CC Reso 20-036 Supplemental letter noting RM-2017-39 resolution condition amendment CITY OF
OFFICE OF THE CITY CLERK
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3223 • FAX: (408) 777-3366
CUPERTINO CUPERTINO.ORG
May 11,2020
Subject: Consider an appeal of the Planning Commission's approval of a Minor
Residential Permit to allow a second-story balcony. (Application:RM-2017-39;Applicant:
Francis Kun (Tsai residence); Project Location: 21865 San Fernando Avenue; A.P.N.: 357-
15-043;Appellant(s): Shayjan Huang and Eric and Cindy Fang)
Condition No. 3 Revision to the Second-Story Deck of Resolution No. 20-036 denying the
appeal of Application RM-2017-39 and upholding the Planning Commission's decision to
approve the application has been amended. Attached is the revised resolution. Please
contact Associate Planner Erika Poveda with any questions at erikap@cupertino.org.
Sincerely,
Kirsten Squarcia
City Clerk
cc: City Attorney, Planning Department
RESOLUTION 20-036
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
DENYING AN APPEAL AND UPHOLDING THE PLANNING COMMISSION'S
DECISION TO ALLOW THE CONSTRUCTION OF A SECOND-STORY BALCONY
AT AN EXISTING SINGLE-FAMILY RESIDENCE LOCATED AT 21865 SAN
FERNANDO AVENUE
SECTION I: PROTECT DESCRIPTION
Application No.: RM-2017-39
Applicant: Francis Kun
Property Owner: David and Yiting Tsai
Appellants: Shayjan Huang and Eric and Cindy Fang
Location: 21865 San Fernando Avenue (APN: 357-15-043)
SECTION II: FINDINGS FOR A MINOR RESIDENTIAL PERMIT:
WHEREAS, the City of Cupertino received an application for a Minor Residential Permit
to allow the construction of a second-story balcony; and
WHEREAS, the project is determined to be categorically exempt from the California
Environmental Quality Act (CEQA) pursuant to Section 15303 of the CEQA Guidelines;
and
WHEREAS, the necessary notices were given and the comment period for the application
was provided as required by the Procedural Ordinance of the City of Cupertino; and
WHEREAS, the Director of Community Development made the findings required under
Section 19.28.140(A) and approved the application with conditions on June 25, 2019; and
WHEREAS, the notice of decision was mailed to the appropriate parties, including the
applicant and any person who contacted City staff with comments during the comment
period, notifying them about the possibility of appealing a project; and
WHEREAS, the Planning Commission of the City of Cupertino received an appeal of the
Community Development Director's approval of the Minor Residential Permit on July
10, 2019; and
WHEREAS, the necessary notices were given as required by the Procedural Ordinance of
the City of Cupertino, and the Planning Commission held at least one public hearing in
regard to the appeal; and
Resolution No.20-036
Page 2
WHEREAS, the Planning Commission made the findings required under Section
19.28.140(A) and approved the application with minor amendments to the conditions of
approval on November 12, 2019; and
WHEREAS, the City Council of the City of Cupertino received an appeal of the Planning
Commission's approval of the Minor Residential Permit on November 26, 2019; and
WHEREAS, the necessary public notices have been given as required by the Procedural
Ordinance of the City of Cupertino, and the City Council has held at least one public
hearing in regard to the appeal; and
WHEREAS, the appellants have not met the burden of proof required to support said
appeal; and
WHEREAS, the City Council finds as follows with regard to this application:
1. The project is consistent with the Cupertino General Plan, any applicable specific
plans, zoning ordinance, and the purposes of the R-1 Ordinance; and
The proposed project is consistent with the existing residential land use designations of the
Cupertino General Plan. There are no applicable specific plans that affect the project. The
project has been found to be consistent with Chapter 19.28, Single-Family Residential (R-1)
Ordinance, of the Cupertino Municipal Code for setbacks, lot coverage, and other applicable
development standards. The R-1 Ordinance allows property owners the ability to construct
second-story balconies as long as either privacy protection trees andlor shrubs are planted as
required by the ordinance. The project complies with the privacy protection plantings as
required by the R-1 Ordinance to ensure that visual impacts to adjacent neighbors are
mitigated.
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; and
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 project is located within the R1-7.5 (Single Family Residential) zoning
district, and will be compatible with the surrounding uses of the neighborhood. The project
meets the building development regulations of the R-1 Ordinance and complies with the
privacy protection measures to ensure that visual impacts to adjacent neighbors are mitigated.
Resolution No.20-036
Page 3
3. The proposed project is harmonious in scale and design with the general
neighborhood; and
The project is located within the R1-7.5 (Single Family Residential) zoning district and will
be compatible with the surrounding uses of the neighborhood. The purpose of the R-1
Ordinance is to enhance the identity of residential neighborhoods, to ensure the provision of
light, air, and a reasonable level of privacy to individual residential parcels, to ensure a
reasonable level of compatibility in scale of structures within the neighborhood,and to reinforce
the predominantly low-intensity setting in the community. The project meets the building
development regulations of the R-1 Ordinance including lot coverage, setbacks and other
applicable development standards. Furthermore, the City Council added Condition #3
requiring that the depth of the second-story deck be reduced to no more than 12'as measured
from the second-story rear wall for a harmonous scale. Overall, the proposed project, as
conditioned, maintains a single-family home scale and is compatible with the general
neighborhood.
4. Adverse visual impacts on adjoining properties have been reasonably mitigated.
Any potential adverse visual impacts on adjoining properties have been reasonably mitigated
through adherence to the setback requirements and privacy protection measures of the R-1
Ordinance. The proposal for 21865 San Fernando Avenue meets, and in some cases exceeds,
all setback requirements for the R1-7.5 zoning district. The project proposes a rear-yard
second-story balcony setback of over 60'where 20'is required.
The R-1 Ordinance allows property owners the ability to construct second-story windows and
balconies as long as privacy protection trees and/or shrubs are planted as required by the
ordinance. The project complies with the privacy screening requirements of the R-1 Ordinance
by providing privacy screening plantings for the second-story balcony along the western,
eastern,and northern property lines. Per the R-1 Ordinance, the objective of privacy protection
plantings is to provide substantial screening within three years of planting. Privacy protection
plantings are considered Protected Trees under the City's Municipal Code (Chapter 14.18)
and are recorded as such with a covenant against the property to inform current and future
property owners about their protected status. Protected trees cannot be removed without
obtaining a tree removal permit and providing replacement plantings, which will be
subsequently recorded as Protected Trees. Furthermore, the Planning Commission amended
Condition #11 to require a minimum 48" balcony railing comprised of materials that provide
sufficient privacy screening.
Resolution No.20-036
Page 4
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony, and other evidence
submitted in this matter, subject to the conditions which are enumerated in this Resolution
beginning on PAGE 4 thereof:
The City Council DENIES the appeal of an application for a Minor Residential Permit(RM-
2017-39) and UPHOLDS the Planning Commission's approval of the Minor Residential
Permit. The City Council also finds 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.RM-2017-39 as set forth in the Minutes of City Council Meeting
of April 21, 2020 and are incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT
DEPT.
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. REVISION TO THE SECOND-STORY DECK
Prior to building permit issuance,the plans shall be revised to indicate that the depth
of the second-story deck shall not exceed 12' as measured from the second-story rear
wall. The proposed width of the deck shall not be increased.
4. 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.
Resolution No.20-036
Page 5
5. 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.
6. 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.
7. 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.
8. 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.
9. 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
Resolution No.20-036
Page 6
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.
10. 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
Community Development. Proof of recordation must be submitted to the
Community Development Department prior to final occupancy of the residence.
11. PRIVACY PLANTING
The final privacy planting plan shall be reviewed and approved by the Planning
Division prior to issuance of building permits. Privacy protection shall include
alternative privacy plantings consistent with the City's requirements and balcony
railing of at least 48",comprised of materials that provide sufficient privacy screening.
12. 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.
13. 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.
14. 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
Resolution No.20-036
Page 7
misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
15. 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.
16. 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
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.
17. 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.
Resolution No.20-036
Page 8
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.
18. 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
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.
19. 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.
PASSED AND ADOPTED this 21st day of April, 2020, at the Regular Meeting of the City
Council of the City of Cupertino, State of California,by the following roll call vote:
Resolution No.20-036
Page 9
Vote Members of the City Council
AYES: Scharf, Paul, Chao, Sinks, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED: i
/s/Steven Scharf
Steven Scharf, Mayor Date
City of Cupertino
ATTEST:
/s/Kirsten Squarcia
Kirsten Squarcia, City Clerk Date