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R-2022-004, RM-2022-002 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 March 31,2022 Li Wei 11566 Fallcreek Spring Ct Cupertino, CA 95014 SUBJECT: TWO STORY PERMIT AND MINOR RESIDENTIAL PERMIT ACTION LETTER—Applications R-2022-004,RM-2022-002 This letter confirms the decision of the Director of Community Development, given on March 31, 2022, approving a Two-Story Permit (R-2022-004) to consider construction of a new 2,567 sq. ft. two-story single-family residence and a Minor Residential Permit (RM- 2022-002)to consider a new 149 sq.ft.second-story rear-facing balcony located at 10548 S. Tantau Avenue with the following conditions: 1. APPROVED EXHIBITS The approval is based on a plan set entitled "Wei Tantau Property New Custom Homes, 10548 S.Tantau Ave.,Cupertino,CA 95014",consisting of 17 sheets labeled"A0.1 through AO.5, A2.1, A2.2, A3.1,A3.2, A3.3, GB1, LO through L5, and Topographic Map" 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 January 26, 2022, 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 10548 S.Tantau Ave. Page 2 of 9 R-2022-004,RM-2022-002 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. 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. 7. 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. 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. PRIVACY PLANTING 10548 S.Tantau Ave. Page 3 of 9 R-2022-004,RM-2022-002 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. 11. 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. 12. LANDSCAPE PROJECT 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. 13. AIR QUALITY Prior to issuance of Building Permits, the applicant/property owner shall submit documentation verifying compliance with the Bay Area Air Quality Management District Basic Control Measures included in the latest version of BAAQMD's CEQA Air Quality Guidelines to control fugitive dust during demolition, ground disturbing activities, and/or construction. 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 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 10548 S.Tantau Ave. Page 4 of 9 R-2022-004,RM-2022-002 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. 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 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 10548 S.Tantau Ave. Page 5 of 9 R-2022-004,RM-2022-002 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. NOISE MANAGEMENT DURING CONSTRUCTION At least 10 days prior to commencement of construction activities,the applicant/property owner shall post a sign at the entrance(s)to the job site,clearly visible to the public,which includes permitted construction days and hours, as well as the telephone numbers of the City's and contractor's authorized representatives that are assigned to respond in the event of a noise or vibration complaint.In addition to the posted sign,the project applicant shall send notices of the planned activity by first class mail to off-site businesses and residents within 250 feet of the project site at least 10 days prior to the start of any demolition, ground disturbing, or construction activities. If the authorized contractor's representative receives a complaint, they shall investigate, take appropriate corrective action, and report the action to the City within three business days of receiving the complaint. The applicant shall provide all documentation required to determine compliance with Cupertino Municipal Code Section 17.04.050. 18. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS 10548 S.Tantau Ave. Page 6 of 9 R-2022-004,RM-2022-002 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 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 10548 S.Tantau Ave. Page 7 of 9 R-2022-004,RM-2022-002 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 The Conditions of Project Approval set forth herein may include certain fees, dedication requirements, reservation requirements, and other exactions. Please note that if this permit is not vested within a year, it shall expire on March 31, 2023. Staff received following public comments (staff's response is in italics): ■ A member of the public commented on the design of the proposed home from the notice board rendering, that no comment period deadline was reflected on the notice board, and requested a plan set for review. Staff recorded the public comment, shared the comment with the subject property owners/applicant, and responded to the commenter. Staff indicated that the public comment period had not yet started at the time the comment was received, and that the notice board is subject to review by staff for accuracy before the deadline is finalized and the comment period can begin. As the rendering originally provided on the notice board did not accurately reflect the proposed color palettes, the applicant was asked to revise. A copy of the plan set was also provided to the commenter. ■ A neighboring property owner commented that the proposed rear-facing second- story balcony for the proposed residence will create privacy concerns for his property. He also asked questions regarding privacy protection requirements. Staff recorded the public comment, shared the comment with the subject property owners/applicant,and responded to the commenter. Staff informed the commenter of the City's 10548 S.Tantau Ave. Page 8 of 9 R-2022-004,RM-2022-002 privacy planting requirements per the Single-Family (R-1) Ordinance. The R-1 Ordinance allows for new second-story windows and balconies provided that City-approved evergreen privacy plantings be installed on-site within the privacy viewshed to mitigate privacy impacts to neighboring residential properties. The project will meet this requirement by providing Laurus nobilis trees within the side viewsheds at the maximum spacing distance of 10 feet and at the minimum height of six feet tall at the time of planting. The project is also required to be inspected by City Planning Division staff prior to final occupancy to ensure that all required privacy plantings have been installed properly and meet the Cupertino Code requirements regarding planting location, species type, required height, and spacing. Furthermore, the subject property owner will be required to record a covenant with the Santa Clara County Recorder's Office agreeing to maintain the required privacy plantings on site as protected trees. A copy of the landscape plan was provided to the commenter for reference. 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. 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. 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 installation of privacy protection plantings and a front-yard tree, as well adherence to the setback regulations of 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,April 14,2022 at 5:00 p.m.). If this happens,you will be notified of a public hearing,which will be scheduled before the 10548 S.Tantau Ave. Page 9 of 9 R-2022-004,RM-2022-002 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, Jeffrey Tsumura Associate Planner City of Cupertino Enclosures: Approved Plan Set CC:Kitty Moore,867 Ferngrove Drive,Cupertino,CA 95014 Qing Wang,5169 Shady Avenue, San Jose,CA 95129