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Reso 6911M-2020-001 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 RESOLUTION NO. 6911 OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO APPROVING A MODIFICATION TO A USE PERMIT TO ALLOW AN EXPANSION OF OPERATIONS BY INSTALLING TWO HYDROGEN FUELING DISPENSERS AND ACCESSORY UTILITY STRUCTURES TO AN EXISTING GASOLINE STATION LOCATED AT 21350 STEVENS CREEK BLVD. SECTION I: PROTECT DESCRIPTION Application No.: M-2020-001 Applicant: Kristi Kandel Property Owner: BSP Cupertino Union LLC Location: 21530 Stevens Creek Blvd. (APN#357-20-027) SECTION II: FINDINGS FOR A USE PERMIT: WHEREAS, the Planning Commission of the City of Cupertino received an application for a Modification to a Use Permit to consider expanding operations by allowing the installation of two hydrogen fueling dispensers and accessory utility structures and site improvements and landscaping to an existing gasoline fueling station as described in Section I of this Resolution; 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, pursuant to the provisions of the California Environmental Quality Act of 1970 (Public Resources Code section 21000 et seq.) ("CEQA"), together with the State CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.) (hereinafter, "CEQA Guidelines"), the City staff has independently studied the proposed Project and has determined that the Project is exempt from environmental review pursuant to the categorical exemption in CEQA Guidelines section 15301, 15303, 15304 for the reasons set forth in the staff report dated October 27, 2020 and incorporated herein; and Resolution No. 6911 M-2020-001 October 27, 2020 Page 2 WHEREAS, on October 27, 2020, the Planning Commission held a duly noticed public hearing to receive public testimony on the Project, including the categorical CEQA exemption in CEQA Guidelines sections 15301, 15303, 15304, and reviewed and considered the information contained in the staff report pertaining to the Project, all other pertinent documents, and all written and oral statements received by the Planning Commission at or prior to the public hearing; 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: 1. The proposed development and/or use, 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; The proposed hydrogen fuel dispensers will integrate into the current pattern of gasoline dispensers at an existing gas station. There will be no changes to the existing convenience market or the canopies that shelter patrons from the elements when fueling up. The proposal will require the installation of additional equipment that is in an undeveloped area east of the convenience market; however, the largest structure is setback more than 60' from the public right of way on Stevens Creek Blvd. and is compatible in size, massing, and color of the existing conditions. The other equipment includes a new transformer and a pedestal meter. These items are not very large, located outside any areas of visibility for thru traffic, and are adequately screened. 2. The proposed development and/or use will be located and conducted in a manner in accord with the Cupertino Comprehensive General Plan, underlying zoning regulations, and the purpose of this title and complies with the California Environmental Quality Act (CEQA); The proposed modification to use will be consistent with the underlying zoning and General Plan land use designations as a neighborhood commercial business with this modification to the use permit (U-2011-09). Additionally, the addition of two hydrogen fueling dispensers is aligned with the City's goals in providing infrastructure, projects, and programs that promote alternative fueling and energy efficient modes of transportation. WHEREAS, the Planning Commission is the approval authority for this project and granted the authority by the Municipal Code to exercise its independent judgment, based on the record before it, for purposes of the California Environmental Quality Act; and Resolution No. 6911 M-2020-001 October 27, 2020 Page 3 NOW, THEREFORE, BE IT RESOLVED that the Planning Commission takes the following actions: 1. Exercises its independent judgment and determines that the Project is exempt from CEQA pursuant to CEQA Guidelines sections 15301, 15303, and 15304, based on the following evaluations: • The Class 1 exemption applies to existing facilities that involve negligible or no expansion of existing or former use. The proposed project adds equipment and dispensers that do not increase the floor area of structures and adds less than 600 sq. ft. of lot coverage to an existing gas station. Therefore the proposed addition of hydrogen fueling facilities is less than the threshold for additions to existing structures (Section 15301 (e) 50 percent of the floor area of the structures before the addition, or 2,500 square feet, whichever is less; or 10,000 square feet) and will not significantly expand the use beyond the current use that already exists and will not have a significant effect on the environment. • The Class 3 exemption applies to new construction or conversion of small facilities or structures. The proposed project consists of installation of small new equipment and facilities in small structures that consists of two 7.5' tall hydrogen fueling dispensers that occupy an area of 10 sq. ft. each and accessory hydrogen equipment that occupies 473 sq. ft. on the site. Therefore, the proposed project is within section 15303 and will not have a significant effect on the environment. • The Class 4 exemption applies to minor alterations to land. The proposed project includes sidewalk construction that will remove 2 immature street trees and will involve trenching and backfilling in order to install the equipment. Since the project does not involve the removal of healthy, mature, scenic trees and the area where trenching and backfilling will occur will be restored, the project is within section 15304 and will not have a significant effect on the environment. 2. Approves the application for a Modification to Use Permit, Application no. M-2020-001 subject to the conditions which are enumerated in this Resolution beginning on PAGE 4 thereof. The conclusions and subconclusions upon which the findings and conditions specified in this resolution are based, including those contained in the Public Hearing record concerning Application no. M-2020-001 as set forth in the Minutes of Planning Commission Meeting of October 27, 2020, are hereby incorporated by reference as though fully set forth herein. NOW, THEREFORE, BE IT FURTHER RESOLVED that the foregoing recitals are true and correct and are included herein by reference as findings. Resolution No. 6911 M-2020-001 October 27, 2020 Page 4 SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. APPROVED EXHIBITS Approval is based on the plan set consisting of 9 sheets, labeled Sheets 1 of 9 through 9 of 9 entitled, "FEFUEL Hydrogen Fueling Station," drawn and submitted by Lars Andersen & Associates, Inc. 2. ANNOTATION OF THE CONDITIONS OF APPROVAL The conditions of approval set forth shall be incorporated into and annotated on the first page of the building plans. 3. CONCURRENT APPROVAL CONDITIONS The conditions of approval contained in file no. ASA-2020-002 shall be applicable to this approval. 4. ACCURACY OF PROTECT PLANS The applicant/property owner is responsible to verify 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 any property data may invalidate this approval and may require additional review. 5. PREVIOUS CONDITIONS OF APPROVAL The following previous conditions of approval for the project pertaining to use and architectural/site details shall remain in effect: U-2011-09 All conditions, except that the approval for the 2,580 square foot office building is no longer valid pursuant to DIR-2014-13 ASA-2011-10 All conditions, except that the approved architectural and site details shall be superseded by this approval DIR-2014-13 All conditions DIR-2015-25 All conditions 6. INGRESS/EGRESS EASEMENT Prior to final occupancy, the property owner shall record an appropriate deed restriction and covenant running with the land subject to the approval of the City Attorney, to provide the necessary reciprocal ingress and egress easements to and from the adjoining properties for purposes of pedestrian and vehicular access and cross circulation. The easement language shall provide that construction of any driveways shall be completed to the City's satisfaction at such time as the city can require the adjacent property owners to agree to construct driveway(s) and provide Resolution No. 6911 M-2020-001 October 27, 2020 Page 5 reciprocal ingress/egress easements through a planning permit. The cost of construction of the connection shall be appropriately apportioned. The agreement language including the driveway(s) and easement layout shall be reviewed and approved by the City prior to recordation with the County Recorder's Office. The easement shall contain a provision that it may not be modified or removed without express written approval from the City. 7. BICYCLE PARKING The applicant shall provide bicycle parking and bike racks for the proposed project in accordance with the City's Parking Regulations under Chapter 19.124 of the Cupertino Municipal Code. 4. BUILDING AND FIRE CODE The applicant shall apply for and obtain building permits to allow the construction of the approved project. The applicant shall provide information and plans to allow the Building Official and the Fire Marshall or their designee that the proposed plans comply with Building and Fire Codes in effect at the time of application for a building permit. 5. DEMOLITION REQUIREMENTS All demolished building and site materials shall be recycled to the maximum extent feasible to the satisfaction of the Building Official. The applicant shall provide evidence that materials were recycled prior to issuance of final demolition/grading permits. 6. PRE -CONSTRUCTION MEETING AND CONSTRUCTION MANAGEMENT PLAN Prior to commencement of construction activities, the applicant shall arrange for a pre -construction meeting with the pertinent departments (including, but not limited to, Building, Planning, Public Works, Santa Clara County Fire Department), prior to issuance of grading and/or building permits, to review an applicant -prepared construction management plan including, but not limited to: a. Plan for compliance with conditions of approval b. Plan for public access during work in the public right-of-way c. Construction staging area d. Construction schedule and hours e. Construction phasing plan, if any f. Contractor parking area g. Tree preservation/protection plan h. Site dust, noise and storm run-off management plan i. Emergency/complaint and construction site manager contacts Resolution No. 6911 M-2020-001 October 27, 2020 Page 6 7. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS 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. The applicant shall comply with the above grading and construction hours and noise limit requirements unless otherwise indicated. 8. 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 exposed surfaces areas (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved access roads) 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. All haul trucks transporting soil, sand, or other loose material off -site shall be covered. c. All visible mud or dirt track -out onto adjacent public roads shall be removed using wet power vacuum street sweepers at least once per day. The use of dry power sweeping is prohibited. Resolution No. 6911 M-2020-001 October 27, 2020 Page 7 d. All vehicle speeds on unpaved roads shall be limited to 15 mph. e. All roadways, driveways, and sidewalks to be paved shall be completed as soon as possible. Building pads shall be laid as soon as possible after grading unless seeding or soil binders are used. f. Idling times shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to 5 minutes (as required by the California airborne toxics control measure Title 13, Section 2485 of California Code of Regulations [CCR]). Clear signage shall be provided for construction workers at all access points. g. All construction equipment shall be maintained and properly tuned in accordance with manufacturer's specifications. All equipment shall be checked by a certified mechanic and determined to be running in proper condition prior to operation. h. Post a publicly visible sign with the telephone number and person to contact at the Lead Agency regarding dust complaints. This person shall respond and take corrective action within 48 hours. The Air District's phone number shall also be visible to ensure compliance with applicable regulations. The applicant shall incorporate the City's construction best management practices into the building permit plan set prior to any grading, excavation, foundation or building permit issuance. 9. SIGNAGE Signage is not approved with this use permit application. Any additional future signage shall conform to the City Sign Code and Monta Vista Design Guidelines. 10. SITE IMPROVEMENTS All proposed site improvements shall be completed prior to final occupancy of any structures/uses approved in conjunction with the project. 11. 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. 12. INDEMNIFICATION AND LIMITATION OF LIABILITY As part of the application, to the fullest extent permitted by law, the applicant shall agree to indemnify, defend with the attorneys of the City's choice, and hold harmless the City, its City Council, and its officers, employees, and agents (collectively, the "indemnified parties") from and against any liability, claim, action, cause of action, suit, damages, judgment, lien, levy, or proceeding (collectively Resolution No. 6911 M-2020-001 October 27, 2020 Page 8 referred to as "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 related to any Ordinance, Resolution, or action approving the project, the related entitlements, environmental review documents, finding or determinations, or any other permit or approval authorized for the project. The indemnification shall include but not be limited to damages, fees, and costs awarded against the City, if any, and cost of suit, attorneys' fees, and other costs, liabilities, and expenses incurred in connection with such proceeding whether incurred by the Applicant, the City, or the parties initiating or bringing such proceeding. The applicant shall agree to (without limitation) reimburse the City its actual attorneys' fees and costs incurred in defense of the litigation. Such attorneys' fees and costs shall include amounts paid to the City's outside counsel 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. The applicant shall likewise agree to indemnify, defend, and hold harmless the indemnified parties from and against any damages, attorneys' fees, or costs awards, including attorneys' fees awarded under Code of Civil Procedure section 1021.5, assessed or awarded against the indemnified parties. The Applicant shall cooperate with the City to enter a Reimbursement Agreement to govern any such reimbursement. The Applicant shall agree to (without limitation) reimburse the City for all costs incurred in additional investigation or study of, or for supplementing, redrafting, revising, or amending, any document (such as an Environmental Impact Report, negative declaration, specific plan, or general plan amendment) if made necessary by proceedings challenging the project approvals and related environmental review, if the applicant desires to continue to pursue the project. The Applicant shall agree that the City shall have no liability to the Applicant for business interruption, punitive, speculative, or consequential damages. 13. 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. Resolution No. 6911 M-2020-001 October 27, 2020 Page 9 SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS DEPARTMENT 10. STREET IMPROVEMENTS & DEDICATION Roadway improvements along the project will be required to the satisfaction of the Director of Public Works. Street improvements, grading and drainage plans must be completed and approved prior to issuance of Building Permit. Street improvements may include, but not be limited to, new 5' wide sidewalk along Bubb Rd and upgrade two driveway approaches to City Standard Detail 1-21. Any existing on -site utilities that are within the public right of way shall be relocated. All improvements must be completed and accepted by the City prior to final building permit acceptance. 11. ACCEPTANCE OF PROPERTY RIGHTS The Public Works Director, or his/her designee, shall have the authority to accept all offers of dedications, easements, quitclaims and other property rights and interests on behalf of the City. 12. PEDESTRIAN AND BICYCLE IMPROVEMENTS Developer shall provide pedestrian and bicycle related improvements (e.g. walkway and bicycle racks, etc.) consistent with the Cupertino Bicycle Transportation Plan and the Pedestrian Transportation Guidelines, and as approved by the Director of Public Works. 13. GRADING & DRAINAGE Drainage shall be provided to the satisfaction of the Director of Public Works. The storm drain system may include, but is not limited to bioretention basins, inlet filters, storm lateral, and measures to reduce the amount of runoff from the site and improve water quality. All storm drain inlets shall be clearly marked with the words "No Dumping — Flows to Creek" using permanently affixed metal medallions or equivalent, as approved by the Environmental Programs Division. 14. C.3 REQUIREMENTS C.3 regulated improvements are required for all projects creating and/or replacing 5,000 S.F. or more of impervious surface (collectively over the entire site including previous projects). At building permit stage, submit the C.3 Impervious Surface Form for City's record. The developer must include the use and maintenance of site design, source control and storm water treatment Best Management Practices (BMPs). Resolution No. 6911 M-2020-001 October 27, 2020 Page 10 15. IMPROVEMENT AGREEMENT The project developer shall enter into a development agreement with the City of Cupertino providing for payment of fees, including but not limited to checking and inspection fees, storm drain fees, park dedication fees and fees for under grounding of utilities. Said agreement and fees shall be executed and paid prior to issuance of Building permit. Fees: a. Checking & Inspection Fees: b. Storm Drainage Fee: c. Transportation Impact Fee: d. Encroachment Permit Fee: Bonds: a. Faithful Performance Bond: b. Labor & Material Bond: Per current fee schedule: $891 Per current fee schedule: $821 Per current fee schedule: $81,874 (based on 13 trips X $6,298 per PM peak -hour trips generated) Per current fee schedule: $2,638 100% of Off -site and On -site Improvements 100% of Off -site and On -site Improvement The fees described above are imposed based upon the current fee schedule adopted by the City Council. However, the fees imposed herein may be modified at the time issuance of a building permit in the event of said change or changes, the fees changed at that time will reflect the then current fee schedule. 16. TRANSPORTATION IMPACT FEES The Project is subject to the payment of Transportation Impact Fees under City's Transportation Impact Fee Program (Chapter 14.02 of the Cupertino Municipal Code). 17. UNDERGROUND UTILITIES Developer shall comply with the requirements of the Underground Utilities Ordinance No. 331 and other related Ordinances and regulations of the City of Cupertino, and shall coordinate with affected utility providers for installation of underground utility devices. Developer shall submit detailed plans showing utility underground provisions. Said plans shall be subject to prior approval of the affected Utility provider and the Director of Public Works. 18. TRANSFORMERS & CABINETS Electrical transformers, telephone cabinets and similar equipment shall be placed in underground vaults. The developer must receive written approval from both the Public Works Department and the Community Development Department prior to installation of any above ground equipment. Should above ground equipment be permitted by the City, equipment and enclosures shall be screened with fencing and Resolution No. 6911 M-2020-001 October 27, 2020 Page 11 landscaping such that said equipment is not visible from public street areas, as determined by the Community Development Department. 19. BEST MANAGEMENT PRACTICES Utilize Best Management Practices (BMPs), as required by the State Water Resources Control Board, for construction activity, which disturbs soil. BMP plans shall be included in grading and street improvement plans. 20. EROSION CONTROL PLAN Developer must provide an approved erosion control plan by a Registered Civil Engineer. This plan should include all erosion control measures used to retain materials on site. Erosion control notes shall be stated on the plans. 21. WORK SCHEDULE Every 6 months, the developer shall submit a work schedule to the City to show the timetable for all grading/erosion control work in conjunction with this project. 22. TRAFFIC CONTROL PLAN The developer must submit a traffic control plan by a Registered Traffic Engineer to be approved by the City. The plan shall include a temporary traffic control plan for work in the right of way as well as a routing plan for all vehicles used during construction. All traffic control signs must be reviewed and approved by the City prior to commencement of work. The City has adopted Manual on Uniform Traffic Control Devices (MUTCD) standards for all signage and striping work throughout the City. SECTION V: CONDITIONS ADMINISTERED BY THE ENVIRONMENTAL PROGRAMS DIVISION 23. REVISIONS TO PLANS The project will be reviewed at the time of building permit submittal and there may be additional requirements related to stormwater pollutant management and solid waste diversion and management. Please see comment 4 below and address each item as it relates to your project. The requirements trigger due to a development/building permit being issued, not due to project scope. If the storm drain inlet trash/hydrocarbon filtering and drain labeling have already been addressed, there will be no further action required; however, please address in your comment response. 24. PROPOSED GRADING Please include with the resubmittal, a topographical site plan for this property clearly identifying the following: 1) total number and location of all storm drain surface inlets (including bioretention and trench drains), 2) location and flow path of Resolution No. 6911 M-2020-001 October 27, 2020 Page 12 all underground storm drain lines, and 3) all connection points to the City storm drain system, adjacent private properties, diversion channels, and creeks, and 4) each storm drain inlet and bioretention overflow must have the specific type of certified full trash capture device/treatment system to be installed identified. 25. SHEET 5- PROPOSED GRADING Due to the County Shelter in Place Order, a pre -comment inspection is unable to be conducted as of the issuance of this comment letter. If the existing storm drain inlets do not currently have full trash capture treatment including hydrocarbon filtration, they will be required as follows: All exterior storm drain inlets (existing and new), including bioretention area overflow catch basins (existing and new) and linear trench drains (existing and new)must be treated with full trash capture systems to prevent litter from entering the City's storm drain system and/or any adjacent creeks or diversion channels. Systems and devices used must be approved by the California State Regional Water Quality Control Board (RWQCB) and selected from the San Francisco Bay RWQCB Certified Full Capture System List of Trash Treatment Control Devices which may be viewed at: https://www.waterboards.ca.gov/water issues/programs/stormwater/trash implementation. html 26. DEVELOPMENT FORMS The applicant and property owner must sign and submit to the Environmental Programs Division, the attached "Environmental Programs Division Conditions of Approval for Tenant Improvements and Development" form. The form may be www.cupertino.org/. reendev SECTION VI: CONDITIONS ADMINISTERED BY THE BUILDING DIVISION 27. REVISIONS TO PLANS Revise the plans to call out the setbacks of the hydrogen equipment to the property lines and provide specifications/listing information for the hydrogen shelter/box. SECTION VII: CONDITIONS ADMINISTERED BY SANTA CLARA COUNTY FIRE DEPT. 28. REVISIONS TO PLANS At the time of building permit submittal, submit a complete and accurate set of plans for the hydrogen storage and dispensing facility showing set -backs to buildings, building openings and property/lot lines. Include all cut -sheets, process piping diagrams, and ancillary equipment. Resolution No. 6911 M-2020-001 October 27, 2020 Page 13 PASSED AND ADOPTED this 27th day of October, 2020, Regular Meeting of the Planning Commission of the City of Cupertino, State of California, by the following roll call vote: AYES NOES: ABSTAIN: ABSENT: ATTEST: COMMISSIONERS: Chair Moore, Vice Chair Wang, Takahashi, Fung, Saxena COMMISSIONERS: none COMMISSIONERS: none COMMISSIONERS: none �N �- for Benjamin Fu Director of Community Development APPROVED: Kitty Moore Chair, Planning Commission R Wang (Acting Chair) For Kitty Moore