Res 2023-18 - M-2022-003 - PC Resolution (signed) CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 2023-18
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO APPROVING
ADOPTION OF A THIRD ADDENDUM TO A PREVIOUSLY ADOPTED
ENVIRONMENTAL IMPACT REPORT AND APPROVING A
A MODIFICATION OF AN EXISTING USE PERMIT (U-2008-01) TO ALLOW
MODIFICATION OF THE ORIGINAL MAIN STREET USE PERMIT (U-2008-01)
FOR THE ADDITION OF A SECOND FLOOR WITHIN SHOP 1 (TD
AMERITRADE)
SECTION 1: PROTECT DESCRIPTION
Application No.: M-2022-003
Applicant: Main Street Cupertino Retail Property, LLC
Location: 19409 Stevens Creek Blvd. (APNs: 316-20-112)
SECTION 1I: FINDINGS FOR A USE PERMIT:
WHEREAS, the Planning Commission of the City of Cupertino received an application
for an amendment to an existing Conditional Use Permit (U-2008-01) to allow for the
addition of a second floor within Shop 1 (TD Ameritrade).
WHEREAS, after consideration of evidence contained in the entire administrative record,
at the public hearing on September 4, 2012, the City Council adopted Resolution No. 12-
098, adopting a second Addendum to an Environmental Impact Report for the Main
Street Cupertino Development; and
WHEREAS, environmental analysis and peer reviews were conducted by David J.
Powers, Inc. pursuant to the requirements of CEQA, and an addendum to the
Environmental Impact Report was prepared which found that no new or substantially
increased significant environmental effects; and
WHEREAS, the necessary public notices have been given as required by the Procedural
Ordinance of the City of Cupertino, and the Planning Commission has held at least one
public hearing in regard to the application; and
WHEREAS, the applicant has met the burden of proof required to support said
application; and
Resolution No. M-2022-003 November 14,2023
Page 2
WHEREAS, the analysis in the Addendum prepared by David J. Powers indicates that
the proposed project would not require major revisions to the Environmental Impact
Report adopted on December 16, 2008, due to new or substantially increased significant
environmental effects. Furthermore, there have been no substantial changes with respect
to the circumstances under which these minor modifications would be undertaken that
would require major revisions of the Adopted Environmental Impact Report due to new
or substantially increased significant environmental effects, and there has been no
discovery of new information of substantial importance that would trigger or require
major revisions to the Environmental Impact Report due to new or substantially
increased significant environmental effects.
WHEREAS, the adopted Environmental Impact Report adequately identifies all
environmental effects and adequate mitigation measures for the proposed modifications
to the previously approved project. Therefore, no subsequent or supplemental
Environmental Impact Report is required prior to approval of the proposed project.
WHEREAS, the Planning Commission finds:
1. The proposed development and/or use, at the proposed location, will not be
detrimental or injurious to property or improvements in the vicinity, and will not be
detrimental to the public health, safety, general welfare, or convenience.
The project is consistent with the General Plan and Zoning Ordinance and has been designed
to be compatible with the existing building and of adjoining land uses. Additionally, all
mitigation measures that are within the responsibility and jurisdiction of the City have been
adopted and will be made conditions of approval to mitigate potential impacts to a less than
significant level. Therefore, the project will not be detrimental or injurious to properties or
improvements in the vicinity, and will not be detrimental to the public health, safety, general
welfare, or convenience.
2. The proposed development and/or use will be located and conducted in a manner in
accord with the Cupertino Comprehensive General Plan, underlying zoning
regulations, and the purpose of this title and complies with the California
Environmental Quality Act(CEQA).
The General Plan land use designation for the property is Commercial/Office/Residential. The
proposed addition is consistent with the General Plan in terms of use,height,slope line setback,
as well as allocation for commercial. Further, the development fits within many of land use
strategies and policies for the South Vallco Park portion of the Heart of the City Special Area
such as consistent mix of uses as well as activation of Stevens Creek Boulevard. The proposed
addition with the existing development has met the applicable development standards of the
Resolution No. M-2022-003 November 14,2023
Page 3
Heart of the Cihj Specific Plan including outdoor open space and setbacks. The project has been
approved with a Third Addendum to its EIR.
WHEREAS, the Planning Commission is the approval authority for this project and is
granted the authority by the Municipal Code to exercise its independent judgment,based
on the record before it, for purposes of the California Environmental Quality Act; and
NOW, THEREFORE, BE IT RESOLVED that the Planning Commission takes the
following actions:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the Addendum, 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 Planning Commission hereby:
1. Determines that the Third Addendum to the Initial Study and Environmental
Impact Report (State Clearinghouse Number 2008082058) for the Main Street
Cupertino Project reflects the independent judgement of the Planning Commission;
and
2. Adopts the Third Addendum to the Initial Study and Environmental Impact Report
(State Clearinghouse Number 2008082058) for the Main Street Cupertino Project;
and
3. Approves the application for a Conditional Use Permit Amendment, Application
No. M-2022-003; and
That the conclusions upon which the findings and conditions specified in this Resolution
are based are contained in the Public Hearing record concerning Application no. M-2022-
003 as set forth in the Minutes of the City Council Meeting of November 14, 2023 and are
incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPARTMENT
1. APPROVED EXHIBITS
Approval is based on the plan set entitled "Main Street Cupertino, 19349 Stevens
Creek Blvd. Cupertino, CA 95014" consisting of eight sheets labeled A0.0 -A8.0,
drawn by Dscheme Studio, except as may be amended by conditions in this
resolution.
Resolution No. M-2022-003 November 14,2023
Page 4
2. 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.
3. 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.
4. PREVIOUS CONDITIONS OF APPROVAL
All previous conditions of approval shall remain in effect except as may be
amended by conditions contained in this resolution.
5. FUTURE REVIEW OF USE PERMIT
In the event of any documented substantial problems and/or violations, the City
reserves the right to review this use permit at any time for imposing additional
conditions of approval or revocation of the use permit.
6. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file no. ASA-2023-009 shall be applicable
to this approval.
7. MODIFICATIONS APPROVED/DEVELOPMENT ALLOCATION
5,585 square feet of commercial allocation is allocated from the Heart of the City
commercial allocation to this project. Total Commercial square footage for the
Main Street Cupertino Development is now 136,085.
8. BELOW MARKET RATE PROGRAM
The applicant shall participate in the City's Below Market Rate (BMR) Housing
Program by paying the Below Market Rate linkage fee for Commercial use
concurrent with issuance of building permits at the rate in effect at that time. The
current fee is $14.24 per net new square feet (-5,585 sq.ft.) for commercial use.
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.
Resolution No. M-2022-003 November 14,2023
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10. 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.
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.
11. NOISE AND VIBRATION NOTICE
At least 10 days prior to the start of any demolition, ground disturbing, or
construction activities, the project applicant/contractor shall send notices of the
planned activity by first class mail to off-site businesses and residents within 500
feet of the project site. The City will provide a template notice and mailing
addresses for the Applicant's use. The notice must be approved by City staff prior
to sending. The project applicant shall provide the City with evidence of mailing
of the notice, upon request.
Please note that, if pile driving, the requirements for noticing and monitoring
outlined in City Code Section 17.04.050 G (3) shall apply.
12. NOISE AND VIBRATION SIGNAGE
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At least 10 days prior to the start of any demolition, ground disturbing, or
construction activities, the project applicant/contractor shall ensure that a sign
measuring at least four feet by six feet shall be posted on construction fencing at
the entrance(s) to the job site, clearly visible to the public, and include the
following:
a. Permitted construction days and hours;
b. A description of proposed construction activities;
c. 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; and
d. Contact information for City's and contractor's authorized representatives that
are assigned to respond in the event of a complaint related to fugitive dust,
pursuant to the requirements for compliance with BAAQMD's CEQA Air
Quality Guidelines.
If the authorized contractor's representative receives a complaint, they shall
investigate, take appropriate corrective action, and report the complaint and the
action taken to the City within three business days of receiving the complaint.
13. NOISE DURING CONSTRUCTION
Prior to issuance of any demolition, grading or building permit, include on plans
a note that, during project construction, the project applicant shall incorporate the
following measures to reduce noise during construction and demolition activity:
a. The project applicant and contractors shall prepare and submit a Construction
Noise Control Plan to the City's Planning Department for review and approval
prior to issuance of the first permit. The Construction Noise Plan shall
demonstrate compliance with daytime and nighttime decibel limits pursuant
to Chapter 10.48 (Community Noise Control) of Cupertino Municipal Code.
The details of the Construction Noise Control Plan shall be included in the
applicable construction documents and implemented by the on-site
Construction Manager. Noise reduction measures selected and implemented
shall be based on the type of construction equipment used on the site, distance
of construction activities from sensitive receptor(s), site terrain, and other
features on and surrounding the site (e.g., trees, built environment) and may
include, but not be limited to, temporary construction noise attenuation walls,
high quality mufflers. During the entire active construction period, the
Construction Noise Control Plan shall demonstrate that compliance with the
specified noise control requirements for construction equipment and tools will
reduce construction noise in compliance with the City's daytime and nighttime
decibel limits.
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b. Select haul routes that avoid the greatest amount of sensitive use areas and
submit to the City of Cupertino Public Works Department for approval prior
to the start of the construction phase.
c. Signs will be posted at the job site entrance(s), within the on-site construction
zones, and along queueing lanes (if any) to reinforce the prohibition of
unnecessary engine idling. All other equipment will be turned off if not in use
for more than 5 minutes.
d. During the entire active construction period and to the extent feasible, the use
of noise producing signals, including horns, whistles, alarms, and bells will be
for safety warning purposes only. The construction manager will use smart
back-up alarms, which automatically adjust the alarm level based on the
background noise level or switch off back-up alarms and replace with human
spotters in compliance with all safety requirements and law.
14. FUGITIVE DUST CONTROL
Prior to issuance of the any demolition, grading, or building permit,include on all
permit plans, the full text of each of the Bay Area Air Quality Management
District's Basic Control Measures from the latest version of BAAQMD's CEQA Air
Quality Guidelines, as subsequently revised, supplemented, or replaced, to
control fugitive dust (i.e., particulate matter PM2.5 and PM10) during demolition,
ground disturbing activities and/or construction.
15. INDEMNIFICATION AND LIMITATION OF LIABILITY
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
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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.
16. 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.
PASSED AND ADOPTED this 141h day of November, 2023 at a noticed Public Hearing of
the Planning Commission of the City of Cupertino, State of California, held by the
Director of Community Development, or his or her designee, pursuant to Cupertino
Municipal Code Section 19.12.120.
AYES:COMMISSIONERS: Lindskog, Fung, Scharf, Madhdhipatla, Mistry
NOES: COMMISSIONERS: None
ABSTAIN: COMMISSIONERS: None
ABSENT: COMISSIONERS: None
Resolution No. M-2022-003 November 14,2023
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ATTEST: APPROVED:
2 i 1
Piu Ghosh Steven Scharf
Planning Manager Chair, Planning Commission