adjoining lot, and in the
event of major slope failure, could pose a real risk to the public health, safety and
welfare. The project, with its mass and scale, is clearly not harmonious with the other
structures in the neighborhood, especially with a second story that is at least twice the
size of the second story elements of the properties on either side. Furthermore, the
adverse visual impacts, as well as the adverse impacts on the passive solar elements of
the uphill properly, have not been reasonably mitigated.
~2-2s
Design Review
May.28, 2008
Page b
Conclusion
My clients respectfully therefore request that the proposed application be denied
for the reasons set forth herein, and that the project applicants be directed to return with
an application that meets both the letter and intent of the City of Cupertino General Pian
and zoning regulations.
Request for Notice and Copies of Documents
Tn addition, l request that you place my law office on the distribution List for all
notices of any actions related to this matter. Further, I request that I be provided with
copies of any and all letters, a-mails and other documents which have been submitted in
connection with the pending application for the subject parcel.
Respectfully submitted,
Je ey B. Hare
cc: Colin Jung, Senior Planner
Charles Kilian, City Attorney .. ' . .
Clients ~ .
~2-2s
Colin Jun
From: ronberti@comcast. net
Sent: Monday, July 14, 2008 10:00 AM
To: Colin Jung
Subject: 21947 Lindy lane
Hi Colin
I received a letter last week from the Planning Department to the effect that there's a
hearing on 21947 Lindy Lane on July 22nd. (7nfortunately; I will be out of town on that
day.
I assume that this is largely a pro, forma event, that the plans have largely been signed
off and validated as consistent with city policy.
The one question I have is that one agenda item addresses a side facing second story
balcony. I'm curious if the balcony faces southeast or southwest, which is the only
circumstance in which I really care. You may know that this new home will look directly
at mine across the small Lindy Lane valley.
Perhaps we could have a short discussion this week? You can call my cell (408} 515-5111.
Looking forward to hearing from you.
Ron Berti
11406 Lindy Place
1 12-30
x9.2s.o6o
Cupertino -Zoning
5. The perimeter of the basement and all lightwell
retaining walls shall be treated and/or reinforced with the
most effective root barrier measures, as determined by the
Director of Community Development.
G. Height. '
1. Maximum Building Height. The height of any
principal dwelling in an Rl zone shall not exceed twenty-
eight feet, not including fireplace chimneys, antennae or
other appurtenances.
2. Building Envelope {One Story).
a. The maximum exterior wall height and building
height on single-story structures and single-story sections of
two-story structures must fit into a building envelope defined
by:
1. A ten-foot high vertical line from natural grade
measured at the property line;
2. Atwenty-five-degree roof line angle projected
inward at the ten-foot high line referenced in subsection
G(2)(a)(1) of this section.
b. Notwithstanding the building envelope in
subsection G(2}(aj of this section, a gable end of a roof
enclosing an attic space may have a maximum wall height o£
seventeen feet to the peak of the roof as measured from
natural grade, or up to twenty feet with a Minor Residential
Permit.
3. Second Story WaII Heights. Fifty percent of the
total perimeter length of second story walls shall not have
exposed wall heights greater than six feet, and shall have a
m;nirrn,Tri two-foot high overlap of the adjoining first story
roof against the second story wall. The overlap shall be
structural and shall be offset a mittim„m of four feet from
the first story exterior wall plane.
a. The Director of Community Development may
approve an exception to this regulation based on the findings
in Section 19.28. l I0 D.
4. Entry Feature Height. The maximum entry
feature height shall be fourteen feet.
5. ~ Areas Restricted to One Story. The City Council
may prescribe that all buildings within a designated area be
limited to one story in height (not exceeding eighteen feet)
by affixing an "i" designation to the Rl zoning district.
H. Second Story Decks. All new or expanded second
story decks'with views into neighboring residential side or
rear yards shall file for a Minor Residential Permit, subject
to Section 19.28.090, in order to protect the privacy of
adjoining properties. The goal of the permit requirement is
not to require complete visual protection but to address
privacy protection to the greatest extent while still allowing
the construction and use of an outdoor deck. This section
applies to second-story decks, patios, balconies, or any other
similar unenclosed features.
1. A second-story deck or patio may encroach three
feet into the front setback for the principal dwelling.
2005 S-4
feet.
The minimum rear-yard setback shall be twenty
feet.
I. Solar Design. The setback and height restrictions
provided in this chapter may be varied for a structure
utilized for passive or active solar purposes, provided that
no such structure shall infringe upon solar easements or
adjoining property owners. Any solar structure thatrequires
variation from the setback or height restrictions of this
chapter may be allowed ~ only upon issuance of a Minor
Residential Permit subject to Section 19.28.090.
(Ord. 1954, (part), 2005; Ord. 1868, (part), 2001; Ord.
1863, (part), 2000; Ord. 1860, § 1 (part), 2000; Ord. 1834,
(part), 1999: Ord. 1808 (part), 1999; Ord: 1799 § 1, 1998;
Ord. 1784, (part), 1998; Ord. 1637, (part}, 1993; Ord.
1635,. (part), 1993; Ord. 1630, (part), 1993; Ord. 1601,
Exh. A (part), 1992)
19.28.070 Landscape Requirements.
To mitigate privacy impacts and the visual mass and
bulk of new two-story homes .and additions, tree and/or
shrub planting is required. The intent of this section is to
provide substantial screening within three years of the
planting.
A. Applicalidity. This requirement shall apply to ~w
two-story homes, second-story decks, two-story additions;
or modifications to the existing second-story decks or
existing windows on existing two-story homes that increase
privacy impacts on neighboring residents. Skylights,
windows with sills more than five feet above the finished
second floor, windows with permanent, exterior louvers up
to six feet above the finished second floor, and obscured,
non-openable windows are not required to provide privacy
protection plam~ing:
B. Privacy Planting Plan. Proposals for a new two-
story house or a second story addition shaIl be accompanied
by a privacy planting plan which identifies the location,
species and canopy diameter of existing and proposed trees
or shrubs.
1. New trees or shrubs shall be required on the
applicant's property to screen views from second-story
windows. The area where planting is required is bounded by
a thirty-degree angle on each side window jamb. The trees
or shrubs shall be planted prior to issuance of a final
occupancy permit.
a. New tree or shrubs are not required to replace
existing trees or shrubs if an Internationally Certified
Arborist or Licenses Landscape Architect verifies that the
existing treesJshrubs have the characteristics. of privacy
planting species, subject to approval by the Director or
Community Development.
12-31
E~CHIBIT B
2. The minimum side-yard setback shall be fifteen
Ig.~0.0~0
Cupertino - 2~ning
Exi~ibi~ C
feet on lots which are greater than one acre. The setback
shall be measured from the top of bank of the watercourses
or frown existing riparian vegetation, whichever is greater.
The setback from riparian vegetation will be *~~~red from
the drip line perimeter.
I. Developmeut Neaz Prominent ltidgelines.
1. The development of new, independent structures
shat! not di srupt a fifteen percent site line from a prominent
ridge as identified in Appendix A. The fifteen percent. site
line shall be measured from the top of ridge at the closest
point from the structure.
2. Additions to legally existing homes located within
the fifteen percent size line of a prominent ridgeline may not
further encroach into the site Line, e.g., the additionmay not
add height or bulk which may increase the disruption to the -
fifteen percent ridgeline site line.
3. Should these requirements become impractical,
alternatives will be considered through the exception
process. ~ '
7. Development on Slopes of Thirty Percent or
Greater.
1. Site plans for all development proposals shall
include topographical infom~ation at contour intervals not to
exceed ten feet and a horizoatat map scale of one inch
equals two hundred feet or larger. Areas where slopes
exceed thirty. percent shall be identified on the site
development plan.
2. No structure or improvements shall occur on
slopes greater than thirty percent unless an exception is
granted or unless no more than five hundred square feet of
development, including grading and structures, occurs on
an area with a slope greater than thirty percent.
K. Trail Linkages.
1. Among other items required to be identified on
the site plan, the site plan shall identify trail linkages as
shown in the General Plan Trai! Plan. on and adjacent to the
site.
2. If a trail linkage, as shown in the General Plan
Trail Plan, i5 identified across a property being developed,
no development shall take place within that area. except if
approved through the exception process.
L. Views and Privacy. It is not the responsibility of
City Government to ensure the privacy protection of the
building permit applicant or owners of surrounding
properties that may be affected by the structure ender
construction. However, the Director of Community
Development may confer with the building permit applicant
to discuss alternate means of preventing.privacy intrusion
andpreservingviews. (Ord. 1725, {part), 1996; Ord. i65S,
(part), 1395; Ord. 1634, (Part), 1993)
19.40.050 1$uildiing Coeerage, SetbaelLS and Height
~e5trictiomms. -
All~ provisions of this secdoa may be deviated from
upon an exception granted by the Planning Commission in
accordance with Section 19.40.140.
A. Floor Area.
1. a. For lots with less than ten thousand square feet of
net lot area the maximum floor area ratio shall be forty-five
percent of the net Iot area.
Formula: A = 0.45 B
A =Maximum allowable horse size.
B =Net lot area.
b. For Iots with ire than tent thousand square feet
of net lot area the maximum floor area shall br four
thousand five hundred square feet plus 59.59 square feet for
every one thousand square feet over ten thousand square
feet of net lot azea. In all cases the maximum floor area
shall not exceed -six thousand five hundred square feet
without an exception.
Fornm~ala: A=((5-10,1100}/1,000)(§9.59)4,500
A =Maximum allowable house size -
prior to instituting the maximum
6,500 square foot building size.
B' =Net lot area.
2. Lots Within Clustered Subdivisions Containing
Common Open Space. Lots within clustered subdivisions in
which land is reserved as common open space, may count
a proportionate amcsunt of the reserved private open space
for calculating the allowable house size, except that no
developable lot would besubject togreaterthan aforty-five-
percent floor area ratio prior to slope consideration. The
average slope of a lot within a chustered subdivision shall br
calculated on the developable lot. _
3. Slope Adjustment Criteria. For iota with an
average slope greater than ten percent, the allowable floor
area, prior to instituting the maximum six thousand five
hundred square foot allowable building size, shall be
reduced by one and one-half percent for each percent of
slope over ten percent. For lots with an average slope over
thirty percent the aIlo.wable floor area shall be reduced by
a constant thirty percent.
Formula: C = A x (1-(1.5 x (D - 0.1)))
A = :Maximum allowable house size
based on subsection 1 above
prior to instiituting the maximum
6,500 squaze foot building size.
C = Ma~.~tnallowable building for
lots with greater than 10~
average sloes.
D = Average percent slope of net lot
12-32
Cupertino Planning Commission 2
July 22, 2008
Exhibit D -'.1.
Matt Kamkar, rtino resident:
• Addressed the Pla Commssion regarding floor area ratio (FAR} of second to first floor
discussed at the previo Planning Commission meeting, and urged the Commission to
increase the allowable ratio second floor to first floor. He stated that he owned two
properties in Cupertino; one in Ran o Rinconada where he did not do second floor because
of the current rules, resulting in a er roof, bigger foundation, smaller backyard;
everything opposite of the green building pra es that one would like to see. On his Morita
Vista property, he said he would prefer to go to a s rid floor if the rules permitted.
Jennifer Griffin, Rancho Rinconada resident:
• Expressed concern that she felt the current Rl ordinance wa eing piecemealed into
something it was not intended to be, particularly with the floor to area r 'o po#entially going
to l 00% for the second story. She said it maybe better to open the whole rdinance.
• Some lots in Rancho Rinconada are 5,000 sq. ft. or under and there are other areas ' the city
that have very small lots and doing anything more to increase the second story, s up
dangers for the neighbors, It may be better to open the R1 from the hillside ordinance t
floor to area ratio rather than piecemealing this, working on it a little, and then winding up
PUBLIC REARING
2. . n ~nno ~ ~~ v~,r ~nnQ ,~ Director's referral to the Planning Commission the
Chia-Ching Lin; 21947 approval of a Residential Design Review for a new
Lindy Lane - (Krishnapura & 4,491 sq. ft., two-story single family residence with a
Minasandram residence) basement and a Minor Residential Permit for a side
facing second story balcony on the new residence.
Planning Commission decision final unless appealed.
Colin Jung, Senior Planner, presented the staff report:
• Reviewed the Director's referral of architectural and site plans for atwo-story 4,499 square
foot single-family residence on Lindy Lane, as outlined in the staff report.
• He explained that the application was the first proposal under the new ordinance adopted in
November 2007, which is part of the R1 ordinance but applies specifically to the R1-20
zoned properties which are largely located north of Lindy Lane. In that area the City
adopted a set of hillside regulations. .
• He reviewed an aerial view of the property, a three lot subdivision. He pointed out that
based on the R1-20 ordinance, given the size of the project, they did not meet the planning
threshold for a development application; they were not required to do a design review
permit, nor a permit for the second story balcony. Because of staff's concerns with the
architecture, the history of recent controversy in this neighborhood, staff felt it .best to
conduct this review in a manner that was similar to what we normally do in a two-story
home in Rl zoned property. The applicant erected story poles and neighbors within a 300
foot radius were noticed, and provided them with plan sets. There were concerns from the
neighbors about the project as presented and redesigns of the project resulted in a much
better project than originally presented.
• He reviewed the elevations and noted that the applicant had made modifications to the
architecture of the project, creating a lighter, more compatible architectural form to the
12-33
Cupertino Planning Commission
July 22, 2008
existing homes and older homes in the neighborhood. Staff feels that from an architectural
standpoint, the proposed house is' compatible with the residential neighborhood.
He reviewed the neighbors' concerns and the applicant's responses and modifications made
to address the concerns, which are detailed in the staff report.
Staff has not made a recommendation on the project, but if the City Council decides to
approve the site and architectural plan, staff recommends the two highlighted items which
are in the model resolution, the last two items in red are additional items staff would like the
Planning Commission to consider and add to the model resolution,. including replacement of
two mitigation Oalcs that are on the property. The other condition is that the setback of the
easterly retaining wall currently is at 6 feet; they would like to increase it to 8 feet because
staff does not feel that the distance between the wall and drainage swale is wide enough to
accommodate the privacy landscaping that needs to be planted in that location.
Com. Brophy:
• Asked staff to explain the changes made to the zoning ordinance in November 2007.
Colin Jung:
~ Said what was created was a hybrid of Rl zoning regulations and the hillside zoning
regulations. There is a requirement to screen retaining walls; some things are transferred over
like screening of retaining walls, the limitation on solid board fencing around a property;
requirement for open board fencing around the yards of property; there was some regulations
regarding the removal of trees, allowing up to two protected trees to be removed if they are.
under 18 inches if it is within the housing pad; there were some protections put in that if it
was on steeper slopes greater than 30%, then a hillside exception would be required; but the
slope of this property is under that.
• Some of the snore interesting aspects of the ordinance related to the fact that the second floor
of the residence was unlimited in terms of the square footage. There are limits to it, the FAR
limit but that is basically the same; it doesn't say that specifically but is the same principle that
is in the residential hillside ordinance. There are some certain thresholds about review having
to do with if it is on a flat pad and you go through one level of review and if it is not on it, you
cars only build up to 4,500 before you come to the Planning Conunission. The grading
quantity was the same, so it is similar but not exactly; if there is anything that comes up during
the hearing that you specifically want to stress, it would be easier to talk about specificity
rather than generality about the ordinance.
~ Said that both of the homes were built not under the previous iteration, but the iteration before
that; that particular iteration limited the second story to 35% of the fast story, ,which is the
biggest difference. The other difference with the previous iteration was that neither of those
two homes were required to go through any type of public hearing or design review and both
of them were allowed with building permits because that is what the ordinance allowed at the
time. A two-story home that was less than a 35% FAR was allowed with a building permit.
Cam. Brophy:
• The question about the other retaining wall would destabilize the slopes supporting their home;
is there any response to that or is that something that would be taken care of in the
geotechnical study.
Colin Jung:
• Regardless if it is a new permit or a building permit, whenever there is development situations
in the hillside, all that must go to the city geologist; the applicant is required to hire a
geotechnical engineer and they are going to be looking at not only the retaining walls, they are
12-34
Cupertino Planning Commission 4 ~ July 22, 2008
• going to be looking at the basement walls; the grading; the drainage and look at all that stuff.
It has to be reviewed not only by the city geologist, but also by community development staff.
Steve Piasecki:
• Explained that active solar is photo voltaics, where the sun is required to light up the photo
voltaics and generate energy. Passive solar is the orientation of a house; it allows solar to gain
access to the floor, walls, windows, sa that the home can receive the heating.
Com. Kaneda:
• Asked for the reason the 5,500 sq. ft. limited square footage covenant was put in place.
Steve Piaseclti:
• Said that when the three lot subdivision came before the Planning Commission, there were
concerns about house size and the applicant agreed to a restriction to the 5,500 square foot in
lieu of 45% on the 20,000 square foot lots.
• Staff answered Commissioners' questions about landscape mitigation for all three houses,
shared use of storm drains and said the applicant would be required to pay a security depositor
hook into the private storm drain that is in the Lindy Lane driveway.
S. Krishnapura, Applicant:
• Thanked staff for their cooperation in working closely with them on the design.
• All recommendations and comments from Planning staff, and the public feedback which has
deemed to be the right feedback to address; have been fully addressed. Detailed landscape
plan addresses all neighbors' privacy; there are factual errors in the negative impact report
submitted by the 20949 Lindy Lane residents and we request upfront to have a separate time .
for rebuttal of the factual errors in the report.
• He reported that all staff feedback was addressed including mass and bulb changing the roof
to slate; use of mixed pavers in the driveway; reduction of retaining wall height; landscape and
privacy; reduction of the height of the house from 453 feet to 450 feet.
The design meets the ordinance with no exceptions; comprehensive geotechnical review of the
lot finds proposed design and building construction suitable; mass and bulk of the design'is
lowest compared to east and west side neighbors; building location is at the lowest slope
portion of the lot limiting the cut and fill; applicants diligently worked with the senior planners
since Nov. 2007 to design the house.
• All recommendations or comments from Planning staff covered public feedback or addressed
by amendments to the ordinance, the detailed landscape plan addresses all neighbors' privacy.
The neighbor in the front, the neighbor in the back and southwest direction, west north
direction, they all have sent emails to the Planning Dept. supporting the design.
Com. Brophy:
• Asked for a response to the staff suggestion that the setback for the east retaining wall be
increased from 6 to 8 feet in order to accommodate privacy landscaping; and the replacement
of two mitigation Oaks.
Applicant:
• Said he would be willing to increase the setback and replace the two mitigation Oaks as
suggested by staff.
• Said that the basement helps to hold the structure more geotechnically safe than the piers, and
the construction cost of the basement is similar in cost to the piers.
12-35
Cupertino Planning Comrrussion
Chair Miller opened the public hearing.
July 22, 2008
Jeffrey Hare, Attorney representing owners of 21949 Lindy Lane, Lot 1:
• Opposed to the project.
• Said they were present because of the change iri the ordinance. The size and cubic feet and
measurements make for interesting map, but the real issue is when the ordinance was changed,
after the uphill owners built their house, the removal of the restrictions on the second story
allowed for the house on Lot 2 to have a much larger area which immediately affected the
view and blocking the solar access for the passive solar for the uphill property. Focus should
be that the uphill owner specifically went in, reviewed the ordinance, looked carefully at what
was being done, what the upstairs 35% restriction would do, and built the passive solar to take
maximum advantage of what would be in place. When the ordinance changed and allowed for
the larger unrestricted second story, this became apparent when the story poles went up.
~ You are being asked to make a decision with the resolution presented and to make certain
findings without the benefit of a staff recommendation; staff calling this as a case of first
impression under the ordinance, but has not made any recommendations for environmental
review. Under CEQA, this is clearly an unusual circumstance, calling for at least .some
environmental review to look at some of these impacts. The City has asked for further
geotechnical review because of the hillside. Whether or not the project conforms to the RI and
RHS zoning is a matter of some dispute; in any respect we do see that it does have an issue
with respect to the need for environmental review.
The impacts of the project are not just on the view and the passive solar; but as the design
change and configurations are going to go forward, there may be impacts on the hillside as
well. The placement of the retaining wall is just the surface part, but it has to cut into the
bedrock that underlies the uphill property. The uphill property owners are extremely
conceizled with this.
We are here not to object to the building of a house on the second lot, but simply looking at
what you have reaped what you have sown in the removal of a restriction that was put in place
for the very specific reason of protecting some of the beautiful views of the valley floor to
allow for some of these rather ahead of their time, the passive solar that the uphill property
owner designed into the property. We ask that you use your discretion to deny this and send it
back until you have had a chance to get the environmental review.
Steve Piasecki:
• Responded to the attorney's suggestion that more environmental review was needed before a
decision would be reached.
• Said the speaker did not refer to a section of CEQA that would be activated for enviroiunental
review; our reading of the categorical exemptions is that building a single family house is
categorically exempt and does not require additional review.
Chair Miller:
• The uphill neighbor is protected because the house cannot be built unless it passes all the
necessary requirements from the geotechnical standpoint.
Steve Piasecki:
• Said the applicant is protected because they are building the house in conformance, as well as
the downhill; it is good common sense practice. `
12-36-
Cupertino Planning Commission 6 July 22,1008
Jeffrey Hare:
• Said he submitted a letter citing Section 1500.2 does address the issue of the use of the
categorical exemption; there is no mention in the staff report of any categorical exemption, but
the section also provides that an exception to the exemption under that provision if there is
unusual circumstances which is our position here; which is cited in the letter submitted.
Steve Piasecki:
• Said they have not found any unusual circumstances, but Section 1500.303 is new construction
or conversion of small structures, Class 3, specifically says "examples of this exemption
include but are not limited to one single family residence or a second dwelling unit of
residential zone".
Chair Miller:
• Said that reference was made that it doesn't conform to the R1 and the }tHS ordinance, but
that is not relevant here, so I am not sure what we do with that comment because there is a
special ordinance that applies just to 15 properties on this slope, and that is the ordinance we
are required to go by from the standpoint of what we are doing here tonight.
Jeffrey Hare:
• Deferred to the comments in the two letters he submitted to the findings that must be made and
the fact that you must find the level of compatibility with the adjoining properties, the lack of
any impacts on the adjoining properties which we have detailed and the fact that the project as
it is currently proposed, will have these impacts. You must make a finding that there are none
of these in order to fmd compatibility under those ordinances. I think that the findings that are
in the resolution before you, the evidence that will be presented and has been presented so far,
shows that there is these impacts. They can be mitigated; but have not been done so to the
degree that would satisfy us. I think that the fmding of that, the evidence will show that a
finding of no impacts on the adjoining property, no impacts on the passive solar, or any
impacts of that nature, are not supported here. With all due respect, that is the finding. I
summarised that in my letter to you dated yesterday (July 21).
• We would ask that you consider this because I think there is a solution here; we think that the
original ordinance was designed to limit the upper story on these hillside areas fox good
reason; and we would like to see the opportunity for this to work out for everyone's benefit, to
allow them to have a beautiful home on Lot 2 and to not create a situation with the larger
upper story that creates a blockage of passive solar and the views.
S. Raghvendra, Cupertino resident:
~ In support of the project.
• Said that staff has held the applicants to a higher standard than required by the City laws; and
made them go above and beyond by erecting the story poles, by having them take down a
number of elements the architect suggested. The applicants did so because they wanted to
.make it a smooth process in meeting the rules of the city. This should give them a green light
on the topic.
• Summarized that the applicant has followed alI the rules set forth by the City and should be
given ascent without further delay.
Tej Kohli, Cupertino resident:
~ Opposed to the project.
• Said they were a neighborhood, but he felt that it was presently just the `hood'; taking the
`neighbor' ou#, which he felt is wrong. Mitigations exist to the problem, the Planning
Commission and Mayor's office is both the executive and the legislature; we don't want to
12-37
Cupertino Planning Commission
July 22, 2008
bring in the judiciary, we want to fix it as neighbors.
The City being the executive and legislator, should be responsible for responsible zoning.
Why would 15 residents of Cupertino that are hillside get a special zone? It is a separate issue;
but the attorney brought up the point that if it changed midstream, it is an issue. .
Why do we call them hillsides? The reason we call them hillsides is that the law of gravity
does not change; that's what makes it a hillside and if the law of gravity doesn't change, how
can zoning change if gravity hasn't changed? It is on a 29% slope; to the common eye, it
looks unbuildable, and if you carve that much of a hill out, 2500 cubic yards. In comparison,
the potting soil bags from the Home Depot, that is one cubic foot, some bags have two cubic
feet, and we are talking 58,000 cubic feet that are going to be taken out of the hill to make
room for the house.
The house has a 2,000 square foot basement, 2,000 square foot first floor and 2,000 square
foot second floor; it is not a house, it is a box. That is where the Rl upper story going to 35%
is important, because you don't want the houses to be towers. A walk up that slope and look at
the property is very important before any decision is made, and would request that the
Planning Commission at least do that before making a decision.
Said he would vote to put sunshine back in this neighborhood.
Sarvesh Mahesh, 21949 Lindy Lane:
• Opposes the project. _
• Said they moved into their,home one year ago, and when they designed and built their home,
the lot next door was an RHS property and the maximum allowable upstairs was 1,100 square
feet. Since then the law changed and the special 15 houses have the privilege of designing
under a different consideration that the fee used for designing their house. While it increases
the value of the other 14 homes, it seriously jeopardizes our safety and quality of living. The
negative geological impacts; there is loss of privacy; views; quality of life; passive solar and
properly value.
~ The massive scale isn't compatible; the current design creates a. big hole next to our house;
five feet from our property line, it creates a two story deep basement; and it requires an 80 foot
retaining wall which is between i 0 and 12 feet high at different points. AIl of this is 1,000 feet
away from the Monta Vista fault at a very steep 29% grade, which creates a high risk for
landslides and earthquakes. Who indemnifies that risk? Between. the two houses, if the
second house was built the way it is proposed, there is going to be a thin sliver off the hill
there; if there were rains, we might be neighbors too close for comfort. Who says we cannot
move mountains? We definitely tried to move a hill here: It is 75 truckloads that we are going
to be taking away from a little hillside, and hopefully will put it somewhere where somebody
has some use for it. Relative to the mass and scale of the upper story. The privacy; our living
room is going to be looking into one of the bedrooms of the proposed house.
Seema Raghvendra:
• Said as an architect she has learned there always lies a good solution with any problem; the
best way to look at it is there are many options they can make to the adjustments to the design
to mitigate their concerns. She referred to the upper story mass of the current home and said
some of the things they could do is to reduce grading to reduce the height of retaining walls to
center the house more parallel to the contours which is very fundamental hillside design; rotate
it at farst; now it is parallel to the contours and it is moved away from their property line; the
big huge retaining wall has now moved away and there is the opportunity to split it into two
separate walls which may be 4 feet and 4 feet.
~ There is so much excessive grading in the front; to set back the home, I know it is a great idea
but we could possibly move it forward and reduce a significant amount of grading (included in
her report) and also at the back of the property where the house is extending and where the
12-38
Cupertino Planning Commission
July 22, 2008 -~
yard is, it is steep. It would be good to protect that part and have the backyard pulled forward.
These are comparative slides, ways to adjust the fagade.
Com. Brophy:
• Asked if she had conversations with the owners of Lot 2 during the process.
Seema Raghvendra:
• Said she initially met with the owners of Lot 2 in 2005; there was an approved design on that
lot for a bigger home; they contacted her and asked if she was willing to take the design and
make some changes for them and submit it by the first March 2005 deadline which was before
the hillside overlay would come into play.
• Two of the items they wanted to change was to push the building back as in the current design;
and they wanted to have really steep roofs. She brought to their attention not to make the roofs
any steeper because the whole house was designed where they could see over it. They backed
out from the deal, and decided to withdraw because she did not have time to change the design
in 2 weeks. She recommended they return to the original architect and have him make the
modifications, but they were aware that they were so sensitive about their views.
• They met again on the lot before the May 29`h; and she submitted her objections because it was
official-.
There was a discussion about passive solar in relation to the applicant's home.
Matangi Darjamani, Cupertino resident:
• Said she believed everyone had the right to build their dream home, especially when a house is
built in the hills of Cupertino, the responsibility that comes with that right, is building
responsibly on the hillside and with concera for the existing homes. The Mittal's home is a
green home, with solar panels, concrete floors with radiant heating and it has the strategically
placed windows to garner the power of the sun and wind. The family room kitchen is a
complete wall of windows which illuminates and warms the home. In front of the beautiful
walls of windows are the walls where the new home is going to came up. If the plans are
approved, the Mittals will lose the view they cherish. The new home is probably designed to
take in the views also because that is there right; however, is it not their responsibility to share
that right with their neighbors, the ones who have been enjoying the view all along. Now
when they take away the Mittals access to the sun, there goes their passive solar dream home. I
feel that a city that touts green building and claims that it is one of their priorities should
protect homeowners who have taken their advice. It is the right of the City to encourage the
residents to build green and along with that right, I think the City has the responsibility to
protect. those homeowners who have done what the City wants them to do. I think this is
especially important in a case such as this where access to sunlight is the key part of the design
of the existing home.
• The R1 ordinance states that its purpose is to ensure the provision of light, air and a reasonable
level of privacy to individual residential parcels. Though the proposed home not only
mitigates the air and the light, it will be built with windows that will look directly into the
family room and the family room is the heart of the home. Traditionally what the City does is
_ they ask that you plant trees and privacy screening; these are tall homes, and is it fair to ask the
Mittals to wait 10 years for privacy or is it more reasonable to ask that some design changes be
made so that it is truly in compliance, not only with the quantitative aspects of the R1, but also
with the qualitative aspects of Rl, specifically with respect to light, aix and privacy.
~ Encouraged the new owners to work with their neighbors to reach a compromise where
everyone can enjoy the homes of their dreams.
12-39
Cupertino Planning Commission
July 22, 2008
Nitu Ko61i, Cupertino resident: '
• Said she wanted to voice her opinion on the impact the project is going to have on the future of
Cupertino hills and the way that premium properties will be sold in the future in Cupertino.
• Said she was familiar with the two lots; and recalled when the applicants were looking for
prpperiy in the hills with views and the correct orientation . so they could build their green
home. They also wanted to be part of the neighborhood and the prestigious community with
excellent schools. They looked at all available buildable lots with views in the area; and even
looked at the lot in question, Lot 2; but they decided to pay more for their lot which had a
naturally existing pad; the second lot does not have a naturally building pad. After consulting
with experts, it was concluded that the lot is a beautiful one-half acre lot, with very steep
slopes and lacks any natural buildable pad.' It can always be engineered with extensive
retaining walls which would be extremely costly. She said she was taken aback by what the
story poles show; and has since looked at the plans and she concluded that the story poles
don't tel I half the story.
• Due to the change in zoning, there is going to be a huge house built on this lot; Mahesh and the
Mittals stand to lose their views; the story poles are for neighbors to voice their reactions but
'the ,city has to enforce some rules to safeguard the privacy and views of the existing
homeowners. I have not seen a precedent like this in any of our neighboring cities like
.Saratoga, Los Altos Hills, etc. and my colleagues feel the same way. People buy homes not
only for schools, but for locations, views, orientations and sunlight.
• The city has a responsibility to be green and to protect these via the zoning code. If this
project is approved as indicated by the story poles, she said she would feel obligated to advise
potential buyers that the City of Cupertino really does not care about adverse impacts on
adjoining properties and the quality of their properties will never be secure. They are losing a
view lot. .
` • Requested the Planning Commissioners walk up the hill to look at what is going on there; they
have a beautiful house and have a right to build, but it should comply with the rules, and yet
they should come to a mutual agreement on that.
Kevin Lee, friend of a Cupertino resident: -
• Opposes the project. .
• Express personal view, not professional.
• Questioned why the proposed home had to be built directly in front of the existing home
where it blocks all its views, where'if the land is large enough it could be moved somewhere
else. They could enjoy the view of the liillside, yet not destroy someone else's view at the
same time.
• Said he has spent time at the existing home and enjoyed the view of the hills, and if the
proposed home is built, they will not have the same enjoyment. It is an important part of their
social life, and is important to understand people's personal views and perspective on life.
Ankur Mahesh, Son of Seema Raghvendra: _
• Said that his favorite place in his home is the family room where he enjoys the view which
. will have lost its charm if the proposed home is built as shown by the story poles. Their home
is a green home with solar panels that. keep the home warm in the winter and cool in the
summer. If the panels are blocked the heater and air conditioner will have to be utilized and
will bring dust into the home, causing allergies. He said his school teaches saving energy
because of the global energy crisis; but if the proposed house is built as shown, they will not
be able to even store .energy. during the winter. There is another way to build a house so
everyone is happy; I am sure bf it because it is such a big home.
• He urged the neighbors and Planning Commission to consider his concerns and find a good
effective answer for all.
12 - 40
Cupertino Planning Commission 10 July 22, 2008
Ana Varshneya, Capertino resident:
• 8`f' grade student, friend of Ankur Mahesh, said she visits the home of her friend frequently
and is interested in how the home is designed so that it is green and conserves energy.
• Said she aspired to be an architect and have homes that are good for the community and the
enviromnent.
• She said she knew that the Planning Commission would make the decision on the fate of her
friend's home and said she hoped it did not have to lose any of its special and unique features.
Matt Kamlcar, {Not presentlwritten comments read}:
• Supported the project.
• The applicant did not change the rules (zoning rules); he is just abiding by them. . .
• He has compromised in that he did not push his plans to the limits, even though he could have.
He is considerate of his neighbors.
Chair Miller closed the public hearing.
Com. Kaneda:
• Asked if the comment made was correct that according to the previous ordinance, the second
floor of this would have had to be 1,100 square feet.
Steve Piasecki:
The revised ordinance was a result of a very extensive process working with the
neighborhood; many of the ideas came out of the neighborhood; one of those was that if we
are going to treat this like a hillside area, perhaps we should give them the same flexibility that
other hillside homes have in the RHS district where they are not restricted by the 45%; they
are allowed to have a larger second floor with the rationale that you have a smaller footprint of
the building overall. You don't force the first floor to get bigger than it may need to be
otherwise. That was a conscious decision that grew out of the neighborhood process; it was
very .extensive and took a long tune. Typically even in the valley floor, you are allowed to
have 45% second floor to first floor ratio; even that is being discussed as was brought up under
Oral Communications.
Cam. Brophy:
• Asked how consistent the City has been in the past regarding blocking views of existing
homes, which is the fundamental issue.
Colin Jung:
• The city has decided not to get involved in this on the basis of this one example, that the city
has written in its own ordinances that we are not responsible for the views from properties. I
want to caution you about this; but I think it would set a bad precedent if you grant a property
owner a right to have a view through someone else's property; unless there was. a view
easement through that property that would allow them to have that. It is not to say that the
City hasn't had developments, where it was a Planned Development zoning where atl the
homes were built at the same time where the grading and the home construction was done to
make sure that each home had its own view, but it wasn't three different homeowners building
homes based on a different set of regulations, based on a different timeframe, but was done al]
at the same time with that specific aspect kept in mind.
12 - 41
Cupertino Planning Corrimission 1 I July 22, 2008
Chair Miller:
• Relative to grading, going.baclc a number of years, before anything was done with that hillside,
it was just one steep slope from top to bottom, and one of the speakers mentioned that there
was a natural pad at the top. It may have been graded at some point; either just prior to the
subdivision or immediately afterwards. Is there any recollection of that?
Colin Jung: '
• Said that the area was developed in the County many years ago; and one of the things that we
learn each, time lots get subdivided or homes get built up there, there is a lot of unengineered
fill on a lot of those properties. People have pushing dirt around there for decades; those pads
were set at soiree point, probably without the proper permitting authority.
Chair Miller (to applicant):
• Said that the uphill neighbor suggested rotating your house and sliding it forward; have you
considered that as an alternative?
Applicant:
• Moving the house is going to have a much more deeper towering effect on my lowest side of
the house; moving the house forward is going to move more dirt out of the particular lot, it will
not~help in any way. The third point is .that the second floor view of the upper neighbor is not
at all affected in any way because the top of the roof is at 450; the finished floor of the second
floor is at 453 of the upper neighbor, so its about 3 feet above the roofline, It would not affect
the view from the existing house.
Corn. Kaneda:
• The big issue is the. views, and as we have heard, the City doesn't protect views. The height of
this building compared to the other buildings and what it blocks; if you look at the one section
that shows the three homes; the home furthest down the slope blocks the ground floor view of
this Koine; this home will block the ground floor view of the home above. The home that is
furthest down the slope does not block the second floor view of the home above.
• He said the unfortunate problem is that the home at the top of the slope is designed to take
advantage of the views from the ground floor, and he felt that is where the problem is.
• Relative to solar access, he suggested rotating it slightly, but push it north, not south. The
further north you get the building, the better winter solar access you will give the other house;
it gets steeper to the north and is problematic to do that.
• The. home could be much bigger; it is 1,000 square feet smaller than it could be. He said he
was concerned about the depth of the cut into the hill for the basement.
Com. Brophy:
• Said he was concerned about the height of the building, and was open to being convinced. The
applicant has attempted to deal with the objections of the neighbors; he said he was presently
inclined to support approval with the additional clauses that staff recommended at the
beginning of the meeting.
Corn. Rose: .
• Said that everyone was feeling some of the struggles on both sides of the property line; on one
hand it is a wonderful experience to have found a lot to be able to build such a big house on;
on the other hand, she felt for the existing neighbor who also just finished doing the same
thing. She said she was optimistic that the applicant would have some good ideas on how to
make it work out after hearing the honest input from the speakers. The house conforms to the
ordinance as it stands today; there doesn't appear to be any place that allows them to change or
12-42
Cupertino Planning Commission 12 7uly 22, 2008
mandate any change to the proposed structure, other than reducing the height slightly, but she
did not see any way to make that happen.
Said she agreed with Coms. Kaneda and Brophy; but was not knowledgeable enough about the.
grading process and would rely on the city's geologist report and assumed that the information
from that would be considered as they decide to move forward. Her wish was that it could
work out for everybody, as they both have the right to have their dream homes.
Chair Miller:
• The issues go back further than just what is happening tonight; when the subdivision was done
it was probably too aggressive a subdivision and perhaps two houses might have fit better on
this property than three. Unfortunately, we don't have the luxury of doing that now, there are
three lots, each one of these owners has the right to develop their property and when we look
at the ordinance, if it was under the Rl or under the RHS, we might be coming up with a
different result, but it's not under either one of those ordinances; it has its own special
ordinance.
• Some people feel unfairly put upon because of the current ordinance; however, that ordinance
was put in place because other people felt unfairly put upon and that was a compromise with a
larger group of neighbors; it is difficult to make everyone feel comfortable and. reach some
compromise that works for everyone, and we wish we could. In this case, it hasn't happened;
those 15 neighbors in general were unhappy with That ordinance .that governs their
development there, and they fought against it. Some speakers said they got the benefits from
that ordinance, but in fact, they didn't feel that way, and they opposed it and they lost out at
the City Council Ievel. Here at the Planning Commission level, we did not support the current
ordinance that govems those 15 lots; we opposed it; but the City Council chose. to take a
different direction and they approved what is in place now and at this level our job is to adhere
to the rules and to the ordinance. As everyone has said, the current proposal meets in every
way the ordinance that is in place now and in a number of ways, is unlike some applications
that we see, is actually coming in Iess than the maximum requirements and the big one is the
5,500 square foot above ground requirement, which this applicant is coming in at only 4,500
square feet and the other two neighbors are already 5,500, which puts their mass at a higher
level than this house.
~ Relative to grading, it is hard to see that it's one slope, that this house is taking out snore dirt
than the others did; in fact the others probably took out at some time more dirt just because
they have a larger footprint on the first floor.
Said he was sensitive about the solar issue; however, it does seem like the neighbor with his
expertise, has done an excellent job in designing a house that requires. minimal energy. The
wall discussed is mostly the eastern wall and his understanding of solar is the southern
exposure is the most important one; the western is the second most important one; and the
easterly is the least important; the north does not count at all. It doesn't seem like the solar, if
there was any blockage at all to the solar aspects of it; it will be minimal in terms of the energy
savings that the neighbor is going to benefit from. The house does not have the overhang that
protects the windowed area when the sun is high in the sky during summer; it seems for a
number of reasons that the passive solar issues that were raised here tonight, don't seem to be
as important as some of the other issues.
As the other Commissioners stated, the most importanf issue to the uphill neighbors is the
view, and Cupertino does not have a position on views and does not protect views and it would
be a mistake for us to set a precedent to do so here tonight.
>*or those reasons I support the application with the provisos that the screening of privacy of
the two adjoining neighbors is done appropriately.
The other issue is water runoff both from the top lot and middle lot to make sure they both tie
into the storm drain system, sa we don't exacerbate the situation in terms of runoff.
12 - 43
Cupertino Planning Commission 13 July 22, 2008
Motion; Motion by Corn. Brophy, second by Com. Kaneda, to approve the ~ draft
resolution, adding to it Clause 5: the replacement of the two mitigation Oaks, and
Clause 6: to increase the setback of the east retaining wall from 6 to 8 feet in
order to accommodate a suitable privacy landscape screening. (Vote: 4-0-0; Com.
Giefer absent)
the meeting, the agenda was moved to Item 4, New Business.
4. Briefin on Housing Element update process and selection of a Planning Commission
member attend stakeholder meetings. .
Steve Piasecki;
• Said that the Hour Element update process had been kicked off and Bay Area Economics
held 24 interviews wi potential interested stakeholders.
Paul Penninger, Bay Area Ec nomics (BAE}:
• Provided an overview of wha the housing element process entailed. Asked one commissioner
to attend three focus group sess~ ns conducted over the next two to three months.
• The housing element is one of se n General Plan elements required by the State; a primary
document used by local jurisdiction to identify housing needs and to ascertain where new
housing should go. It tends to be updat every 5 to 7 years by law, although in California it is
on a 7 to 9 year cycle. The current housi element planning period is from 2007 to 2014; the
State does not require the housing elemen to be approved and submitted until June 2009.
The housing element contains a needs assess nt, constraints analysis, goals and policies and
an inventory of sites for new development. I also includes a plan to accommodate new
housing. The essential process is that BAE goes ough a process of identifying, sites where
new residential development could take place; idenh ing the housing needs; whether or not
they are significant rehabilitation needs; are there ne for senior housing, for emancipated
foster youth, people with disabilities; laying out a progra factions that form the plan. It is
presented to the Planning Commission for approval and t the City Council. When it is
approved, it is presented to the State Department of Housing nd Community Development
(HCD) for certification. If certified, it certifies that it is in comp 'ance with State law; when
done, it removes the city from any risk of being sued by an outsi party that may want to
pursue some development proposal or have some other advocacy age a in mind. Having a
certified housing element, beyond allowing you the opportunity of havi a frank discussion
of what your housing needs are, is a way for the you to position the city to c ete for certain
types of housing and transportation infrastructure funds and also it avoids e potential of
future litigation. There is no automatic regulatory process at the State level ere HCD is
going to come iri and force you to have a certified housing element; they can on deny you
certification based on their reading of the law and thus expose the city to a certain inimal
threat of litigation.
Given that we know there are a lot of concerns about development in Cupertino, an in
particular there are concerns about maintaining the city's quality of life about schools, park
open space, the impact of new housing developments could have for good or bad of the city's
future, what we are doing with this time around with the housing element update process, is a
12-44
NEW RESIDENCE
FOR
SHESHAPRASAD KRISHNAPURA
& MALINI MINASANDRAM
21947 L~ NDY LANE
CUPERTINO, CA 94043
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SCOPE OF WORK:
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RESIDENCE W/ BASEMENT
INDEX
A-0 SITE PLAN
C-1 TOPOGRAPHIC PLAN
C-2 DRAINAGE ~ GRADING PLAN
L-1 LANDSCAPE ~ PRNACY PROTECTION
A-1 FIRST FLOOR PLAN
A•1.1 BASEMENT PLAN
A-2 SECOND FLOOR PLAN
A-3 ROOF PLAN
A-4 ELEVATIONS
A-5 ELEVATIONS
A-6 SECTIONS
A-7 SECTIONS
A-8 ELEVATION SECTION
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BUILDING DATA
APN: 356-25.029
ZONE: R-1 (ORDINANCE: 07.2011)
GROUP OF OCCUPANCY: R-3/U-1
TYPE OF CONSTRUCTION: VB
STORIES: 2 WITH BASEMENT
LOT AREA: 20473
BASEMENT: 1976.64 SQ. FT.
1ST FLOOR AREA: 2040.33 SQ. FT (W/0 GARAGE
GARAGE AREA: 540.75 SQ. FT
2ND FLOOR AREA: 1918.43 SQ. FT.
TOTAL FLOOR AREA: 4499.51 SQ. FT. (91 JO BASEMENT
TOTAL FLOOR AREA: 6476.15 SQ. FT. (W BASEMENT)
California Fire Code
Celiforata Building Code
California Mechanical Code
California Plumbing Code
California Electric Code
Energy Effidency Standards
2007 Editiaa
2007 Edition
2007 Edition
2007 Edition
2007 Edition
2005 Edition (Title 24)
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EXHIBIT S
BEGIN
HERE
cc ~ ll~ /c ~ -~~~
Linda Lagergren
From: Seema Mittal [seemam@comcast.net]
Sent: Tuesday, September 16, 2008 9:56 ~~M
To: Dolly Sandoval; Orrin Mahoney; Kris Wang; Gilbert Wong
Subject: ITEM 12 - 21947 LINDY LANE; SOLAR CONSULTANT LETTER; GEOTECH CONSULTANT
LETTER; from appelant
Attachments: MITTA-01-00 080912.pdf; Mittal_Mafiesh_residence_adverse_solar_impact.pdf
Dear Council members,
These are two brief letters from our solar and geotech consultant that we will briefly reference in our appeal today. I
thought it may be prudent to send them now - (along with passing them out as a handout.)
Staff report has already been issued stating our primary objectiors.
Please call me if there are any questions. For those members who have not had a chance to walk in between the
properties -feel free to use our side gate should you decide to vi~;it . If you decide to walk on the undeveloped lot -tennis
shoes are recommended!!
We will be home most of the day.
Thanks you so much for your time.
Seema and Sarvesh
408 334 0827
®Geotechnical ®Geoenviromental ~5pecial Inspection
_.. ... .
~.~
~e ENGINEERS __
Septf~mber 11, 2008
BAG(i Job No. MITTA-01-00
Seema Mittal
21949 Lindy Lane
Cupertino, California 95014
TEMI~ORARY SHORING FOR THE
SUPPORT OF A PROPOSED 20 FOOT CUT
Proposed Residence
21947 Lindy Lane
Cupertino, California
Ms. Mittal:
This letter presents the results of our geotechnical review and consultation concerning the
construction of a residence downhill of your house in Cupertino, California. As we understand,
a new house will be constructed at 21947 Lindy L<~ne, which may impact the stability and
integrity of your residence located at 21949 Lindy Larie in Cupertino. The following documents
were received for this review and consultation:
Geologic and Geotechnical Investigation titled "Moxley Subdivision, 21949 Lindy
Lane, Cupertino, California," prepared by Pacific Geotechnical Engineering, and
dated May 3, 2001.
Plans title "The Krishnapura's New Residence, 21947 Lindy Lane, Cupertino,
California," Prepared by Chia-Ching Lin, and d~~ted April 4, 2008.
Preliminary Update Geotechnical Investigation titled "Proposed 2-Story, Single
Family Structure with Basement, 21947 Lindy Lane, Cupertino, California,"
prepared by Wayne Ting & Associates, Inc., and dated July 9, 2008.
As reviewed, Sheet A-8 of the referenced plans shows a cross section of the existing house and
the proposed residence to be located vertically some 20 feet below your property. The
proposed construction will require an approximatel~~ 20-foot-high (stepped 12' and 8') vertical
excavation horizontally as close as 5 feet downhill of your property line. The Preliminary
Update Geotechnical Investigation recommended the following:
> www.baggengineE>rs.com
> phone: 650.852.9133 > fax: 650.852.9138 > info@baggengineers.com
847 West Maude Avenue, Sunnyvale, California 94085-2911
Seema Mittal
September 12, 2008
BAGG Job No. MITTA-O1-00
Page 2
"Before the proposed excavation for west retaining wall and basement is
excavated, WTAI recommends a temporary shoring system be constructed along
the proposed west property line, for the safely of the construction workers and
the protection of the neighbor's existing structure."
We essentially agree with this recommendation and are of the opinion that the shoring plans
for a soldier pier and lagging wall should be included ~rvith or accompany the structural plans. It
is critical that the shoring is constructed be ore any excavation is made below the existing
residence. Moreover, any such shoring must be designed to limit the movement of the top of
the shoring to no more than % inch. As such, removable shoring system would not be
appropriate for the noted excavation, as it may impact the structural integrity of the backyard,
the house, and other improvements existing above tl~e proposed excavation. Again, we stress
the fact that a lateral movement at the top of the shcring system is undesirable and the system
must be designed with this limitation in mind.
Also we would like to emphasize that the shoring and excavation be performed outside the
rainy reason moratorium. There are utility trenches located near the property line and during
the raining season the utility gravel backfill will collect seepage and deliver the water to the top
of the proposed excavation.
Thank you for the opportunity to be of service on this project. Please do not hesitate to contact
us, should you have any questions or comments.
Very truly yours,
BAGG ENGINEERS ,aoFessroN
A
~y~,A Q~;;J~~ A (~~~ F
..-~TL~ C,sY~-'~Qi ~'o
~ EXP 12T3
Bruce Gaviglio~s~°opecH
Sr. Geotechnical E~~ ,
BEG/JVZ/sd
Distribution: 6 copies addressee
-BAGG
mr~v EE a~
1 8 6 6 B o n h i l l D r, F o' s o m, C A 9 5 6 3 0
Phone 91 F-977-3804
Email : s m i t a g u p t a i 3@ g m a i!, c o m
September 11, 2008
Dear City Council members:
I have provided consultation on the photovoltaic system and passive solar aspects of the Mittal
/Mahesh residence (21949 Lindy lane, Cupertino). In the Cupertino climate which is relatively
mild with higher heating degree days than cooling it is prudent to design buildings that would
have passive solar heating as far as possible to minimize the energy use. And the residence has
been designed to take advantage of the east and south solar access and it is important to
preserve that.
I have toured the site and reviewed the impact of the story poles (21947 Lindy Lane) sited in
the adjacent parcel. I have additionally run detailed solar analysis on the potential impact to the
east facade using the proposed building dimensions and location and found significant loss of
solar access in the winter mornings which is cruci~~l to providing heat to the internal thermal
mass for benefit during the rest of the day. The average percentage of hours shaded by the
proposed neighboring structure in winter are estim~~ted to be 6-7%, with a maximum shading of
60% in some months. This has significant impact on the benefit of solar access which is useful in
offsetting the heating load in the winter months. More detailed monthly numbers and averages
will be presented at the hearing on the matter. Adclitionally the daylight availability also offsets
the need for artificial lighting in the main living area and any loss in that will also be detrimental
to the overall energy use in the residence.
In light of these solar losses that the Mittal/Mahesh residence would suffer, I would highly
recommend that the neighboring structure be either:
a. restricted in height to further minimize projection above the floor level of the
Mittal/Mahesh residence, or
b. the long vertical wall created by the approx 70' long facade be reduced as much as
possible to minimize the obstruction to the PJlittal Mahesh east faced solar access, or
c. the building facade be moved further away (at least another S') thus increasing the
distance between the two buildings or
d. be sited elsewhere on this half acre property so as to least obstruct the east facade in
question.
Both at the state and global level the importance c-f conserving energy towards mitigating the
climate change impacts has become a high priority. And energy efficiency in the built
environment is considered a first order task in the loading order adopted in the Integrated
Energy Policy of the State. The responsible public agencies in the state have adopted an
aggressive goal of achieving net zero energy use in the new residential sector by 2020 and the
building energy efficiency standards will drive towards the goal. Also, green building standards
such as the LEED rating system; consider more weii;ht for low energy use in buildings, which is
best achieved by passive solar design strategies. In light of these global concerns the City should
send the right message in its support for the envir~~nment and state policy of reducing energy
use in the built environment, while reviewing the nf~ighboring construction for allowable height
. and set back related to siting within the parcel and consider the potential adverse impacts on
the energy use of the Mittal /Mahesh residence in its resolution. I will be unable to attend the
hearing scheduled for Sept 16, 2008 and request this letter be considered in lieu.
I present this letter in the capacity of an energy consultant on this project. t am an architect by
education with a Masters in Building Science dealing in bioclimatic design, detailed simulation
and analysis for energy efficiency and have been involved with energy analysis in the built
environment for over 10 years now, both in the policy and standards development as well as
consulting role. I am currently an Energy Specialist at the California Energy Commission in the
Buildings and Appliances Office that sets the Building Energy Efficiency Standards (Title 24, Part
6) and consulted for this project privately.
Sincerely,
Smita Gupta
Energy Specialist
LEED'"' Accredited Professional
cc 91r~1o~
Linda Lagergren '~f ~
From: Seema Mittal [seemam@comcast.net;~
Sent: Monday, September 15, 2008 1:24 Ph1
To: Dolly Sandoval; Orrin Mahoney; Kris Nang; Gilbert Wong
Subject: Request from appelant, Proposed home on 21947 Lindy lane. Item 12 on tomorrow's agenda.
Madam Mayor and City Council members,
We are the residents of the uphill home and would humbly like to request you to vist the two sites in question. We will
really appreciate it if you can walk through our side yard or in between the story poles and our property to clearly
understand the context of our appeal tomorrow, as opposed to what you might see via a simple drive by.
We will make ourselves available if you need us to be here, anytime between now and the hearing, should you want to
stop by and ask any questions.
Thanks a lot,
Seema and Sarvesh
~ /~2
Kimberly Smith
From: Jeffrey Hare [jbhlaw@pacbell.net]
Sent: Monday, September 15, 2008 4:24 PM
To: Dolly Sandoval; Orrin Mahoney; kwan@cupertino.org; Gilbert Wong; City Clerk; Steve
Piasecki
Cc: 'Seema Mittal'
Subject: Emailing: Letter to Planning Commis:~ion0001, Letter to City Council 9-15-2008
Attachments: Letter to Planning Commission0001.I~DF; Letter to City Council 9-15-2008.PDF
Importance: High
City Council of Cupertino
Planning Director
City Clerk
Re: Appeal of Planning Commission Decision
Agenda Item #12, City Council Meeting Agend;~ for September 16, 2008
Residential Design Review for 21947 Lindy L;3ne
Appellant: Seema Mittal and Savesh Mahesh
Attached is a letter to the Mayor and Members of the City Council, along with a copy of
my earlier letter to the Planning Commission dated July 21, 2008, which I do not believe was
included in your Council packet.
Thank you for your consideration of our comments.
Very truly yours,
]effrey B. Hare
Jeffrey B. Hare, APC
A Professional Corporation
501 Stockton Avenue
San Jose CA 95126
408-279-3555 (Direct)
408-279-5888 (Fax)
~bhlaw(~pacbell.net
Your message is ready to be sent with the following file or link
attachments:
Letter to Planning Commission0001
Letter to City Council 9-15-2008
Note: To protect against computer viruses, a-mail. programs may prevent sending or receiving
certain types of file attachments. Check your a-mail security settings to determine how
attachments are handled.
1
JEFFREY B. BARE
Attorney at l.aw
A Professional Corporation
501 Stockton :lvcnuc
San dose California 95126
Tel: 408-279-3555 F'ax: 408-279-5888
Jbhlaw@pacbcll.net
July 21, 2008
Via Regular and E-mail
CHAIRPERSON AND MEMBERS OF THE
CUPERTINO PLANNING COMMISSION
CITY OF CUPERTINO
10300 TORRE AVENUE
CUPERTINO, CA 95014
RE: RESIDENTIAL DESIGN REVIEW AND MINOR RESIDENTIAL PERMIT'
FOR 21947 LINDY LANE (R-2008-14 R,ND RM 2008-16)
Dear Chair and Members of the Planning Commission:
This letter is submitted on behalf of my clients, Seema Mittal and Sarvesh Mahesh,
owners of the property located at 21949 Lindy Lane, Cupertino, which is located immediately
adjacent to the property which is the subject of your review. Ms. Mittal and Mr. Mahesh oppose
the Application for the reasons set forth herein.
1. "fhe proiect does not conform to the zoning r~ulations that were in effect when the 3-lot
subdivision was orictinally approved by the t~ity Council.
As noted in the Staff Report, the proposed development is located in the middle lot of a 3-lot
subdivision initially approved by the Planning Commission in 2001 and the City Council in
2004. My clients purchased the uphill property (Lot 1) at 21949 Lindy Lane in or around
February, 2005. Ms. Mittal, an Architect by profess>ion, took painstaking care to review the
zoning regulations then in effect, and designed her lilture home taking into account the
maximum parameters allowed for the downhill property on Lot 2. She specifically designed her
family's home to take full advantage of the beautiful views, maximize passive solar energy to
reduce reliance on mechanical heating and cooling systems, and incorporated structural elements
to ensure hillside geologic stability.
Unfortunately, while living away from the property during the construction phase, my clients
were unaware of proposed changes to the zoning regulations, under which the current application
has been submitted. Most significantly, the mass alld scale of the proposed design will serve not
only to obliterate the wonderful views of the valley that my clients have enjoyed, but also will
serve to defeat the passive solar energy design of tE•~e structure itself. In addition, the proposed
placement and design will require installation of a massive retaining wall that could possibly
threaten the geologic stability of my client's property. 'The cut and grading required for
Planning Commission
July 21, 2008
Page 2
installation of the footing for this massive retaining wall right at the setback line could
undermine the stability of the underlying bedrock which provides support for my clients' home.
2. The proposed development is inconsistent with the Qurpose and intent of the Single-
Family Residential (R-I1 Zoning regulations.
Chapter 19.28 of the Cupertino Municipal Code provides, in pertinent part, that the Purpose
of establishing R-1 single-family zoning districts is intended to "create, preserve and enhance
areas suitable for detached dwellings in order to:
A. Enhance the identity of residential neighborhoods.
B. Ensure provision of light, air and a reasonable level of privacy to individual residential
parcels;
C. Ensure a reasonable level of compatibility in scale of structures within residential
neighborhoods;
D. Reinforce the predominantly low-intensity scatting in the community.
The proposed development is inconsistent with the purpose and intent of this 7.oning District
for several reasons, as will be discussed below. A critical clement of the proposed design, as
noted above, is that the upper story will infringe upon the adjoining property owner's passive
solar design. Section 1 of the R-1 Zoning Ordinance states, in part, as follows:
Solar Design. The setback and height restrictions provided in this chapter may be
varied for a structure utilized for passive or ~cctive solar purposes, provided that no
such structure shall infringe upon solar easernents or adjoining property owners.
(§19.28.060(I); emphasis added.)
The Staff Report correctly notes that there are no solar easements (at p. 5), but does not
address the point that the Zoning Ordinance expressly prohibits any structure from infringing on
solar easements or adjoining aroperty owners. Here, the proposed design, as depicted by the
story poles, will clearly infringe on the adjoining pr~~perty, effectively defeating both the views
and passive solar design so carefully incorporated into the design of the uphill property.
The focus here is the fundamental purpose of thy: 7_oning Ordinance - to "ensure a reasonable
level of compatibility in scale of structures with residential neighborhoods." Where the proposed
design of a new structure has the potential to adversely affect adjoining properties, the Zoning
Ordinance provides for a process of review, and allows adjoining neighbors the opportunity to
comment on those featwes of the proposed design that could have significant impacts on their
property. Therefore, even if the proposed design meets the specific, numeric maximum
parameters set forth in the design guidelines, the "Coning Ordinance allows for further
modifications to "ensure a reasonable level of comf~atibility" with the adjoining properties.
Here, slight modifications to the proposed design would allow the applicant full benefit of their
property, but would preserve most of the passive solar function of the uphill property design, as
well as some of the views. It is exactly this type of modification that is contemplated under the
provisions of the Zoning Ordinance in order to allo~N fora "reasonable level of compatibility."
Planning Commission
July 21, 2008
Page 3
3. Further design modifications and tniti atp ion of adverse impacts will be required before
the required findings can be made to approve: the permit.
Section 19.28.100, "Two-Story Residential Pem~it," allows the Director of Community
llevelopment, and by the basis of this referral, the Planning Commission, to "approve,
conditionally approve, or deny the application. The permit can be approved only upon making
all of the followine findings:
1. The project is consistent with the Cupertino General Plan, any applicable specific plans,
zoning ordinances, and the purposes of this title.
2. The granting of the permit will not result in a condition that is detrimental or incurious to
propert o~improvements in the vicinity> and will not be detrimental to the public health,
safety or welfare.
3. "I'he proposed project is harmonious in scale and design with the general neighborhood.
4. Adverse visual impacts on adjoining_properties have been reasonabl~mitit ag fed.
(§ 19.28.100(D); emphasis added).
'fhe Zoning Ordinance contemplated that even if a proposed two-story single-family home
design met the numerical parameters set forth in the Code, the City would have the authority to
impose conditions and mitigation measures before approving the permit, in order to ensure
compliance and consistency with the General Plan tmd subelements, including the City's Zoning
Ordinance. The required findings above include a finding of consistency with the purposes of
Title 19~; avoid any detrimental impacts on other property in the vicinity; that the proposed
~ 19.04.020 Purposes.
The purposes of this title shall be to promote and protect tF~e public health, safety, peace, morals, comfort,
convenience, and general welfare, including the following mare particularly specified purposes:
A. To further promote, and accomplish the objectives, policies, and programs of the Cupertino General Plan;
B. To protect the character and [he social and economic stability of agricultural, residential, commercial,
industrial and other areas within the City; to asstue the orderl~i and beneficial development of such areas; and more
particularly, to lessen congestion and assure convenience of access; to secure safety from fire, flood and other
dangers; to provide Cor adequate light, air, sunlight and environmental amenities; to promote and encourage
conservation of scarce resources; to prevent overcrowding of land and undue concentration of population, to
facilitate the creation of a convenient, attractive and harmonious community; to attain a desirable balance of
residential and employment opportunities; to facilitate the adequate provision of transportation, water, sewage,
drainage facilities, schools, parks and other public developments; to protect the food supply; to conserve property
values; to promote efficient urban design and arrangement; ar.d to secure economy in governmental expenditures;
C. To mitigate the negative impacts to public safety resulting from the location of buildings, and the uses of
buildings and of land, adjacent to streets and highways while at the same time facilitating existing or prospective
traffic movements throughout the City.
Planning Commission
July 21, 2008
Page 4
project be harmonious in scale and design, and to mitigate visual impacts on adjoining property.
The Code requires that all of these findings must be made before a permit can be approved.
In addition, the Zoning Ordinance specifically requires that no exceptions may be granted
unless all specified findings as set forth in § 19.28.1 l0 be made. Most noteworthy among the
required findings is that the "proposed exception will not result insignificant visual impact as
viewed from abuttingproperties." Here, there is no question but that the proposed second story
design, although permitted under the modified Ordinance that was adopted subsequent to the
approval of this 3-lot subdivision, would have a si ttificant visual impact as viewed from Ms.
Mittal and Mr. Mahesh's property. Unless the desil;n is further modified, we submit that the
failure to satisfy the requirements of this finding would be sufficient grounds for denial of the
proposed project.
4. The proposed development is not consistent with the requirements of the Citv's
Residential Hillside fREiS Zoning_regulations.
The City's Residential Hillside Zoning regulations were adopted to ensure that residential
development in the hillside areas would be balanced with the need to conserve natural resources
and protect life and property from natural hazards. Towards this end, the RHS regulations are
designed, in part, to:
C. Ensure a reasonable level of'compatibility in scale of structures within residential
neighborhoods; and
D. Maintain spatial relationship between structures and within neighborhoods.
(§ 19.40.010).
In addition, the RHS Zoning Ordinance provides, in pertinent part, as follows:
19.40.120 Solar Design.
The setback and height restrictions provided in this chapter may be varied for a structure
utilized for passive or active solar purposes; provided, that no such structure shall infringe
upon solar access or property rights of adjoinint;property owners. [...]
In other words, the RHS Zoning regulations expressly address and prohibit a structure from
infringing upon the solar access of adjoining property owners. This provision is not limited to
situations involving solar "easements," but is expressly applicable to the "solar access" rights of
adjoining property owners. Here, Ms. Mittal specifically designed her home in reasonable
reliance upon the then-existing zoning standards in order to permit her to utilize natural passive
solar energy. The RHS Ordinance expressly states that the chapter is intended to "ensure a
Planning Commission
July 21, 2008
Page 5
reasonable level of compatibility in scale of structures," and to "maintain a spatial relationship
between structures and within neighborhoods." Allowing the enlarged second story to the extent
proposed by the adjacent property owner would defeat the passive solar design element
deliberately incorporated by Ms. Mittal when she designed her home.
5. Unusual Circumstances preclude the City's use of an exemption from the requirements of
the California Environmental Quality Act fur this Project.
Neither the Staff Report nor the Drafi Resolution makes any reference to compliance with the
requirements under the California Environmental Quality Act (CEQA) for this proposed
development on hillside property. The RHSLonin;; Ordinance (Chapter 19.40) acknowledges
that the purpose and intent of the RHS Zoning District is to preserve the natural setting in the
hillsides, and that the to ensure that the utilization of land for residential uses is balanced with the
need to conserve natural resources and protect life ;tnd property from natural hazards.
The hillside location, amount of grading required, and the project's inconsistency with
specified elements of the City's Zoning regulations render it ineligible for consideration for a
categorical exemption under CEQA. (14 Cal. Code Regs. §15300.2). Whereas a similar project
located on flat land may qualify for such an exemption, this project's unique location on a lot
with an approximately 28% grade slope could have significant, adverse impacts on the stability
of the hillside. The impact of the ultimate design and placement of the project structure could
impact not only the uphill property, but the downhill property and the stability of Lindy Lane
itself, which provides vehicular access to a number of other residential properties in the area.
The Staff Report provides that the retaining walls and setback regulations "will be reviewed,
along with the basement and foundation, by the applicant's geotechnical engineer and the City's
geologist prior to building permit approval." (at Page 4). In addition, the Staff Report requires
that a "construction management plan" will be required as part of a building permit application.
However, no additional detail, soils studies, or other relevant geologic information has been
provided at this time by the applicant. The City htis not requested an Initial Study.
Ms. Mittal has identified the potential adverse 1;eological impacts that could result from the
extraordinary amount of grading that will be required, the placement of the proposed retaining
walls, and the potential for destabilization of the sensitive hillside environment The City's
Zoning Ordinance specifies that one of the criteria for permit approval is that it will "not result in
a condition that is detrimental or injurious to property or improvements in the vicinity, and will
not be detrimental to the public health, safety or w~;lfare. (§ 19.28.100(D)).
We therefore submit that the City should require the applicant to prepare and provide
appropriate soils and geotechnical information, a construction management plan, and other
information per the requirements under CEQA. Tlie hillside location and nature of this project
render it as an exception to the exemptions due to the unusual circumstances in this case, and the
City, as Lead Agency, needs to comply with CEQA.
Conclusion
Planning Commission
July 21, 2008
Page 6
Ms. Mittal went to great lengths to study existing zoning regulations and designed her
home not only to be fully compatible and consistent. with the City's requirements, but also to
take into account the eventual development of the adjacent hillside lot per those requirements.
Ms. Mittal was well-ahead of the curve in her efforts to design a home that was `'Green" before it
became fashionable, incorporating unique passive solar features and other elements to allow it to
fit into the hillside environment. The changes in thy; City's zoning ordinance, while allowing the
much larger second story features that now threaten to block her views of the valley Floor, as
well as defeat the passive solar features of'the home, still provide for a degree of discretion to
ensure ultimate compliance with the fundamental purpose and intent of the City's regulations:
compatibility with the surrounding residential neighborhood.
Ms. Mittal has stated that the proposed building design for 21947 Lindy Lane might be
suitable for a flat lot, but is inappropriate for a slopi ng hillside property with 29% grade. She is
not saying that the adjacent property should not be ~~eveloped -only that the development should
comply with the City's R-1 and RHS Zoning ordin~mces. She has submitted information that
shows this can be accomplished with some modest changes to the proposed project, and requests
that the City give careful consideration to the feasit~le alternatives she has proposed. Otherwise,
my clients have no alternative but to request that you deny the application as proposed.
'T'hank you for your consideration of our request.
Respectfully submitted,
,......,,~•~ \7 t ~~.
Jeffre~ B. Hare
cc: Charles Kilian, City Attorney
Steve Piasecki, Director of Community De~~elopment
Colin Jung, Senior Planner
Clients
JEFFREY B. HARE
Attorney at Law
A Professional Corporation
501 Stockton Avenue
San Jose California 95126
'CeL• 408-279-3555 fax: 408-279-5888
Jbhlaw@pacbell.net
September 15, 2008
Via E-mail
MAYOR AND MEMBERS OF THE
CUPERTINO CITY COUNCIL
CITY OF CUPERTINO
10301) TORRE AVENUE
CUPERTINO, CA 95014
RE: APPEAL OF PLANNING COMMISSION DECISION
CITY COUNCIL MEETING SEPTEMBER 16, 2008; AGENDA ITEM #12
RESIDENTIAL DESIGN REVIEW AND h11NOR RESIDENTIAL PERMIT
R-2008-14 AND RM 2008-16 (21947 LINDY LANE)
APPELLANTS: SEEMA MITTAL AND SAVESH MAHESH
Dear Mayor and Members of the Cupertino City Council:
This letter is submitted on behalf of my clients, Seema Mittal and Sarvesh Mahesh,
appellants and owners of the property located at 21'J49 Lindy Lane, Cupertino. They are
appealing the decision of the Planning Commission on July 22, 2008 for the Residential Design
Review and Minor Residential Permit for the property located next door at 21947 Lindy Lane.
The primary basis for this appeal is that the adverse visual impacts to the adjoining
property which will result from the proposed mass ,ind scale of the project's upper story have not
been adequately mitigated. In addition, appellants ~:ontend that the proposed project is not
harmonious in scale and design with the neighborhood, and the project is not consistent with the
Cupertino General Plan or the R-1 Zoning Ordinan~;e. This letter incorporates my earlier letters
dated May 28, 2008, and July 21, 2008, that were previously submitted to the City.l
Introduction
Planning Staff acknowledges that the application for development of the property located
at 21947 Lindy Lane is the first proposal under the new ordinance (No. 07-2011, adopted in
~ Some issues raised in the earlier letters have since been addressed by the City or the project applicant; e.g., the
retaining wall location has been moved back to the required 5-foot setback; and the City has identified the CEQA
exemption. However, since a copy of the July 21 letter does not appear to be in the Council packet, a copy is
attached for your reference.
Cupertino City Council
September 15, 2008
Page 2
November, 2007), which revised Section 19.28.050 of the R-1 zoning ordinance. Appellants
submit that the application of the modified development regulations reveals -for perhaps the
ftrst time -certain inconsistencies with the underlying purpose and intent of the City's zoning
ordinance and regulations.
As detailed in earlier correspondence, Ms. Mittal and her husband purchased the uphill
lot in early 2005. Ms. Mittal, a professional Architt;ct, devoted a considerable amount of time
analyzing the applicable zoning regulations and guidelines, and deliberately designed her home
taking into account that someday the downhill lot (I,ot 2) would be sold and developed with
another single family home. Ms. Mittal designed h~:r home to take full advantage of the
wonderful views of the valley floor, and incorporat~;d sophisticated passive and active solar
energy systems and breezeway to minimize dependence on mechanical heating and cooling
systems. Unfortunately, because they were living c ff--site during the construction, they received
no notification of the pending changes to the Ordin,ince. It was only when the story poles were
installed on April 17, 2008, that Ms. Mittal and her husband first became aware of the new
ordinance, which effectively allowed her neighbor i:o double the mass and scale of the upper
story portion of his building compared to what had been previously allowed under the code, and
on which she had depended in the careful "green" design of her home.
The Staff Report summarizes and responds to several of the major areas of concern raised
by the appellants. For the sake of convenience, this; letter will address these issues in the order
presented in the Staff Report.
1. The Project is not compatible with the scale and design of other residential uses in
the neighborhood.
The Staff Report highlights that the proposed h~~use is 1,000 sq. ft. smaller than the two
adjacent homes in the 3-lot subdivision on Lindy Lane, but this is somewhat misleading. The
Report acknowledges that the second story of the t~NO other houses meet the 35% limit that was
in effect when they were constructed in 2005-06, gild that the second story of the proposed house
will be 74.3% -- more than double -the size of the others. In addition, because the covered
balcony (approximately 500 sq. ft.) and basement (approximately 2,000 sq. ft.) are not counted in
the total FAR (floor area ratio), the total size of the structure will measure almost 6,500 sq. ft.,
with an upper story more than twice the mass and ~~cale of the adjoining properties.
As a consequence, the proposed building fails to satisfy the requirement under the City's
Zoning Regulations that it be designed to "ensure 2t reasonable level of compatibility in scale of
structures within residential neighborhoods." (§19.28.010(C), "Purpose."). In addition, the mass
and scale of the proposed residence fails to comply with the building design guidelines for new,
two-story houses, which states, in part, as follows:
The mass and bulk of the design shall be reasonably compatible with the
predominant neighborhood pattern. New a~nstruction shall not be
disproportionately larger than, or out of scale with the neighborhood pattern in
terms of building forms, roof pitches," etc. (§ 19.28.060(C); emphasis added).
Cupertino Ciry Council
September I5, 2008
Page 3
The Staff Report also acknowledges that the proposed house will be "larger than many of the
older residences in the neighborhood." We submit that allowing an upper story that is more than
twice the size and scale of the adjoining properties would allow a structure "disproportionately
larger than, and out of scale with, the neighborhood pattern." Just because the modified zoning
regulations allow it does not mean that the City is required to approve it.
In fact, the City's Zoning Regulations demand otherwise. Section 19.28.050 was
modified to provide specific development regulations for properties located within the specified
hillside area, but does not operate as a stand-alone zoning regulation. Nothing in Section
19.28.050 modifies, deletes or supersedes the fundamental purpose of the Single-Family
Residential Zone (R-l) regulations as set forth in Chapter 19.28, which, in relevant part, states as
follows:
B. Ensure provision of light, air and a reasonable level of privacy to individual
residential parcels;
C. Ensure a reasonable level of compatibility in scale of structures within residential
neighborhoods. (emphasis added).
Moreover, as set forth emphatically in Section 19.28.020, "Applicability of Regulations:"
No building, structure or land shall be used, and no building or structure shall be
hereafter erected, structurally altered or enlarged in an R-1 single-family
residence district other than in conformance with the provisions of this chapter
and other applicable provisions of this title. (§ 19.28.020, emphasis added).
The 2007 modification of Chapter 19.28 dici not eliminate the general requirements under
that Chapter, or under Title 19 itself. As we previously noted in a letter to the Planning
Commission, Section 19.28.100, "Two-Story Residential Permit," allows the Director of
Community Development, and by the basis of this referral, the Planning Commission, to
"approve, conditionally approve, or deny the application. The permit can be approved only upon
making all of the following findings:
1. The project is consistent with the Cupertino General Plan, any applicable specific plans,
zoning ordinances, and the Qurposes of this title.
2. The granting of the permit will not result in a condition that is detrimental or injurious to
property or improvements in the vicinity, aild will not be detrimental to the public health,
safety or welfare.
3. The proposed project is harmonious in scale and desi¢n with the general neighborhood.
4. Adverse visual impacts on adj_oininQ properties have been reasonably miti ag ted.
Cupertino City Council
September 15, 2008
Page 4
(§19.28.100(D); emphasis added).
Therefore, the 'Coning Ordinance expressly provides that the City must make all of the
foregoing findings before approving atwo-story project, and further, the City has the authority to
impose conditions that will ensure compliance and <;onsistency with the General Plan and the
purposes of Title 19Z.
In addition, the Zoning Ordinance specifically requires that no exceptions may be granted
unless all specified findings as set forth in §19.28.110 be made. Most noteworthy among the
required findings is that the "proposed exception will not result in significant visual impact as
viewed from abutting_properties." Here, there is no question but that the proposed second story
design will have a significant and adverse visual impact as viewed from Ms. Mittal and Mr.
Mahesh's property. Unless the design is further modified, we submit that the failure to satisfy
the requirements of this finding are sufficient grour, ds for denial of the proposed project.
2a. The Project will create a significant obstruction to appellant's passive solar design
features.
Curiously, the Staff Report declares that "the City may allow variances to setback and
height to accommodate passive or active solar equipment or house design, but no such modified
structure shall infringe upon adjoining property owners." Here, a critical objection to the
proposed design, as noted above, is that the upper story will infringe upon the adjoining property
owner's passive solar design. Section I of the R-1 Zoning Ordinance states, in part, as follows:
Solar Design. The setback and height restrictions provided in this chapter may be
varied for a structure utilized for passive or active solar purposes, provided that no
such structure shall infringe upon solar easements or adjoinin¢ property owners.
(§19.28.060(1); emphasis added.)
The Staff Report correctly notes that there ~tre no solar easements (at p. 5), but does not
address the point that the Zoning Ordinance expressly prohibits any structure from infringing on
solar easements or adjoining property owners. In ~m accompanying letter, appellant's solar
energy consultant, Smita Gupta, notes that based on a detailed solar analysis, the proposed
structure will result in "significant loss of solar access in the winter mornings," with maximum
shading of up to 60% in some months. In addition to increasing the demand for mechanical
heating systems, the loss of daylight will increase the need for artificial lighting in the main
living area to the overall detriment of the energy-s;iving systems designed by Ms. Mittal.
~ Included among the specific purposes delineated in § I9.G4.020 are the following objectives: °to provide for
adequate light air sunlieht and environmental amenities; to promote and encourage conservation of scarce
resources; to prevent overcrowding of land and undue concentration of population, to facilitate the creation of a
convenient, attractive and harmonious community; ... to conserve property values; to promote efficient urban desi¢n
and arrangement; ..." (emphasis added).
Cupertino City Council
September I5, 2008
Page 5
Here, the issue is not the distance between th.e buildings, or the elevation of the proposed
structure, but the mass and scale of the upper story. All that we request is that the second story
be limited to a similar percentage of the first floor a:•ea in a similar proportion to the adjoining
properties, in order to allow it to be "harmonious in scale and design" with the adjoining
properties. This would not only reduce the direct impact on Ms. Mittal's passive solar design,
but would also ensure that the "adverse visual impa~;ts on adjoining properties [had] been
reasonably mitigated." (§ 19.28.100; required findin;~s for approval of two-story residential
permits.)
2b. Project will have an adverse visual impact and restrict the views of the uphill
ro er
Staff states that the City "does not regulate the protection of private property views in
hillside areas," citing § 19.40.050(L). Section 19.04.020, which sets forth the Purposes of Title
19, includes among the particularly specified purpo:>es, the objective of providing for "adequate
l~~ht air sunlight and environmental amenities; ... to prevent overcrowding of land and undue
concentration of population, ... to conserve property values; to promote efficient urban design
and arrangement; ...." (Emphasis adder,!). Clearly, these "particularly specified purposes" of
"title 19 are intended to achieve results consistent with the preservation of privacy and views,
even if not directly regulated or guaranteed under the City's ordinances. Moreover, as noted
above, the City must find that "adverse visual impa~;ts on adjoining properties" have been
reasonably mitigated to approve atwo-story residential permit. (§19.28.100(D)(4)).
Appellant does not seek nor demand full protection of her views and access to light and
air. She recognizes that some portion of her views ~tnd solar access would be affected by a
subsequent development of the adjoining parcel, but did not anticipate a wholesale abandonment
of the upper story limits under which her house was built. Appellant does not ask the City to
guarantee her views, only to reasonably mitigate th<: adverse visual impacts as required under the
Code.
2c. The mass and scale of the overall structure and its proximity to the property line,
poses a potential threat to hillside stabilibr, both durine construction and after
completion.
The proposed project will include a basemettt measuring almost 2,000 sq. ft. in size, that
will require an approximately 20-foot vertical excavation starting at a point five (5) feet downhill
of appellant's property line. Appellant's geotechnic:al consultant has reviewed the relevant plans
and geotechnical reports, as well as applicant's geolechnical report, and recommends that the
City mandate the temporary shoring system be engineered and reviewed by the City, and
constructed before the proposed excavation takes place, for the safety and protection of the
construction workers as well as the protection of appellant's property and existing structure.
We therefore request that the City impose, as a further condition of approval, that the
applicant be required to submit plans and calculations a fully engineered shoring system for
Cupertino Ciry Council
September I5, 2008
Page 6
review by the City, and that the shoring system be installed prior to issuance of any building
permits.
CONCLUSION
Ms. Mittal, as a professional Architect, took reasonable measures not only to design her
home in a way that did not adversely affect any of her neighbors, but also to incorporate "green
energy" elements that were ahead of her time. In particular, she designed her home to
accommodate what she reasonably anticipated would be a two-story residential structure on the
downslope property that would meet the requirements under the City's Zoning regulations -
hartnonious in mass and scale with the other homes in the neighborhood, and that any adverse
impacts would be reasonably mitigated.
The application before you is the first under the revised ordinance, and therefore presents
- for the first time -some of the challenges and inamsistencies that might not have been
apparent when adopted in 2007. The impacts of the proposed design are severe and would
permanently and adversely affect Ms. Mittal's carefully designed home. At the same time, we
note that these issues can be fairly easily resolved, rind simply ask that the City to impose the
conditions described herein so as to allow construction of a house that is harmonious with the
adjoining properties.
Respectfully submitted,
\~. , . A
Jeffrey B. Dare
Attachment: Letter to Planning Commission dated July 21, 2008
cc: Steve Piasecki, Director of Community Development
Clients
~`l ~
Linda Lagergren
From: Edward Chan [echan@kcrdevelopme~nt.com]
Sent: Sunday, September 14, 2008 4:21 PISA
To: Dolly Sandoval; Orrin Mahoney; Kris Wang; Gilbert Wong; Mark Santoro
Subject: Upcoming City Council Meeting, Item#12 - 21947 Lindy Ln
Attachments: 21947 Lindy Lane-7-21-08-letter.pdf
Dear Madam Mayor and City Council Members,
I am writing to you regarding the Appeal of 21947 Lindy L~1, Item no. 12 in the upcoming City Council
meeting. I live adjacent to the project at 21943 Lindy Ln, which is the East neighbor.
I sent a letter regarding my concerns to Colin and the Planning Commissioners the day before this application
went to the Planning Commission. Unfortunately, it was not included in your packet and I have attached it for
your reference.
My letter had two concerns, of which only one was addressed in the meeting. The first concern was regarding
the distance of the retaining wall next to my property. One of the conditions of the Planning Commission's
approval (Sec III, Item 6 in Resolution 6522) was that the easterly retaining wall be setback 8 ft from the
property line where there is privacy landscaping.
However on Sheet L 1 in the approved plans attached to your packet it does not show the easterly retaining
wall to be 8 feet from the propertyline. I hope that in your reviewprocess it is confirmed that the attached
plans are incorrect and that the easterly retaining wall will be 8 feet from the property line.
My second concern is regarding the proximity of the proposed 2"d floor balcon~. Unfortunately, my concern
was not discussed or addressed at the Planning Commission. The proposed 2" floor balcony is too close to my
home and has a direct line of sight into my master bedroorri window and looks directly over my backyard.
I request that the~roposed 2"d floor balcony be reduced -such that the~ortion of the balcony that steps down is
removed. Currently, the 2nd floor balcony is over 800 sq f't in size, in addition to 1918 sq ft of second floor. If
they were to remove the step down portion, they would still have over 540 sq ft of balcony. The true reduction
of his usable balcony is approximately 183 sq ft, because he has four feet of steps. By removing this portion of
the balcony, they would be further away from my master bedroom window and also further away from my
backyard. Although I would prefer the removal of any bal~~ony facing my master bedroom window and
backyard, the removal of the step down portion would pro~~ide my property more privacy as a compromise.
I hope my concerns can be addressed during the upcoming City Council meeting. Thank you for your
consideration.
Sincerely,
Edward Chan
21943 Lindy Lane
408-828-1210
Colin Jung July 21, 2008
Senior Planner
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
TtE: Proposed project at 21947 Lindy Lane
Dear Colin:
I received the latest updated plans for 21947 Lindy bane. I have two issues with the drawings:
1) Proximity of proposed retaining wall -The retaining wall is still too close to the property
line. There is insufficient area for planting tF~e privacy landscaping and there is still a
crowding/towering affect because the wall is so close to my walkway.
2) Privacy screening and proximity of 2"d floor balcony
As we discussed on Sunday (July 20`h), Shesha did lower the retaining walls to less than six feet
in height, but kept the wall only six feet away from the property line. The existing concrete
swage is approximately four feet from the property line, which leaves only two feet of area to
plant the privacy landscaping. I believe two feet is not a sufficient area for planting. Also, our
rear walkway that is adjacent to the project sits approximately five to six feet below the exposed
base of the proposed retaining wall. This puts the to p of the retaining wall over 10 feet above
anyone who walks the walkway.
I request that Shesha move his proposed retaining wiill two feet further away from the property
line -such that the wall would be eight feet away from the property line. This would provide
four feet of planting area, as well as move the wall further away to help alleviate the towering
affect. When we discussed this possibility, you mentioned that it was a good idea and would be
better for the privacy planting. I believe this to be a reasonable and fair resolution to the
retaining wall height and location issue.
In the updated plans, Shesha added a section drawing; (Sheet A-8). On this drawing shows an
angled window on the 2"d floor of my house. This window is my master bedroom. We are
concerned that balcony is too close and has a direct line of sight into our master bedroom
window. Before receiving Sheet A-8, we did not realize how close the balcony is to our master
bedroom. Also the balcony looks directly over my backyard.
I request that Shesha reduce the size of his 2"d floor l~alcony -such that he removes the portion of
the balcony that steps down. Currently, the 2"d floor balcony is over 800 sq ft in size, in addition
to 1918 sq ft of second floor. If he were to remove the step down portion, he would still have
over 540 sq ft of balcony. The true reduction of his czsable balcony is approximately 183 sq ft,
because he has four feet of steps. By removing this portion of the balcony, he would be further
away from my master bedroom window and also further away from my backyard. Although I
would prefer the removal of any balcony facing my master bedroom window, this would provide
my property more privacy as a compromise.
In re arg ds to privacy landscape screening- we request to have some of the screen shrubs replaced
with non-deciduous~rivacy trees that are of si ng if c;~nt size and are of a species that rg ows
ra idl .The current proposal shows approximately 130 feet of shrubs. We feel that some
Melaleuca Linarifolia trees, in addition to the shrubs, would provide more adequate privacy
screening from the reduced 2°d floor balcony and more interest in the privacy landscaping.
If you have any questions, please feel free to contact me at (408) 828-1210.
Thank you for your consideration,
Edward Chan
21943 Lindy Lane
Cc: City of Cupertino Planning Commissioners
