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TR-2014-40b ��� OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE•CUPERTINO, CA 95014-3255 C U P E RT 1 N� TELEPHONE: (408)777-3223• FAX: (408)777-3366 To: Planning Department From: Kirsten Squarcia Subject: Subject: Petition for Reconsideration of the City Council's approval of the Hyatt House Hotel development project Description: Application Summary; Applications: DP-2014-04, U-2014-04, ASA-2014-06, EXC-2014-07, TR-2014-28,TR-2014-40, EA-2014-06; Petitioner: Darrel Lum, Concerned Citizens of Cupertino; Applicant: Edward Chan; Property Owner: Cupertino Property Development II, LLC; Location: 10380 Perimeter Road (Southeast quadrant of Wolfe Road and I-280, APN 316-20- 094) and 10150 North Wolfe Road (JC Penney site, APN 316-20-094) Date: November 20, 2014 At its November 18, 2014 regular meeting, the Cupertino City Council took the following action: CONSIDERED THE PETITION FOR RECONSIDERATION AND ADOPTED RESOLUTION N0. 14-215 DENYING THE PETITION FOR FAILURE TO MEET THE REQUIREMENTS OF MUNICIPAL CODE SECTION 2.08.09 OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE•CUPERTINO, CA 95014-3255 C U P E RT 1 N O TELEPHONE:(408)777-3223• FAX: (408)777-3366 November 19, 2014 Re: Subject: Petition for Reconsideration of the City Council's approval of the Hyatt House Hotel development project Descri�tion: Application Summary; Applications: DP-2014-04, U-2014-04, ASA- 2014-06, EXC-2014-07, TR-2014-28,TR-2014-40, EA-2014-06; Petitioner: Darrel Lum, Concerned Citizens of Cupertino; Applicant: Edward Chan; Property Owner: Cupertino Property Development II, LLC; Location: 10380 Perimeter Road (Southeast quadrant of Wolfe Road and I-280, APN 316-20-094) and 10150 North Wolfe Road (JC Penney site, APN 316-20-094) To Whom It May Concern; At its November 18, 2014 meeting, the Cupertino City Council CONSIDERED THE PETITION FOR RECONSIDERATION AND ADOPTED RESOLUTION NO. 14-215 DENYING THE PETITION FOR FAILURE TO MEET THE REQUIREMENTS OF MUNICIPAL CODE SECTION 2.08.09 Also included is the Resolution that Council adopted at the meeting. Please call the Planning Department at 777-3308 if you have any questions. The decision by the City Council above described is final effective October 21, 2014. The time within which judicial review must be sought is governed by §1096.6 of the California Code of Civil Procedure which is 90 days follozving the above effective date. Sincerely, ����- Kirsten Squarcia Deputy City Clerk cc: City Attorney, Planning Department RESOLUTION N0. 14-215 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO DENYING THE PETITION OF DARREL LUM SEEKING COUNCIL RECONSIDERATION OF ITS DECISION TO APPROVE A DEVELOPMENT PERMIT (DP-2014-04), USE PERMIT (U-2014-04), ARCHITECTURAL AND SITE APPROVAL (ASA-2014-06), PARKING EXCEPTION (EXC-2014-07), AND TREE REMOVAL PERMIT (TR-2014-28) FOR A FIVE- STORY, 148-ROOM HOTEL OF APPROXIMATELY 102,700 SQUARE FEET THAT INCLUDES A RESTAURANT, BAR, LOUNGE, AND CONFERENCE ROOMS BUILT OVER A 35,800 SQUARE FOOT UNDERGROUND PARKING GARAGE THAT CONTAINS TANDEM PARKING AT 10380 PERIMETER ROAD AND A TREE REMOVAL PERMIT (TR- 2014-40) AT 10150 NORTH WOLFE ROAD TO FACILITATE THE OFF-SITE IMPROVEMENTS ASSOCIATED WITH THE CONSTRUCTION OF THE HOTEL PROJECT WHEREAS, on October 21, 2014, the City Council of the City of Cupertino held a public hearing and at the conclusion of the hearing approved on a 4-1 vote applications DP-2014-04, U- 2014-04, ASA-2014-06, EXC-2014-07, TR-2014-28, and TR-2014-40 for a hotel project located at 10380 Perimeter Road (Decision); and WHEREAS, the City Council's Decision was within its discretion and made at a properly noticed public hearing; and WHEREAS, on October 30, 2014, Petitioner Darrel Lum (Petitioner) filed a Reconsideration Petition (Reconsideration Petition) requesting that the City Council reconsider its October 21, 2014 decision under the provisions of Section 2.08.096 of the City's Municipal Code; and WHEREAS, the City Council has considered all relevant evidence presented by the parties at all hearings, including evidence presented at the November 18, 2014 reconsideration hearing; and WHEREAS, based on the evidence above, the City Council hereby makes the findings in Exhibit "A", and, based upon these findings,; NOW, THEREFORE, BE IT RESOLVED: 1. The Reconsideration Petition is defective on its face in that it does not offer proof of facts which, in the exercise of reasonably diligence, could not have been produced at an earlier city hearing as required by Municipal Code Section 2.08.096(B)(1). 2. Petitioner failed to offer evidence which was improperly excluded at a prior city hearing as required by Municipal Code Section 2.08.096(B)(2). Resolution No.14-215 Page 2 3. Petitioner failed to provide proof of facts which demonstrate that the City Council proceeded without, or in excess of its,jurisdiction [See Municipal Code Section 2.08.096 (B)(3)]. 4. Petitioner failed to demonstrate that the City Council abused its discretion by rendering a decision which was not supported by findings of fact; and/or rendering a decision in which the findings of fact were not supported by the evidence. Specifically, the City Council determines that the City Council's Decision of October 21, 2014 is supported by findings of fact and the findings of fact related to the City Council's decision were supported by substantial evidence in the record of proceedings [See Municipal Code Sections 2.08.096]. 5. The Petition for Reconsideration of the City Council's Decision of October 21, 2014 on agenda item 13 is DENIED, thereby affirming the original decision. PASSED AND ADOPTED this 18th day of November, 2014, Regular Meeting of the City Council of the City of Cupertino, State of California,by the following roll call vote: AYES: Wong, Sinks, Chang, Mahoney, Santoro NOES: None ABSTAIN: None ABSENT: None ATTEST: APPROVED: /s Grace Schmidt /s/Gilbert Wong Grace Schmidt Gilbert Wong, Mayor City Clerk City of Cupertino EXHIBIT A CITY COUNCIL FINDINGS IN RESPONSE TO PETITION FOR RECONSIDERATION 1. Ground for Reconsiderntion #1 (Section 2.08.096 (B)(3) of the Municipal Code]—Council acted in excess of its jurisdiction Petition Findin The General Plan allows buildings with a retail The petitioner presented this claim at the component located in the South Vallco area to August 26, 2014 Planning Commission hearing be constructed up to 60 feet tall. Otherwise, and submitted similar written comments for buildings may be constructed up to 45 feet the October 21, 2014 Council hearing. Both the without a retail component. The petitioner Planning Comnussion and the City Council alleges the hotel project has no retail thoroughly considered and discussed this component and therefore should not be claim and acted upon the project accordingly. allowed to be constructed at its approved height of 60 feet. Restaurants are considered legitimate retail uses and are allowed in the City's General Commercial Ordinance since they provide direct contact with customers and generate sales tax. The intent of the General Plari s 60-foot building height policy in South Vallco is to promote active ground floors. Based on past approvals and Council practice, restaurants have been deemed to be an appropriate ground floor retail use that supports the 60-foot height allowance. Finding and conclusion: It is within City Council's jurisdiction to interpret the General Plan and make decisions on its implementation. The petitioner has not provided any proof of facts that demonstrate the Council proceeded without, or in excess of its jurisdiction. 2. Ground for Reconsideration #2 (Sections 2.08.096 (B)(5)(b) and (c) of t1Te Municipal Code] — Council's decision was not supported b�facts or the findings of fact were not supported b� the evidence. Petition Findin The petitioner notes that Hyatt House is an The General Plan's building height policy was extended stay, business service hotel with discussed in detail in the October 21, 2014 staff limited amenities to serve hotel guests, such as report and at the Council hearing. The Council complimentary breakfast and in-room kitchen considered the petitioner's testimony as facilities. The petitioner claims that there was provided but found that the hotel's restaurant, no finding of fact in the October 21, 2014 staff bar, and other active commercial ground floor report and meeting minutes that the hotel's uses are considered retail, thereby allowing the restaurant and bar is considered retail. 60-foot building height. In addition to servin the hotel uests, the hotel restaurant is required to be open to the public and is considered a full service restaurant similar to other restaurants in the Ci Finding and conclusion: The City Council considered, and rejected, the claim that the hotel's restaurant should not be considered retail. The petitioner has not provided any proof of facts that demonstrate the Council abused its discretion by rendering a decision which was not supported by findings of fact, or rendering a decision in which the findings of fact were not supported by the evidence. OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE•CUPERTINO, CA 95014-3255 TELEPHONE:(408)777-3223• FAX: (408)777-3366 CUPERTINO October 23,2014 Re: Subject: Hyatt House Hotel development project Descri�tion: Application No.(s): ASA-2014-06, DP-2014-04, EXC-2014-07, TR-2014-28, U-2014-04, TR- 2014-40 (EA-2014-06); Applicant: Edward Chan (Cupertino Property Development II, LLC.);L,ocation: Perimeter Rd @ Wolfe Rd; APN: 316-20-092;Architectural Site Approval for a new 5-story, 148 room hotel and associated site and off-site improvements; Development Permit to allow the demolition of an existing parking lot and construct a 5 story, 148 room hotel of approximately 102,700 square feet that includes a restaurant, bar, lounge and conference rooms built over a 35,800 square foot underground parking garage that contains tandem parking; Parking Exception Permit to allow eight tandem parking stalls;Tree Removal Permit to allow the removal and replacement of 96 trees to facilitate the construction of a new hotel; Use Permit to allow a 24-hour hotel, including a restaurant with interior bar; Tree Removal Permit to allow the removal and replacement of 19 trees to facilitate the off-site improvements associated with the construction of a new hotel At its October 21, 2014 meeting, the Cupertino City Council took the following action: 1. Adopted Mitigated Negative Declaration (EA-2014-06); and 2. Adopted Resolution No. 14-202 approving Development Permit (DP-2014-04) which includes approval of the South Vallco Connectivity Plan; and 3. Adopted Resolution No. 14-203 approving Use Permit(U-2014-04); and 4. Adopted Resolution No.� 14-204 approving Architectural and Site Approval (ASA-2014-06) with the additional condition to have staff and applicant contact Caltrans to consider a direct public bicycle and pedestrian access path from the existing Wolfe Road sidewalk to the project site along the westerly boundary, in order to allow direct access onto Wolfe Road and access over the freeway overpass. If Caltrans approves of the access path, the property owner shall work with staff to construct the path; and 5. Adopted Resolution No. 14-205 approving Parking Exception (EXC-2014-07); and 6. Adopted Resolution No. 14-206 approving Tree Removal Permit (TR-2014-28) with the additional condition to require a tree condition report to be reviewed and approved by the Director of Community Development one year after final ASA-2014-06,DP-2014-04,EXC-2014-07,TR-2014-28, " U-2014-04,TR-2014-40(EA-2014-06) October 21,2014 Page 2 occupancy of the project. The City's consulting arborist shall inspect the new and existing trees to ensure proper irrigation, maintenance, and compliance with the arborist's recommendations. All additional recommendations resulting from the one-year review shall be implemented by the property owner; and 7. Adopted Resolution No. 14-207 approving Tree Removal Permit(TR-2014-40) Enclosed are the resolutions that Council adopted at the meeting. Any interested person, including the applicant, prior to seeking judicial review of any adjudicatory decision of the City Council, must first file a petition for reconsideration with the city clerk within ten days after the date of mailing of this notice. Any petition filed must comply with Municipal Code §2.08.096. Sincerely, Kirsten Squarcia Deputy City Clerk cc: City Attorney Community Development Darrel Lum Bradley Syverson 7746 Orogrande Place J.C.Penney Properties, Inc. Cupertino, CA 95014 PO Box 10001 Dallas, TX 75301-1106 Erik Alm Department of Transportation Mike Rohde District 4 Vallco Shopping Mall Local Development—Intergovernmental 10123 N. Wolfe Road, Suite 1095 Review Cupertino, CA 95014 PO Box 23660 Oakland, CA 94623-0660 Cupertino Property Development II, LLC c/o KCR Development Attn: Edward Chan 19620 Stevens Creek Blvd #200 Cupertino, Ca. 95014 ' RESOLUTION N0. 14-207 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING A TREE REMOVAL PERMIT TO ALLOW THE REMOVAL AND REPLACEMENT OF 19 TREES TO FACILITATE THE OFF-SITE IMPROVEMENTS ASSOCIATED WITH THE CONSTRUCTION OF A NEW HOTEL LOCATED AT 10150 NORTH WOLFE ROAD SECTION I: PROTECT DESCRIPTION Application No.: TR-2014-40 Applicant: Edward Chan Property Owner: JC Penney Properties Location: 10150 North Wolfe Road (APN 316-20-094) - SECTION II: FINDINGS FOR TREE REMOVAL PERMIT: WHEREAS, the City Council of the City of Cupertino received an application for a Tree Removal Permit as described in Section I. of this Resolution; and WHEREAS, the Environmental Review Committee has recommended adoption of a Mitigated Negative Declaration; and WHEREAS, the necessary public notices have been given as required by the Procedural Ordinance of the City of Cupertino, and the City Council 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 WHEREAS, the City Council finds as follows with regard to this application: a) That the trees are irreversibly diseased, are in danger of falling, can cause potential damage to existing or proposed essential structures, or interferes with private on-site utility services and cannot be controlled or remedied through reasonable relocation or modification of the structure or utility services; Tlie majority (15 of 19) of trees on tlie jC Penney site are found by the City's Consulting Arbo��ist to be in extremely poor to irrecoverable liealtli condition due to weak structures, poor canopies, and/or lack of water. The remaining four ti�ees are p��oposed for removal to facilitate frrontage improvments associated witlz tlze hotel project at 10380 Perimeter Road. New street trees will be planted in tlzeir place. Resolution No.14-207 Page 2 b) 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). Tl1e City's consulting arborist has determined tliat the trees proposed for removal are in conflict wit12 t12e proposed new buildings and site improvements, and, given their condition, are not suitable for preservation or relocation. NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of the initial study, maps, facts, exhibits, testimony and other evidence submitted in this matter, subject to the conditions which are enumerated in this Resolution beginning on PAGE 2 thereof,: A Mitigated Negative Declaration (Application no. EA-2014-06) is hereby adopted; and the application for a Tree Removal Permit, Application no. TR-2014-40 is hereby approved and that the subconclusions upon which the findings and conditions specified in this resolution are based and contained in the Public Hearing record concerning Application no. TR-2014-40 as set forth in the Minutes of City Council Meeting of October 21, 2014, and are incorporated by reference as though fully set forth herein. SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. Planning Division: 1. APPROVED EXHIBITS Approval is based on the plan set received October 2, 2014 consisting of 51 sheets labeled A- 0.0 to A-0.3, C-1.0 to C-7.0, L-1 to L-5, A-1.0, A-1.Oa, A-1.1 to A-1.4, A2.0, A-2.Oa, A-2.1 to A- 2.6, A-3.0 to A-3.8, A-4.0, A-4.Oa, A-4.1, A-4.1a, A-4.2, A-5.0, A-6.0, A-6.1, E-0.1, and E-1.0 to E-1.2, entitled, "Hyatt House, Cupertino California, Wolfe Road & Interstate 280," drawn by Gene Fong Associates, Sandis, Bruce jett Associates, and Emerald City Engineers, Inc.; and the City's consulting arborist report entitled, "Arborist Report: Hyatt House Hotel at Vallco Park, Wolfe Road and Interstate 280, Cupertino, California (APN 316-20-092)," prepared by David Babby, Registered Consulting Arborist #399 dated August 25, 2014 except as may be amended by conditions in this resolution. 2. CONCURRENT APPROVAL CONDITIONS The conditions of approval contained in file nos. DP-2014-04, ASA-2014-06, U-2014-04, EXC- 2014-07, and TR-2014-28 shall be applicable to this approval. 3. APPROVED TREE REMOVALS Resolution No.14-207 ` Page 3 The following table lists the trees approved for removal as part of this permit as identified in the arborist report and plan set: Tree # Species Diameter (in.) 1 Coast Redwood 13 2 Coast Redwood 17 4 Coast Redwood 20 111 Shamel Ash 18 112 Shamel Ash 19 113 Shamel Ash 10 114 Shamel Ash 14 115 Shamel Ash 6 116 Shamel Ash 13 117 Shamel Ash 5 118 Shamel Ash 11 119 Shamel Ash 10 120 Shamel Ash 8 121 Shamel Ash 7 122 Shamel Ash 13 123 Shamel Ash 9 124 Shamel Ash 19 125 Shamel Ash 16 126 Shamel Ash 7 4. TREE CONDITION REPORT Per City Council direction, a tree condition report shall be reviewed and approved by the Director of Community Development one year after final occu�anc� of the project. The City's consulting arborist shall inspect the new and existing trees to ensure proper irrigation, maintenance, and compliance with the arborist's recommendations. All additional recommendations resulting from the one-year review shall be implemented by the property owner. 3. CITY ARBORIST RECOMMENDATIONS Prior to buildin�permit issuance, the recommendations prior to construction contained in the City's Consulting Arborist report shall be implemented in the construction plans as deemed appropriate by the Director of Community Development. Prior to final occu�anc� the City's Consulting Arborist shall inspect the site to confirm the recommendations have been carried out as deemed appropriate by the Director of Community Development. A report ascertaining the good health of the existing trees to remain and the new tree plantings shall be provided �rior to final occu,�anc� • Resolution No.14-207 Page 4 4. TREE REPLACEMENTS AND FINAL PLANTING PLAN MM-BIO 2: The applicant shall plant replacement trees in accordance with the replacement requirements of the Protected Tree Ordinance. The trees shall be planted �rior to final occu�ancv of site �ermits. The final planting plan shall be reviewed and approved by the Director of Community Development with consultation by the City Arborist prior to issuance of buildin��ermits. The Director of Community Development shall have the discretion to require additional tree replacements as deemed necessary. The City Arborist shall confirm that the replacement trees were planted properly and according to plan�rior to final occu�anc,y. 5. TREE REPLACEMENT BOND The applicant shall provide a tree replacement bond in an amount determined by the City Arborist �rior to removals and issuance of demolition and grading �ermits. The bond shall be returned after the required tree replacements have been planted and verified by the City Arborist. 6. CONSULTA'I'ION 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. 7. INDEMNIFICATION To the extent permitted by law, the Applicant shall indemnify and hold harmless the City, its City Council, its officers, employees and agents (the "indemnified parties") from and against any claim, action, or proceeding brought by a third party against the indemnified parties and the applicant to attack, set aside, or void this ordinance 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 City may, in its sole discretion, elect to defend any such action with attorneys of its choice. 8. 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. Resolution No.14-207 ' Page 5 PASSED AND ADOPTED at a regular meeting of the City Council this 21st day of October, 2014, by the following roll call vote: AYES: Wong, Sinks, Chang, Mahoney, Santoro NOES: None ABSTAIN: None ABSENT: None ATTEST: APPROVED: /s/Grace Scmidt /s/Gilbert Wong Grace Schmidt Gilbert Wong, Mayor City Clerk City of Cupertino TR-2014-40 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 RESOLUTION NO. 6757 OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO RECOMMENDING APPROVAL OF A TREE REMOVAL PERMIT TO ALLOW THE REMOVAL AND REPLACEMENT OF 19 TREES TO FACILITATE THE OFF-SITE IMPROVEMENTS ASSOCIATED WITH THE CONSTRUCTION OF A NEW HOTEL LOCATED AT 10150 NORTH WOLFE ROAD SECTION I: PROTECT DESCRIPTION Application No.: TR-2014-40 Applicant: Edward Chan Property Owner: JC Penney Properties Location: 10150 North Wolfe Road (APN 316-20-094) SECTION II: FINDINGS FOR TREE REMOVAL PERMIT: 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 Environmental Review Committee has recommended adoption of a MiHgated Negative Declaration; 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 WHEREAS, the Planning Commission finds as follows with regard to this application: a) That the trees are irreversibly diseased, are in danger of falling, can cause potential damage to existing or proposed essential structures, or interferes with private on-site utility services and cannot be controlled or remedied through reasonable relocation or modification of the structure or utility services; The majority (52 of 84) of the Coast Redwoods along the Wolfe Road and I-280 perimeter of the site are found by the City's Consulting Arborist to be in extremely poor to irrecoverable health condition due to lack of water or overcrowding. Nine Coast Redwood trees along the I-280 perimeter were identified by the arborist as having a high suitability for preservation since they appear reasonably healthy and have no significant issues or defects. Three of these trees are proposed for removal due to the proposed trail pathway connection, while the other six will be preserved. All of the 28 perimeter trees along Wolfe Road are proposed for removal since twenty-two of these are in poor health and since it will facilitate the construction of the pathway. Resolution No.6757 TR-2014-40 August 26,2014 b) 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). The City's consulting arborist has determined that the trees proposed for removal are in conflfct with the proposed new buildings and site improvements, and, given their condition, are not suitable for preservation or relocation. NOW,THEREFORE, BE IT RESOLVED: That after careful consideration of the initial study, maps, facts, exhibits, testimony and other evidence submitted in this matter, subject to the conditions which are enumerated in this Resolution beginning on PAGE 2 thereof,: A Mitigated Negative Declaration (Application no. EA-2014-06) is hereby recommended for adoption; and the application for a Tree Removal Permit, Application no. TR-2014-40 is hereby recommended for approval and that the subconclusions upon which the findings and conditions specified in this resolution are based and contained in the Public Hearing record concerning Application no. TR-2014-40 as set forth in the Minutes of Planning Commission Meeting of August 26, 2014, and are incorporated by reference as though fully set forth herein. SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. Planning Division: 1. APPROVED EXHIBITS Approval recommendation is based on the plan set received August 13, 2014 consisting of 47 sheets labeled A-0.0 to A-0.3, C-1.0 to C-5.0, C-5.1, C-6.0, L-1 to L-5, A-1.0 to A-1.4, A2.0 to A-2.6, A-3.0 to A- 3.8, A-4.0 to A-4.2, A-5.0, A-6.0, A-6.1, E-0.1, and E-1.0 to E-1.2, entitled, "Hyatt House, Cupertino California, Wolfe Road & Interstate 280," drawn by Gene Fong Associates, Sandis, Bruce Jett Associates, and Emerald City Engineers, Inc.; and the City's consulting arborist report entitled, "Arborist Report: Hyatt House Hotel at Vallco Park, Wolfe Road and Interstate 280, Cupertino, California (APN 316-20-092)," prepared by David Babby, Registered Consulting Arborist #399 dated July 24, 2014 except as may be amended by conditions in this resolution. 2. CONCURRENT APPROVAL CONDITIONS The conditions of approval contained in file nos. DP-2014-04, ASA-2014-06, U-2014-04, EXC-2014-07, and TR-2014-28 shall be applicable to this approval. 3. TREE REPLACEMENTS AND FINAL PLANTING PLAN MM-BIO 2: The applicant shall plant replacement trees in accordance with the replacement requirements of the Protected Tree Ordinance. The trees shall be planted �rior to final occu�ancy of site�ermits. The final planting plan shall be reviewed and approved by the Director of Community Development with consultation by the City Arborist prior to issuance of building permits. The Director of Community Development shall have the discretion to require additional tree replacements as Resolution No.6757 TR-2014-40 August 26,2014 deemed necessary. The City Arborist shall confum that the replacement trees were planted properly and according to plan prior to final occu�anc�. 4. TREE REPLACEMENT BOND The applicant shall provide a tree replacement bond in an amount determined by the City Arborist �rior to removals and issuance of demolition and gradin��ermits. The bond shall be returned after the required tree replacements have been planted and verified by the City Arborist. 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. INDEMNIFICATION To the extent permitted by law, the Applicant shall indemnify and hold harmless the City, its City Council, its officers, employees and agents (the "indemnified parties") from and against any claim, action, or proceeding brought by a third party against the indemnified parties and the applicant to attack, set aside, or void this ordinance 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 City may, in its sole discretion, elect to defend any such action with attorneys of its choice. 7. 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 this 26th day of August, 2014, Regular Meeting of the Planning Commission of the City of Cupertino, State of California,by the following roll call vote: AYES: COMMISSIONERS: Gong,Sun, Takahashi NOES: COMMISSIONERS: Chair Brophy,Vice Chair Lee ABSTAIN: COMMISSIONERS: none ABSENT: COMMISSIONEIZS: none ATTEST: APPROVED: /s/Garv Chao /s/I'aul Bro�hv Gary Chao Paul Brophy, Chair Assist. Directar of Community Development Planning Commission TR-2014-40 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 DRAFT RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO RECOMMENDING APPROVAL OF A TREE REMOVAL PERMIT TO ALLOW THE REMOVAL AND REPLACEMENT OF 19 TREES TO FACILITATE THE OFF-SITE IMPROVEMENTS ASSOCIATED WITH THE CONSTRUCTION OF A NEW HOTEL LOCATED AT 10150 NORTH WOLFE ROAD SECTION I: PROTECT DESCRIPTION Application No.: TR-2014-40 Applicant: Edward Chan Property Owner: JC Penney Properties Location: 10150 North Wolfe Road (APN 316-20-094) SECTION II: FINDINGS FOR TREE REMOVAL PERMIT: 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 Environmental Review Committee has recommended adoption of a Mitigated Negative Declaration; 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 WHEREAS, the Planning Commission finds as follows with regard to this application: a) That the trees are irreversibly diseased, are in danger of falling, can cause potential damage to existing or proposed essential structures, or interferes with private on-site utility services and cannot be controlled or remedied through reasonable relocation or modification of the structure or utility services; The majority (52 of 84) of the Coast Redwoods along the Wolfe Road and I-280 perimeter of the site are found by the City's Consulting Arborist to be in extremely poor to irrecoverable health condition due to lack of water or overcrowding. Nine Coast Redwood trees along the I-280 perimeter were identified by the arborist as having a high suitability for preservation since they appear reasonably healthy and have no significant issues or defects. Three of these trees are proposed for removal due to the proposed trail pathway connection, while the other six will be preserved. AlI of the 28 perimeter trees along Wolfe Road are proposed for removal since twenty-two of these are in poor health and since it will facilitate the construction of the pathway. Draft Resolution TR-2014-40 August 26,2024 b) 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). The City's consulting arborist has determined that the trees proposed for removal are in conflict with the proposed new buildings and site improvements, and, given their condition, are not suitable for p��eservation or relocation. NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of the initial study, maps, facts, exhibits, testimony and other evidence submitted in this matter, subject to the conditions which are enumerated in this Resolution beginning on PAGE 2 thereof,: A Mitigated Negative Declaration (Application no. EA-2014-06) is hereby recommended for adoption; and the application for a Tree Removal Permit, Application no. TR-2014-40 is hereby recommended for approval and that the subconclusions upon which the findings and conditions specified in this resolution are based and contained in the Public Hearing record concerning Application no. TR-2014-40 as set forth in the Minutes of Planning Commission Meeting of August 26, 2014, and are incorporated by reference as though fully set forth herein. SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. Planning Division: 1. APPROVED EXHIBITS Approval recommendation is based on the plan set received August 13, 2014 consisting of 47 sheets labeled A-0.0 to A-0.3, C-1.0 to C-5.0, C-5.1, C-6.0, L-1 to L-5, A-1.0 to A-1.4, A2.0 to A-2.6, A-3.0 to A- 3.8, A-4.0 to A-4.2, A-5.0, A-6.0, A-6.1, E-0.1, and E-1.0 to E-1.2, entitled, "Hyatt House, Cupertino California, Wolfe Road & Interstate 280," drawn by Gene Fong Associates, Sandis, Bruce jett Associates, and Emerald City Engineers, Inc.; and the City's consulting arborist report entitled, "Arborist Report: Hyatt House Hotel at Vallco Park, Wolfe Road and Interstate 280, Cupertino, California (APN 316-20-092)," prepared by David Babby, Registered Consulting Arborist #399 dated July 24, 2014 except as may be amended by conditions in this resolution. 2. CONCURRENT APPROVAL CONDITIONS The conditions of approval contained in file nos. DP-2014-04, ASA-2014-06, U-2014-04, EXC-2014-07, and TR-2014-28 shall be applicable to this approval. 3. TREE REPLACEMENTS AND FINAL PLANTING PLAN MM-BIO 2: The applicant shall plant replacement trees in accordance with the replacement requirements of the Protected Tree Ordinance. The trees shall be planted prior to final occu�ancv of site�ermits. The final planting plan shall be reviewed and approved by the Director of Community Development with consultation by the City Arborist prior to issuance of building �ermits. The Director of Community Development shall have the discretion to require additional tree replacements as Draft Resolution TR-2014-40 August 26,2014 deemed necessary. The City Arborist shall confirm that the replacement trees were planted properly and according to plan prior to final occu�anc�. 4. TREE REPLACEMENT BOND The applicant shall provide a tree replacement bond in an amount determined by the City Arborist prior to removals and issuance of demolition and r� adin��ermits. The bond shall be returned after the required tree replacements have been planted and verified by the City Arborist. 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. INDEMNIFICATION To the extent permitted by law, the Applicant shall indemnify and hold harmless the City, its City Council, its officers, employees and agents (the "indemnified parties") from and against any claim, action, or proceeding brought by a third party against the indemnified parties and the applicant to attack, set aside, or void this ordinance 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 City may, in its sole discretion, elect to defend any such action with attorneys of its choice. 7. 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 this 26th day of August, 2014, Regular Meeting of the Planning Commission of the City of Cupertino, State of California,by the following roll call vote: AYES: COMMISSIONERS: NOES: COMMISSIONERS: ABSTAIN: COMMISSIONERS: ABSENT: COMMISSIONERS: ATTEST: APPROVED: Gary Chao Paul Brophy, Chair Assist. Director of Community Development Planning Commission