CC Resolution No. 22-005 Approving the Tree Removal Permit (TR-2018-39)RESOLUTION NO. 22-005
A RESOLUTION OF THE CUPERTINO CITY COUNCIL .
APPROVING OF A TREE REMOVAL PERMIT TO ALLOW THE REMOVAL
AND REPLACMENT OF FOUR (4) PROTECTED TREES TO
ACCOMMODATE THE CONSTRUCTION OF A MIXED-USED
DEVELOPMENT CONSISTING OF EIGHTEEN (18) RESIDENTIAL UNITS
AND 4,500 SQUARE FEET OF COMMERCIAL SPACE LOCATED AT 10625
SOUTH FOOTHILL BOULEVARD (APN: 342-16-087 & 088)
SECTION I: PROTECT DESCRIPTION
Application No.: TR-2018-39
Applicant: Dan Shaw (SCR Enterprises)
Location: 10625 South Foothill Boulevard (APN#s 342-16-087 & 088)
SECTION II: FINDINGS FOR TREE REMOVAL:
WHEREAS, the City of Cupertino received an application for a Development Permit as
described in Section I of this resolution; and
WHEREAS, pursuant to the provisions of the California Environmental Quality Act of
1970 (Public Resources Code Section 21000 et seq.) ("CEQA") and the State CEQA
Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.) ("CEQA
Guidelines"), the City prepared an Initial Study and proposed Mitigated Negative
Declaration ("Project"); and
WHEREAS, on October 28, 2021, the City of Cupertino's Environmental Review
Committee held a duly noticed public hearing to receive public testimony and reviewed
and considered the information contained in the Draft IS/MND, and voted 5-0-0 to
recommend that the City Council adopt the Draft IS/MND (EA-2018-06) and mitigation
measures; and
WHEREAS, on November 23, 2021, the Planning Commission held a duly noticed public
hearing to receive staff's presentation and public testimony, and to consider the
information contained in the IS/MND along with all staff reports, other pertinent
documents, and all written and oral statements received prior to and at the public
hearing, and recommended on a 5-0 vote, based on substantial evidence in the record,
that the City Council adopt the MND, adopt and incorporate into the Project and
implement as conditions of approval all of the mitigation measures for the project that
are identified in the IS/MND, and adopt the Mitigation Monitoring and Reporting
Program for the Project (EA-2018-06); and
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WHEREAS, on November 23, 2021 the Planning Commission recommended on a 5-0 vote
that the City Council approve Zone Map Amendment (Z-2018-02), in substantially
similar form to the Resolution presented (Resolution No. 6938) approve the Vesting
Tentative Map (TM-2018-04), in substantially similar form to the Resolution presented
(Resolution No. 6940), approve the Development Permit (DP-2018-07) in substantially
similar form to the Resolution presented (Resolution No. 6939), approve the Architectural
and Site Approval Permit (ASA-2018-09) in substantially similar form to the Resolution
presented(Resolution No. 6941), approve the Use Permit (U-2018-04) in substantially
similar form to the Resolution presented (Resolution No. 6942), approve the Tree
Removal Permit (TR-2018-39) in substantially similar form to the Resolution presented
(Resolution No. 6943); and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Commission held at least one public hearing in regard to this application, and on January
13, 2022, the City Council held a public hearing to consider the Development Permit; and
WHEREAS, the City Council of the City of Cupertino is the decision-making body for
this Resolution; and
WHEREAS, on January 13, 2022, after consideration of substantial evidence contained in
the entire administrative record, and prior to consideration of the Tree Removal Permit,
the City Council adopted Resolution No. 22-005 adopting and requiring as conditions of
approval all of the mitigation measures for the Project which are within the responsibility
and jurisdiction of the City that are identified in the IS/MND, and adopting the Mitigation
Monitoring and Reporting Program for the Project; and
WHEREAS, the applicant has met the burden of proof required to support the application
for a Tree Removal Permit; and
WHEREAS, the City Council finds as follows with regard to this application:
a) That the location of the trees restricts the economic enjoyment of the property by
severely limiting the use of property in a manner not typically experienced by
owners of similarly zoned and situated property, and the applicant has
demonstrated to the satisfaction of the approval authority that there are no
reasonable alternatives to preserve the tree(s).
In order to accommodate for the new development's residential and mixed-use buildings,
proposed improvements, and parking facilities the existing trees cannot be preserved in their
locations. The applicant proposes replacement trees throughout the site consistent with the
Municipal Code Ordinance requirements and proposes to additional trees and plantings
where tree coverage and privacy plantings are needed.
Re solution No. 22-005
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NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the IS/MND and the Mitigation Monitoring and Reporting
Program for the Project (EA-2018-06), subject to the conditions which are enumerated in
this Resolution beginning on PAGE 3 thereof, and those contained in all other Resolutions
approved for this Project,
The application for a Tree Removal Permit, Application No. TR -2018-39, is hereby
approved, and that the subconclusions upon which the findings and conditions specified
in this Resolution are based are contained in the Public Hearing record concerning
Application No. TR-2018-39 as set forth in the Minutes of the City Council Meeting of
January 13, 2022 Meeting, and are incorporated by reference as though fully set forth
herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set dated September 15, 2020 consisting of 55 sheets
labeled as Canyon Crossings Mixed-Use Development, A0-A6, El.l, Ll.0-L3.l, Cl-
C14, and ST2 prepared by LPMD Architects, TS Civil Engineering, and Reed
Associates, except as may be amended by conditions in this resolution.
2. 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.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. Z-2018-02, TM-2018-04, U-2018-04,
ASA-2018-09, DP-2018-07, and EA-2018-06 shall be applicable to this approval.
4. 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.
Resolution No. 22-005
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5. TREE REPLACEMENT SIZE
The applicant shall provide adequate tree replacements for tr ees proposed to be
removed in conformance with the replacement guidelines per Cupertino
Municipal Code Section 14.18.160. The size of the proposed replacement trees shall
be modified as follows to be consistent with the City's Protected Tree Ordinance
unless deemed infeasible by the City's Consulting Arborist:
a. Diameter of trunk size of removed tree up to 12 inches shall be replaced with
one 24-inch box tree;
b. Over 12 inches and up to 36 inches shall be replaced by two 24-inch box tree or
one 36-inch box tree; and
c. Over 36 inches shall be replaced with one 36-inch box tree.
If it is determined that it is physically not feasible to plant the required
replacements trees, the Applicant may be allowed to pay an appropriate amount
of in-lieu fees upon review and written approval of the Community Development
Director.
6. ARBORIST REVIEW
Prior to building permit issuance, the number, location and species of trees shall
be reviewed and approved by the City in consultation with the City's Consulting
Arborist.
The replacement trees shall be planted prior to building permit final. The
Applicant shall provide the Department of Community Development adequate
documentation, including, but not limited to, photographs, receipts or invoices, to
verify that replacements have been planted. The City's consulting arborist shall
inspect the trees after planting and a report ascertaining the good health of the
trees mentioned above shall be provided prior to issuance of final occupancy.
7. TREE PROTECTION
As part of the demolition or building permit drawings, a tree protection plan shall
be prepared by a certified arborist for the trees to be retained. In addition, the
following measures shall be added to the protection plan:
• For trees to be retained, chain link fencing and other root protection shall
be installed around the dripline of the tree prior to any project site work.
• No parking or vehicle traffic shall be allowed under root zones, unless using
buffers approved by the Project Arborist.
• No trenching within the critical root zone area is allowed. If trenching is
needed in the vicinity of trees to be retained, the City's consulting arborist
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Pa ge s
shall be consulted before any trenching or root cutting beneath the drip line
of the tree.
• Wood chip mulch shall be evenly spread inside the tree projection fence to
a four-inch depth.
• Tree protection conditions shall be posted on the tree protection barriers.
• Retained trees shall be watered to maintain them in good health.
• A covenant on the property shall be recorded that identifies all the
protected trees, prior to final occupancy.
The tree protection measures shall be inspected and approved by the certified
arborist prior to issuance of building permits. The City's consulting arborist shall
inspect the trees to be retained and shall provide reviews prior to issuance of
demolition, grading or building permits. A report ascertaining the good health of
the trees mentioned above shall be provided prior to issuance of final occupancy.
8. PROTECTED TREES
The applicant understands that the replacement trees may not be removed without
a Tree Removal Permit and that they shall be responsible for ensuring the proper
maintenance and care of the trees. The applicant shall also disclose the location
and species of all replacement trees on site upon sale of the property.
9. 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.
10. 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,
Resolution No. 22-005
Page 6
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 ~he 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.
11. 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.
PASS ED AND ADOPTED at a special meeting of the City Council of the City of
Cupertino this 13 th day of January, 2022, by the following vote:
Res olution No. 22-00 5
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Vote Members of the City Council
AYES: Paul, Chao, Moore, Wei, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
ATTEST:
Kirsten Squarcia, City Clerk
Date
Date
1/27/22