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R-2021-013, RM-2021-011 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 August 6, 2021 Barzin Keyhankhadiv 1384 Bryan Ave San Jose, CA 95118 SUBJECT: TWO STORY PERMIT AND MINOR RESIDENTIAL PERMIT ACTION LETTER—Application R-2021-013,RM-2021-011 This letter confirms the decision of the Director of Community Development, given on August 6, 2021 approving a Two-Story Permit (R-2021-013) to allow for the construction of a new 2,684 sq. ft. two-story single family residence with an attached 478 square-foot junior accessory dwelling unit and a Minor Residential Permit(RM-2021-011)to allow for a new second-story rear-facing balcony at 18901 Tuggle Avenue, with the following conditions: 1. APPROVED EXHIBITS The approval is based on a plan set entitled "Custom House For: Lukesh Sharma 18901 Tuggle Ave. Cupertino,CA 95014(APN:375-33-063)",consisting of 20 sheets labeled"A0, Al,A2, A3,A4, A5,A6,A7,A8, C1, C2, C3, C4, C5, C6,L1,L2,L3,MB, and T1," 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 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 February 25, 2021, including, but not limited to, dedications, easements, off-site improvements, undergrounding of utilities, all necessary agreements, 18901 Tuggle Ave Page 2 of 9 R-2021-013,RM-2021-011 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. 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. 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. 7. 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. 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 Community Development. Proof of recordation must be submitted to the Community Development Department prior to final occupancy of the residence. 10. 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 18901 Tuggle Ave Page 3 of 9 R-2021-013,RM-2021-011 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. 11. JUNIOR ACCESSORY DWELLING UNIT COVENANT Prior to Final Occupancy, the applicant/property owner shall record a Junior Accessory Dwelling Unit (JADU) Deed Restriction Covenant, expressly enforceable against future purchasers, containing the following: (a) A prohibition on the sale of the JADU separate from the single-family residence, and (b) A restriction on the size and attributes of the JADU to conform to Cupertino Municipal Code Chapter 19.112 Accessory Dwelling Units. Please contact the Planning Division to obtain the draft template of the covenant and for the completed covenant to be reviewed and approved to the satisfaction of the Planning Division. 12. DARK SKY COMPLIANCE Prior to issuance of Building-Permits, the applicant/property owner shall submit final plans in compliance with the approved lighting plans to comply with development standards of Cupertino Municipal Code Section 19.102.040 Outdoor Lighting Requirements. In the event changes are proposed from the approved plans, said changes must be reviewed and approved by the Director of Community Development or their designee. The applicant shall provide all documentation required to determine compliance with the Municipal Code. 13. 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. 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 18901 Tuggle Ave Page 4 of 9 R-2021-013,RM-2021-011 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. 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. 16. 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. 18901 Tuggle Ave Page 5 of 9 R-2021-013,RM-2021-011 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 17. 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. 18901 Tuggle Ave Page 6 of 9 R-2021-013,RM-2021-011 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. 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 August 3, 2022. Staff received following public comment from one adjacent property owner (staff's response is in italics): • The property owner expressed concerns about potential privacy impacts from the proposed second-story rear balcony and the proposed removal of two existing Persimmon trees. Staff recorded the public comment, shared the comment with the applicant, and responded to the commenter. The commentor requested that the landscape design be modified to retain the existing persimmon trees and revise the landscape plan accordingly. The applicant reviewed the proposed request to modify the privacy planting plan and has agreed to retain the two existing persimmon trees on-site as requested by the commentor. The revisions are included on the updated plan set as shown in the approved drawings titled as L1 of Condition No. 1. Furthermore, the applicant/property owner shall record a privacy planting covenant with the County of Santa Clara which would consider the retained permission trees as part of the protected privacy planting plan of the project approval.Additionally,staff has received a privacy protection modification form from the commentor to request that the landscape plan be revised and retain the existing persimmon trees on-site. This privacy protection modification form will be included as part of the planning permit project approval. 18901 Tuggle Ave Page 7 of 9 R-2021-013,RM-2021-011 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 (A) and (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. The project was reviewed by the City's consulting design review team and modifications as requested by the design review team were incorporated in the updated elevation drawings of Sheet A4 & A5 of the approved plan set as referenced in Condition No. 1. Staff has reviewed the design modifications and they are consistent with the Residential Design Guidelines for two story homes pursuant to Cupertino Municipal Code Chapter 19.28 Single Family (R-1) Residential Zoning District. 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 R1-5 (Single Family Residential) zoning district and will be compatible with the surrounding uses of the neighborhood. The project design was reviewed by the City's consulting design review team and the applicant prepared adequate modifications to meet the design criteria of the Residential Design Guidelines of Cupertino Municipal Code Chapter 19.28 Single Family (R-1) Residential. Thus, the granting of a new two-story home would not result in a condition that would be found to be detrimental or injurious to property improvements in the vicinity,nor detrimental to the public health, safety or welfare. 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. The project was reviewed by the City's consulting design review team and modifications as requested by the design review team were incorporated in the updated elevation drawings of Sheet A4 & A5 of the approved plan set as referenced in Condition No. 1.Staff has reviewed the design modifications and they are consistent with the Residential Design Guidelines for two story homes pursuant to Cupertino Municipal Code Chapter 19.28 Single Family (R-1) Residential Zoning District. The design is compatible with the surrounding neighborhood, in that it provides similar architectural elements including stone ledgestone wrapped along the base of the front elevation,wood window trims, modern garage door with standard aluminum frame and frosted glass, bronze window frames, and a neutral color scheme for the fagade of the residence. 18901 Tuggle Ave Page 8 of 9 R-2021-013,RM-2021-011 Therefore,the proposed project has demonstrated that it will be developed as harmonious in scale and design 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. As requested by the neighboring property at the rear of the subject parcel, there are two persimmon trees that will remain on-site and serve as privacy protection.The property owner has completed a waiver to request the modification to the planting plan and the Planning Division will retain this with the project approval. Additionally, the persimmon trees will be protected as they are considered privacy plantings per the approval. The remainder of the viewsheds have been reasonably mitigated by additional privacy plantings as shown on the approved planting plan titled L1. Therefore, the adverse visual impacts on adjoining properties have been reasonably mitigated. Also, please note that an appeal of this decision can be made within fourteen (14) calendar days from the date of this letter (Friday, August 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 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 cityclerk@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$344 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, /s/ Brianne Reyes Associate Planner City of Cupertino Enclosures: Approved Plan Set 18901 Tuggle Ave Page 9 of 9 R-2021-013,RM-2021-011 CC: Lokesh Sharma,2278 Calabazas Blvd.,Santa Clara,CA 95051 Adrienne Harber, 18900 Pendergast Ave.,Cupertino,CA 95014