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R-2017-33 RM-2017-39 Action Letter.pdf 6-25-19CITY OF IM CUPERTINO June 25, 2019 Francis Kun P.O. Box 2169 Gilroy, CA 95021 COMMUNITY DEVELOPMENT DEPARTMENT PLANNING DIVISION CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333 CUPERTINO.ORG SUBJECT: TWO STORY PERMIT AND MINOR RESIDENTIAL PERMIT ACTION LETTER — Application R-2017-33, RM-2017-39 This letter confirms the decision of the Director of Community Development given on June 25, 2019, approving a Residential Design Review Permit (R-2017-33) to allow a 520 sq. ft. first -story addition and a new 821 sq. ft. second -story with a second -story setback less than 15 feet, and a Minor Residential Permit (RM-2017-39) to allow for a second -story balcony located at 21865 San Fernando Avenue, with the following conditions: 1. APPROVED EXHIBITS The approval is based on a plan set entitled, "Residential Remodel and Addition for Mr. and Mrs. David and Yiting Tsai, 21865 San Fernando Avenue, Cupertino, CA 95014," consisting of 16 sheets labeled "A-1 through A-9, CB, FAD, L-1, L-2, and Boundary Topographic Survey Map" and the supplemental privacy screening documents consisting of two pages entitled "Existing Privacy Screening" and "Alternative Privacy Screening Used," except as may be amended by conditions in this resolution. 2. ANNOTATION OF THE CONDITIONS OF APPROVAL The conditions of approval set forth shall be incorporated into and annotated on the building plans. 3. ACCURACY OF THE PROTECT PLANS The applicant/property owner is responsible for verifying all pertinent property data including, but not limited to, property boundary locations, building setbacks, property size, building square footage, any relevant easements and/or construction records. Any misrepresentation of property data may invalidate this approval and may require additional review. 21865 San Fernando Page 2 of 9 R-2017-33; RM-2017-39 4. COMPLIANCE WITH PUBLIC WORKS CONFIRMATION FORM The project shall comply with the requirements indicated on the Public Works Confirmation form dated October 17, 2017, including, but not limited to, dedications, easements, off -site improvements, undergrounding of utilities, all necessary agreements, and utility installations/relocations as deemed necessary by the Director of Public Works and required for public health and safety. The Public Works Confirmation is a preliminary review, and is not an exhaustive review of the subject development. Additional requirements may be established and implemented during the construction permitting process. The project construction plans shall address these requirements with the construction permit submittal, and all required improvements shall be completed to the satisfaction of the Director of Public Works prior to final occupancy. 5. DRIVEWAY GATE FENCE EXCEPTION The electronic driveway gate fence indicated on the plans is not approved. Either a Fence Exception Permit must be obtained in compliance with Chapter 19.48: Fences, of the Cupertino Municipal Code, prior to issuance of any building permits indicating the fence or it must be eliminated/removed. 6. ACCESORY BUILDINGS/STRUCTURES The location of all existing and proposed accessory buildings and/or structures shall be indicated on building permit plans and shall comply with Chapter 19.100, Accessory Buildings/Structures, of the Cupertino Municipal Code for review and approval prior to issuance of building permits. 7. EXTERIOR BUILDING MATERIALS/TREATMENTS The final building exterior plan shall closely resemble the details shown on the original approved plans. Final building exterior treatment plan (including but not limited to details on exterior color, materials, architectural treatments, doors, windows, lighting fixtures, and/or embellishments) shall be reviewed and approved by the Director of Community Development prior to issuance of building permits to ensure quality and consistency. Any exterior changes determined to be substantial by the Director of Community Development shall either require a modification to this permit or a new permit based on the extent of the change. 8. FRONT YARD TREE The applicant shall indicate on site and landscape plans the location of a front yard tree to be located within the front yard setback area in order to screen the massing of the second story. The front yard tree shall be a minimum 24-inch box and 6 feet planted height and otherwise be consistent with the City's requirements. 9. FRONT YARD TREE COVENANT The property owner shall record a covenant on this property with the Santa Clara County Recorder's Office that requires the retention and maintenance of the required front yard tree. The precise language will be subject to approval by the Director of 21865 San Fernando R-2017-33; RM-2017-39 Page 3 of 9 Community Development. Proof of recordation must be submitted to the Community Development Department prior to final occupancy of the residence. 10. PRIVACY PLANTING The final privacy planting plan shall be reviewed and approved by the Planning Division prior to issuance of building permits. The variety, size, and planting distance shall be consistent with the City's requirements. 11. PRIVACY PROTECTION COVENANT The property owner shall record a covenant on this property to inform future property owners of the privacy protection measures and tree protection requirements consistent with the R-1 Ordinance, for all windows with views into neighboring yards and a sill height that is 5 feet or less from the second story finished floor. The precise language will be subject to approval by the Director of Community Development. Proof of recordation must be submitted to the Community Development Department prior to final occupancy of the residence. 12. LANDSCAPE PROTECT SUBMITTAL Prior to issuance of building permits, the applicant shall submit a full Landscape Documentation Package, per sections 14.15.050 A, B, C, and D of the Landscape Ordinance, for projects with landscape area 500 square feet or more or elect to submit a Prescriptive Compliance Application per sections 14.15.040 A, B, and C for projects with landscape area between 500 square feet and 2,500 square feet. The Landscape Documentation Package or Prescriptive Compliance Application shall be reviewed and approved to the satisfaction of the Director of Community Development prior to issuance of building permits, and additional requirements per sections 14.15.040 D, E, F, and G or 14.15.050 E, F, G, H, and I will be required to be reviewed and approved prior to final inspections. 13. 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. 14. DEMOLITION REQUIREMENTS All demolished building and site materials shall be recycled to the maximum extent feasible subject to the Building Official. The applicant shall provide evidence that materials were recycled prior to issuance of final demolition permits. 15. DUST CONTROL The following construction practices shall be implemented during all phases of construction for the proposed project to prevent visible dust emissions from leaving the site: a. Water all active construction areas at least twice daily and more often during windy periods to prevent visible dust from leaving the site; active areas adjacent 21865 San Fernando R-2017-33; RM-2017-39 Page 4 of 9 to windy periods; active areas adjacent to existing land uses shall be kept damp at all times, or shall be treated with non -toxic stabilizers or dust palliatives. b. Cover all trucks hauling soil, sand, and other loose materials or require all trucks to maintain at least 2 feet of freeboard; c. Pave, apply water at least three times daily, or apply (non -toxic) soil stabilizers on all unpaved access roads, parking areas and staging areas at construction sites. d. Sweep streets daily, or more often if necessary (preferably with water sweepers) if visible soil material is carried onto adjacent public streets. e. The applicant shall incorporate the City's construction best management practices into the building permit plan set. 16. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS The applicant shall comply with the following grading and construction hours and noise limit requirements unless otherwise indicated. a. All grading activities shall be limited to the dry season (April 15 to October 1), unless permitted otherwise by the Director of Public works. b. Construction hours and noise limits shall be compliant with all requirements of Chapter 10.48 of the Cupertino Municipal Code. c. Grading, street construction, underground utility and demolition hours for work done more than 750 feet away from residential areas shall be limited to Monday through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to 6 p.m. Grading, street construction, demolition or underground utility work within 750 feet of residential areas shall not occur on Saturdays, Sundays, holidays, and during the nighttime period as defined in Section 10.48.053(b) of the Municipal Code. d. Construction activities shall be limited to Monday through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to 6 p.m. Construction activities are not allowed on holidays as defined in Chapter 10.48 of the Municipal Code. Night time construction is allowed if compliant with nighttime standards of Section 10.48 of the Cupertino Municipal Code. e. Rules and regulations pertaining to all construction activities and limitations identified in this permit, along with the name and telephone number of an applicant appointed disturbance coordinator, shall be posted in a prominent location at the entrance to the job site. f. The applicant shall be responsible for educating all contractors and subcontractors of said construction restrictions. 17. INDEMNIFICATION Except as otherwise prohibited by law, the applicant shall indemnify and hold harmless the City, its City Council, and its officers, employees and agents (collectively, the "indemnified parties") from and against any claim, action, or proceeding brought by a third party against one or more of the indemnified parties or one or more of the indemnified parties and the applicant to attack, set aside, or void this Resolution 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 21865 San Fernando R-2017-33; RM-2017-39 Page 5 of 9 of the litigation. The applicant shall pay such attorneys' fees and costs within 30 days following receipt of invoices from City. Such attorneys' fees and costs shall include amounts paid to counsel not otherwise employed as City staff and shall include City Attorney time and overhead costs and other City staff overhead costs and any costs directly related to the litigation reasonably incurred by City. 18. 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. Please note that if this permit is not vested within a year, it shall expire on June 25, 2020. A letter signed by 11 neighbors was submitted on November 11, 2017 while the project was being reviewed. The letter outlined several objections to the project, including concerns about privacy, harmonious design, obstruction of views, potential of the home to be converted to multiple rental units, and impacts to surrounding property values. Staff met several times with property owners in the neighborhood and in one-on-one meetings at City Hall with adjacent property owners between November 2017 and May 2019. The property owner also met with four neighbors on November 17, 2017 to discuss their concerns. As a potential solution to the concerns identified at the meetings, the property owner made the following changes to the plans: ■ Reduced the area of the second -story balcony by approximately 235 sq. ft. by increasing the rear -yard setback of the second -story balcony from 40' to 60'-3" (minimum required setback is 20') and increasing the side -yard setback of the second - story balcony to 18-9" (minimum required setback is 15'); ■ Removed previously proposed exterior stairs to the second -story balcony; ■ Increased the second -story rear -yard setback from 64' to 80'-9", where the minimum required setback is 25'; ■ Increased the first -floor rear -yard setback from 40' to 48'; and ■ Reduced the proposed three -car (653 sq. ft.) garage to a two -car (498.5 sq. ft.) garage. Following receipt of the updated plans and determining that the plans are compliant with the R1 zoning ordinance, staff initiated the required 14-day comment period per the Municipal Code on May 1, 2019. During the comment period, multiple written comments were received, including one email from an adjacent property owner and two letters from adjacent property owners. A letter signed by 35 neighbors (including the three persons that sent separate communication) was also submitted during the comment period. In 21865 San Fernando R-2017-33; RM-2017-39 Page 6 of 9 addition to the written comments, staff has had multiple meetings during the comment period with at least five of the property owners to better understand their concerns and to answer their questions. A summary of the comments is below with Staff responses in italics. 1. Tree Removal: An adjacent property owner is requesting that the existing liquid amber tree located in the front southwest corner of the property be removed as it is causing damage to the pipeline and foundation of the adjacent property. A Liquid Amber tree is not considered a Protected Tree per the City's Municipal Code and therefore, a tree removal permit is not required. The property owner has agreed to remove the liquid amber tree. However, this is a private arrangement and outside the scope of the current permits desired. 2. Privacy: The proposed second -story addition and deck will create privacy and security issues. The Single -Family Residential Ordinance requires privacy plantings for all second -story balconies and second -story windows with a sill height below 5 feet that have views into neighboring properties. The property owner is required to install privacy screening plantings along the western, eastern, and northern property lines to comply with this requirement. As a condition of approval for the project, the privacy plantings will be protected by a covenant recorded with the Santa Clara County. The concerned neighbors are aware of this requirement. 3. Carport Design: The pitched -roof of the proposed carport produces a significant intrusion of the backyard views of neighbors. Additionally, the carport is designed in a manner than can easily be closed off without the neighbors' and city's notice, and become interior space. On June 24, 2019, the property owner and applicant submitted plans for a revised carport to address these comments. The revised carport incorporates a flat roofline and reduces the width of the carport posts. Additionally, the applicant has reduced the roof pitch of the carport by approximately 4 feet. A building permit and/or planning entitlement is required for all construction projects. In the event the property owner wishes to enclose the proposed carport, the property owner must apply for a building permit and meet the City's development standards and Building Code. If such a future proposal meets the city's standards, it may be permitted. Should any unpermitted construction take place, the City's Building Division can be notified, which will take appropriate action to resolve the issue. 4. Neighborhood Harmony & Property Values: The proposed expansion will negatively stand out in the neighborhood due to the existing short front -yard setback, the height of the existing first floor, the proposed building length, and the proposed location of the second -story and balcony. Additionally, the architectural design of the proposed expansion does not fit in with the modern design of other 21865 San Fernando R-2017-33; RM-2017-39 Page 7 of 9 recently constructed homes in the neighborhood. The proposed expansion may reduce the property values of surrounding residences because of these factors. The R1 ordinance allows a combined side -yard setback of 25 feet for the second -story. If a project proposes 15 foot second -story side -yard setbacks (total of 30 feet), the project needs to obtain a Two Story Permit. For projects where a combined second -story side -yard setback of 25 feet is proposed, a Residential Design Review Permit is required. The primary difference between the two permits is that for the latter, the project must undergo an architectural peer -review by the City's Consulting Architect for design and neighborhood compatibility. This project requires a Residential Design Review Permit and therefore, an architectural peer -review was conducted. The applicant has revised the project design to better incorporate the new second -story to the existing structure by complying with the architectural consultant's recommendations. Furthermore, having previously met with neighbors prior to submission of the current set of plans, the applicant has decreased the total building length, increased the rear -yard setbacks for the first- and second floors, reduced the total balcony area, and reduced the garage size (see bottom of page 5 for description of changes). Staff has made all the findings that are required for approval of a Residential Design Review Permit and Minor Residential Permit as required, with the conditions for approval identified above, by Cupertino's Municipal Code, Chapter 19.28.140 (A) and (C). 1. The project is consistent with the Cupertino General Plan, any applicable specific plans, zoning ordinances and the purposes of this title. The proposed project is consistent with the General Plan as the project is within the Low Density land use area. There are no applicable specific plans that affect the project. The project has been found to be consistent with the requirements of Cupertino Municipal Code Chapter 19.28 Single Family (R-1) Residential. 2. The granting of the permit will not result in a condition that is detrimental or injurious to property improvements in the vicinity, and will not be detrimental to the public health, safety or welfare. The granting of the permit will not result in a condition that is detrimental or injurious to property improvements in the vicinity, and will not be detrimental to the public health, safety or welfare as the projects is located within the R1-7.5 (Single Family Residential) zoning district, and will be compatible with the surrounding uses of the neighborhood. 3. The proposed project is harmonious in scale and design with the general neighborhood. The proposed project is located in a residential area consisting of single-family homes. The proposed project does not exceed the allowable Floor Area Ratio and does not encroach into the required rear -yard setbacks. The proposed project maintains the single- family home scale compatible with the general neighborhood. 21865 San Fernando Page 8 of 9 R-2017-33; RM-2017-39 4. The project is consistent with the two-story design principles and generally consistent with the single-family residential design guidelines. The proposed project is consistent with the two-story design principles as well as the single-family residential design guidelines through the identification of an architectural style and incorporation of fagade articulation, high quality materials, and appropriate design features. 5. Adverse visual impacts on adjoining properties have been reasonably mitigated. Any potential adverse impacts on adjoining properties have been reasonably mitigated through adherence to the setback requirements and privacy protection measures of the R- 1 Ordinance. Also, please note that an appeal of this decision can be made within fourteen (14) calendar days from the date of this letter (Wednesday, July 10, 2019 at 5:00 p.m.). If an appeal is filed, a public hearing notice will be sent in compliance with the Municipal Code. The appeal will be scheduled before the Planning Commission. Sincerely, Erika Poveda Assistant Planner City of Cupertino Enclosures: Approved Plan Set CC: David and Yiting Tsai, 21865 San Fernando Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21805 Almaden Avenue Cupertino, CA 95014 Property Owner/Current Resident, 21810 Almaden Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21830 Almaden Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21835 Almaden Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21845 Almaden Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21857 Almaden Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21858 Almaden Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21865 Almaden Avenue Cupertino, CA 95014 Property Owner/Current Resident, 21900 Almaden Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21908 Almaden Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21925 Almaden Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 10270 Byrne Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 10284 Byrne Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 10290 Byrne Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 10327 Byrne Avenue, Cupertino, CA 95014 21865 San Fernando R-2017-33; RM-2017-39 Page 9 of 9 Property Owner/Current Resident, 10207 Orange Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 10300 Orange Avenue, Cupertino, CA 95014 Property Owner/Current Resident,10310 Orange Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 10315 Orange Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21795 Olive Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21801 San Fernando Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21811 San Fernando Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21821 San Fernando Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21831 San Fernando Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21841 San Fernando Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21850 San Fernando Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21860 San Fernando Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21861 San Fernando Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21870 San Fernando Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21875 San Fernando Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21905 San Fernando Avenue Cupertino, CA 95014 Property Owner/Current Resident, 21908 San Fernando Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21909 San Fernando Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21914 San Fernando Avenue, Cupertino, CA 95014 Property Owner/Current Resident, 21924 San Fernando Avenue, Cupertino, CA 95014