R-2021-005 Action Letter CITY OF
COMMUNITY DEVELOPMENT DEPARTMENT
PLANNING DIVISION
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333
CUPERTINO CUPERTINO.ORG
May 6, 2021
HMC Associates, LLP.
Mike Chen
12280 Saratoga-Sunnyvale Rd. #209
Saratoga, CA 95070
SUBJECT: TWO STORY PERMIT ACTION LETTER-Application R-2021-005
This letter confirms the decision of the Director of Community Development, given on
May 6,2021 approving a Two-Story Permit(R-2021-005)to allow for the construction of a
new 4,835 square-foot two-story residence with a 743 s.f. attached ADU located at 10151
Byrne Avenue,with the following conditions:
1. APPROVED EXHIBITS
The approval is based on a plan set entitled "Das Residence & ADU, 10151 Byrne Ave.,
Cupertino, CA. 95014," consisting of 11 sheets labeled "A-1, A-1.1, A-2, A-2.1, A-3.1, A-
3.2, A-4, C-0, L-1, L-2, and Color Scheme," 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 PROJECT 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 property data may invalidate this approval and may require
additional review.
4. COMPLIANCE WITH PUBLIC WORKS CONFIRMATION FORM
The project shall comply with the requirements indicated on the Public Works
Confirmation form dated September 14, 2021, 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
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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. 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.
6. ATTACHED ACCESORY DWELLING UNIT
A 743 s.f. attached Accessory Dwelling Unit has been approved as a part of this project.
The principal dwelling unit is approved at 4,835 s.f., at a Floor Area Ratio of 32.93%,with
an attached ADU at 743 s.f., allowed per State Law. There shall be no internal connection
between the Accessory Dwelling Unit and the principal dwelling unit throughout the
lifetime of the home, nor shall the Accessory Dwelling unit ever be allowed to converted
to be part of the principal dwelling unit.
7. 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.
8. 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.
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 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
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Development. Proof of recordation must be submitted to the Community Development
Department prior to final occupancy of the residence.
11. 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.
12. 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.
13. 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.
14. DARK SKY ORDINANCE COMPLIANCE
The applicant shall comply with the City's newly adopted Dark Sky Ordinance
regulations prior to issuance of the building permit.
15. BIRD SAFE ORDINANCE COMPLIANCE
The applicant shall comply with the City's newly adopted Bird Safe Ordinance
regulations, as applicable, prior to issuance of the building permit.
16. NESTING BIRDS
Nests of raptors and other birds shall be protected when in active use, as required by
the federal Migratory Bird Treaty Act and the California Department of Fish and
Game Code.
a. Construction and tree removal/pruning activities shall be scheduled to avoid the
nesting season to the extent feasible. If feasible,tree removal and/or pruning shall
be completed before the start of the nesting season to help preclude nesting. The
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nesting season for most birds and raptors in the San Francisco Bay area extends
from February 1 through August 31. Preconstruction surveys (described below)
are not required for tree removal or construction activities outside the nesting
period.
b. If construction activities and any required tree removal occur during the nesting
season (February 1 and August 31), a qualified ornithologist shall be required to
conduct surveys prior to tree removal or construction activities. Preconstruction
surveys shall be conducted no more than 14 days prior to the start of tree removal,
pruning or construction. Preconstruction surveys shall be repeated at 14-day
intervals until construction has been initiated in the area after which surveys can
be stopped. During this survey, the ornithologist shall inspect all trees and other
possible nesting habitats in and immediately adjacent to the construction areas for
nests.
c. If the survey does not identify any nesting birds that would be affected by
construction activities, no further mitigation is required. If an active nest
containing viable eggs or young birds is found sufficiently close to work areas to
be disturbed by these activities,their locations shall be documented and protective
measures implemented under the direction of the qualified ornithologist until the
nests no longer contain eggs or young birds.
d. Protective measures shall include establishment of clearly delineated exclusion
zones(i.e.demarcated by identifiable fencing,such as orange construction fencing
or equivalent) around each nest location as determined by the qualified
ornithologist, taking into account the species of birds nesting, their tolerance for
disturbance and proximity to existing development. In general, exclusion zones
shall be a minimum of 300 feet for raptors and 75 feet for passerines and other
birds. The active nest within an exclusion zone shall be monitored on a weekly
basis throughout the nesting season to identify signs of disturbance and confirm
nesting status. The radius of an exclusion zone may be increased by the qualified
biologist, if project activities are determined to be adversely affecting the nesting
birds. Exclusion zones may be reduced by the qualified biologist only in
consultation with California Department of Fish and Wildlife. The protection
measures and buffers shall remain in effect until the young have left the nest and
are foraging independently or the nest is no longer active.
e. A final report on nesting birds and raptors,including survey methodology,survey
date(s), map of identified active nests (if any), and protection measures (if
required), shall be submitted to the Planning Manager, through the building
permit review process, and be completed to the satisfaction of the Community
Development Director prior to the start of grading.
17. 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
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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.
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.
i) The applicant shall incorporate the City's construction best management practices
into the building permit plan set.
18. 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.
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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
19. INDEMNIFICATION
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 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.
20. NOTICE OF FEES,DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
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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 May 6,2022.
Staff has made all the findings that are required for approval of a Two-Story Permit and
Minor Residential Permit as required and no additional conditions were placed as a
condition for approval by Cupertino's Municipal Code, Chapter 19.28.140 (B).
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 R1-8 (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 maintains the single-family home scale found compatible with the
general neighborhood.
4. Adverse visual impacts on adjoining properties have been reasonably mitigated.
Any potential adverse impacts on adjoining properties have been reasonably mitigated
through the privacy protection plantings and installation of a front-yard tree as required
by 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 (Thursday, May 20, 2021 at 5:00 p.m.). If this
happens,you will be notified of a public hearing,which will be scheduled before the
Planning Commission. Please find a copy of the appeal form attached for your
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convenience and to ensure your health and safety during the COVID pandemic (also
available online at: www.cul2ertino.org/121anningforms.) The completed appeal form and
filing fee must be received by the deadline to appeal and may be submitted in one of the
following ways:
1. Preferred:Email the completed form to ciiyclerk@cupertino.org and call(408)
777-3223 between 7:30AM-5:30PM (M-Th) and 7:30AM-4:30PM(F) to arrange
for payment by credit card.
2. Other options:
a. Mail the completed form and a check in the amount of$325 to Attn: City
Clerk, City of Cupertino, 10300 Torre Avenue, CA 95014.
b. Obtain an appointment to file the appeal by contacting the City Clerk by
email or phone(see contact information above).
Please contact the City Clerk's office for additional guidance and instructions on how to
file.
Sincerely,
Lauren Ninkovich
Assistant Planner
City of Cupertino
Enclosures:
Approved Plan Set
CC: Dhanajoy Das and Vidya Rajput, 10151 Byrne Ave, Cupertino, CA 95014