106-5 - TR-2014-08 Draft Resolution.pdf
TR-2014-08
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
DRAFT RESOLUTION
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO RECOMMENDING APPROVAL
OF A TREE REMOVAL PERMIT TO ALLOW THE REMOVAL AND REPLACEMENT OF FIVE
MONTEREY PINE TREES LOCATED AT 10121 N. FOOTHILL BLVD
SECTION I: PROJECT DESCRIPTION
Application No.: TR-2014-08
Applicant: Tate Development
Property Owner: Foothill Auto Service & Detail, Inc.
Location: 10121 N. Foothill Boulevard (APN 342-32-070)
SECTION II: FINDINGS FOR TREE REMOVAL PERMIT:
WHEREAS, the Planning Commission of the City of Cupertino received an application for a Tree
Removal Permit as described in Section I. of this Resolution; and
WHEREAS, the Environmental Review Committee has recommended adoption of a Mitigated Negative
Declaration; and
WHEREAS, the necessary public notices have been given as required by the Procedural Ordinance of
the City of Cupertino, and the Planning Commission has held at least one public hearing in regard to
the application; and
WHEREAS, the applicant has met the burden of proof required to support said application; and
WHEREAS, the Planning Commission finds as follows with regard to this application:
a) That the trees are irreversibly diseased, are in danger of falling, can cause potential damage to
existing or proposed essential structures, or interferes with private on-site utility services and
cannot be controlled or remedied through reasonable relocation or modification of the structure or
utility services;
The City’s consulting arborist has determined that the trees proposed for removal are all in conflict with the
proposed new buildings and site improvements, and, given their condition, are not suitable for preservation or
relocation.
b) That the location of the trees restricts the economic enjoyment of the property by severely limiting
the use of property in a manner not typically experienced by owners of similarly zoned and situated
property, and the applicant has demonstrated to the satisfaction of the approval authority that there
are no reasonable alternatives to preserve the tree(s).
Draft Resolution TR-2014-08 April 22, 2014
The City’s consulting arborist has determined that the trees proposed for removal are all in conflict with the
proposed new buildings and site improvements, and, given their condition, are not suitable for preservation or
relocation.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of the initial study, maps, facts, exhibits, testimony and other evidence
submitted in this matter, subject to the conditions which are enumerated in this Resolution beginning on
PAGE 2 thereof,:
A Mitigated Negative Declaration (Application no. EA-2014-01) is hereby recommended for adoption;
and the application for a Tree Removal Permit, Application no. TR-2014-08 is hereby recommended for
approval and that the subconclusions upon which the findings and conditions specified in this resolution
are based and contained in the Public Hearing record concerning Application no. DP-2014-02 as set forth
in the Minutes of Planning Commission Meeting of April 22, 2014, and are incorporated by reference as
though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT.
Planning Division:
1. APPROVED EXHIBITS
Approval recommendation is based on the plan set received April 16, 2014 consisting of 39 sheets
labeled A0-A19, AL1.1-AL1-4, C1-C5, TM, L0, L0.1, L0.2, L1, L2, L2.1, and L2.2, entitled, “Foothill
Blvd PUD, 10121 N Foothill Blvd., Cupertino, CA 95014,” drawn by Modative, SMP Engineers, and
Miriam Rainville; and the City’s consulting arborist report entitled, “An Evaluation of the Existing
Trees – 10121 N. Foothill Boulevard, Cupertino, California,” prepared by Michael Bench, Registered
Consulting Arborist # WE-1897 dated March 22, 2013 except as may be amended by conditions in
this resolution.
2. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. Z-2014-01, TM-2014-01, ASA-2014-02, and DP-2014-
02 shall be applicable to this approval.
3. TREE REPLACEMENTS AND FINAL PLANTING PLAN
The applicant shall plant replacement trees in accordance with the replacement requirements of the
Protected Tree Ordinance. The trees shall be planted prior to final occupancy of site permits.
The final planting plan shall be reviewed and approved by the Director of Community
Development with consultation by the City Arborist prior to issuance of building permits. The
Director of Community Development shall have the discretion to require additional tree
replacements as deemed necessary. The City Arborist shall confirm that the replacement trees were
planted properly and according to plan prior to final occupancy.
Draft Resolution TR-2014-08 April 22, 2014
4. TREE REPLACEMENT BOND
The applicant shall provide a tree replacement bond in an amount determined by the City Arborist
prior to removals and issuance of demolition and grading permits. The bond shall be returned after
the required tree replacements have been planted and verified by the City Arborist.
5. SCHEDULING OF TREE REMOVALS TO AVOID IMPACTS TO NESTING BIRDS
The project shall implement the following measures to avoid impacts to nesting birds:
a) MM BIO-1.1: Removal of trees on the project site should be scheduled between September and
December (inclusive) to avoid the nesting season for birds and no additional surveys would be
required.
b) MM BIO-1.2: If removal of the trees on-site is planned to take place between January and
August (inclusive), a pre-construction survey for nesting birds shall be conducted by a qualified
ornithologist to identify active nesting raptor or other bird nests that may be disturbed during
project implementation. Between January and April (inclusive) pre-construction surveys shall be
conducted no more than 14 days prior to the initiation of construction activities or tree relocation
or removal. Between May and August (inclusive), pre-construction surveys shall be conducted
no more than thirty (30) days prior to the initiation of these activities. The surveying
ornithologist shall inspect all trees in and immediately adjacent to the construction area for nests.
If an active raptor nest is found in or close enough to the construction area to be disturbed by
these activities, the ornithologist shall, in consultation with the State of California, Department of
Fish & Game (CDFG), designate a construction-free buffer zone (typically 250 feet) around the
nest until the end of the nesting activity. Buffers for other birds shall be determined by the
ornithologist.
c) MM BIO-1.3: A report summarizing the results of the pre-construction survey and any
designated buffer zones or protection measures for tree nesting birds shall be submitted to the
Community Development Director prior to the start of grading or tree removal.
6. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies with regard to the
proposed project for additional conditions and requirements. Any misrepresentation of any
submitted data may invalidate an approval by the Community Development Department.
7. INDEMNIFICATION
To the extent permitted by law, the Applicant shall indemnify and hold harmless the City, its City
Council, its officers, employees and agents (the “indemnified parties”) from and against any claim,
action, or proceeding brought by a third party against the indemnified parties and the applicant to
attack, set aside, or void this ordinance or any permit or approval authorized hereby for the project,
including (without limitation) reimbursing the City its actual attorneys’ fees and costs incurred in
defense of the litigation. The City may, in its sole discretion, elect to defend any such action with
attorneys of its choice.
8. 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
Draft Resolution TR-2014-08 April 22, 2014
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.
PASSED AND ADOPTED this 22nd day of April, 2014, Regular Meeting of the Planning Commission of
the City of Cupertino, State of California, by the following roll call vote:
AYES: COMMISSIONERS:
NOES: COMMISSIONERS:
ABSTAIN: COMMISSIONERS:
ABSENT: COMMISSIONERS:
ATTEST: APPROVED:
Gary Chao Paul Brophy, Chair
Assist. Director of Community Development Planning Commission
G:\Planning\PDREPORT\RES\2014\TR-2014-08 res.doc