PC Reso 6906 CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 6906
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
RECOMMENDING APPROVAL OF A TREE REMOVAL PERMIT TO REMOVE,
RELOCATE, AND REPLACE SEVENTY-THREE (73) DEVELOPMENT TREES
AT THE OAKS SHOPPING CENTER TO ACCOMMODATE THE
CONSTRUCTION OF A MIXED-USED DEVELOPMENT CONSISTING OF 294
HOUSING UNITS AND 20,000 SQUARE FEET OF COMMERCIAL SPACE
LOCATED AT LOCATED AT 21267 STEVENS CREEK BOULEVARD (APN:
326-27-042, -043)
The Planning Commission recommends that the City Council approve the Tree Removal
Permit, in substantially similar form to the Draft Resolution attached hereto as Exhibit
TR.
PASSED AND ADOPTED at a Regular Meeting of the Planning Commission of the City
of Cupertino the 12th day of May 2020, by the following roll call vote:
AYES: COMMISSIONERS: Chair Moore, Vice C hair Wang, Fung, Takahashi,
Saxena
NOES: COMMISSIONERS: None
ABSTAIN: COMMISSIONERS: None
ABSENT: COMMISSIONERS: None
ATTEST: APPROVED:
Piu Ghosh Kitty Moore
Planning Manager Chair, Planning Commission
R Wang Acting Chair for Kitty Moore
EXHIBIT TR
RESOLUTION NO.
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A TREE REMOVAL PERMIT TO REMOVE, RELOCATE, AND
REPLACE SEVENTY-THREE (73) DEVELOPMENT TREES AT THE OAKS SHOPPING
CENTER TO ACCOMMODATE THE CONSTRUCTION OF A MIXED-USED
DEVELOPMENT CONSISTING OF 294 HOUSING UNITS AND 20,000 SQUARE FEET
OF COMMERCIAL SPACE LOCATED AT LOCATED AT 21267 STEVENS CREEK
BOULEVARD (APN: 326-27-042, -043)
SECTION I: PROTECT DESCRIPTION
Application No.: TR-2018-22
Applicant: KT Urban (Mark Tersini)
Property Owner: 190 West St.James, LLC
Location: 21267 Stevens Creek Blvd. (APN #326-27-042, -043)
SECTION II: FINDINGS FOR TREE REMOVAL:
WHEREAS, the Planning Commission of the City of Cupertino received an application
for a Tree Removal Permit as described in Section I of this resolution; and
WHEREAS, the Westport Cupertino Mixed-Use Project ("Project"), including the Tree
Removal Permit, is fully described and analyzed in the Initial Study and proposed Final
Environmental Impact Report (State Clearinghouse No. 2019070377) ("EIR" or "Final
EIR") for the Project; and
WHEREAS, the City of Cupertino's Environmental Review Committee at its April 16,
2020 meeting reviewed the Final EIR consisting of the April 7, 2020 Public Review Draft
EIR and Response to Comments,received public comments,and voted 5-0 that the project
may have significant impacts to the environment requiring the preparation of an EIR for
the City Council to consider approving; and
WHEREAS, based on substantial evidence in the record, on May 12, 2020, the Planning
Commission recommended on a X-X vote that the City Council certify that the EIR has
been completed in compliance with the California Environmental Quality Act, Public
Resources Code Section 21000 et seq. ("CEQA") and reflects the independent judgment
and analysis of the City, adopt Findings, adopt and require 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 EIR, and adopt the Mitigation Monitoring
and Reporting Program for the Project (EA-2018-04); and
EXHIBIT TR
WHEREAS, on May 12, 2020 the Planning Commission recommended on a X-X vote that
the City Council approve the Development Permit (DP-2018-05) in substantially similar
form to the Resolution presented (Resolution No. ), approve the Architectural and
Site Approval Permit (ASA-2018-05) in substantially similar form to the Resolution
presented(Resolution No. ), approve the Use Permit (U-2019-03) in substantially
similar form to the Resolution presented (Resolution No. ), approve the Vesting
Tentative Map (TM-2018-03) in substantially similar form to the Resolution presented
(Resolution No. ), approve the Heart of the City Exception (EXC-2019-03) in
substantially similar form to the Resolution presented (Resolution No. ), approve
the Tree Removal Permit (TR-2018-22) in substantially similar form to the Resolution
presented (Resolution No. ); 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 June 2,
2020, 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 June 2, 2020, after consideration of substantial evidence contained in the
entire administrative record, and prior to consideration of the Development Permit, the
City Council adopted Resolution No. [####] certifying the EIR, 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 EIR, 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,
underground garage, walkways and internal street network to public open spaces, the
existing trees cannot be preserved in their locations. The applicant proposes replacement
trees throughout the site in excess of the conformance with the Municipal Code Ordinance
requirements and proposes to locate the replacements where tree coverage is needed, while
also proposing to relocate four of the Coast Live Oak Trees.
EXHIBIT TR
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the Environmental Impact Report and the Mitigation
Monitoring and Reporting Program for the Project (EA-2018-04), subject to the conditions
which are enumerated in this Resolution, beginning on PAGE 3 herein, and subject to the
conditions contained in all other Resolutions approved for this Project,
The application for a Tree Removal Permit, Application No. TR-2018-22, 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-2018-22 as set forth in the Minutes of the City Council Meeting of
June 2, 2020 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 April 20, 2020 consisting of 34 sheets
labeled as Westport Cupertino, G200 — G206C, A001-A222, VTM-I-VTM-6, and
L100-L300, drawn by C2K, and Kimley Horn 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. ASA-2018-05, EXC-2019-03, TM-
2018-03, DP-2018-05, U-2019-03 and EA-2018-04 shall 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.
5. TREE REPLACEMENT SIZE
The applicant shall provide adequate tree replacements for trees 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
EXHIBIT TR
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 pay in-lieu fees determined to be appropriate by 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 shall
be consulted before any trenching or root cutting beneath the dripline 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.
EXHIBIT TR
• 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
To the fullest extent permitted by law, the applicant shall 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 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 this
Resolution/Action Letter, the related entitlements, or any permit or approval
authorized hereby for the project,including(without limitation) reimbursing the City
its actual attorneys' fees and costs incurred in defense of the litigation. The applicant
shall pay such attorneys' fees and costs within 30 (thirty) days following receipt of
invoices from City. 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 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.
EXHIBIT TR
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.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 2nd day of June, 2020, by the following vote:
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
Steven Scharf, Mayor Date
City of Cupertino
ATTEST:
Date
Kirsten S uarcia, City Clerk