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TR-2014-42b City of Cupertino , ,� 10300 Torre Avenue Cupertino,CA 95014 (408) 777-3308 C U P E RT 1 N O FAX (408) 777-3333 Community Development Department November 26, 2014 RH Associates Attn:Daryl Harris 22867 Sunset Ridge Dr Auburn, Ca. 95602 SUBJECT: PLANNING COMMISSION ACTTON LETTER—EXC-2014-09, TR-2014-42 This letter confirms the decision of the Planning Commission, given at the meeting of November 25, 2014, approving a Hillside Exception to allow the construction of a new 5,213 square foot single family residence with a 1,412 square foot basement on slopes greater than 30% and a Tree Removal Permit to allow the removal and replacement of three (3) protected trees; a 17.7", a 26.6" and a 23.1" diameter Coast Live Oaks in conjunction with the development of a single family hillside residence, located at 21730 Rainbow Drive, according to Planning Commission Resolution No.(s) 6768 and 6769. Please be aware that if this Permit is not used within a two-year period, it shall expire on November 25, 2016. Also, please note that an appeal of this decision can be made within 14 calendar days from the mailing of the notice of the decision. If this happens, you will be notified of a public hearing, which will be scheduled before the City Council. Sincerely, ��(f"tn^ , Colin J Associate Planner Planning Department Enclosures: Resolution 6768, 6769 CC:Jonathan Yao or Cathy Li, 1029 White Oak Dr,San Jose Ca 95129 TR-2014-42 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 RESOLUTION NO. 6769 OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO APPROVING THE REMOVAL OF THREE PROTECTED TREES: A 17.7"/16.8", 26.6" AND 23.1" DIAMETER COAST LIVE OAKS IN CONJUNCTION WITH THE DEVELOPMENT OF A SINGLE FAMILY HILLSIDE RESIDENCE AT 21730 RAINBOW DRIVE (APN: 366-37-007) SECTION I: PROTECT DESCRIPTION Application No.: TR-2014-42 Applicant: Daryl Harris Property Owner: Jonathan Yao&Cathy Li Location: 21730 Rainbow Drive (APN: 366-37-007) SECTION II: FINDINGS FOR TREE REMOVAL WHEREAS, the Planning Commission of the City of Cupertino received an application for tree removal, as described in Section I of this Resolution; and WHEREAS, the necessary public notices have been given in accordance with the Procedural Ordinance of the City of Cupertino, and the Planning Commission has held at least one public hearing on this matter; and WHEREAS, the Planning Commission finds the following with regard to this application: 1. 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). NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of the 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,: The application for a Tree Removal Permit, Application No. TR-2014-42, 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-2014-42 as set forth in the Minutes of Planning Commission Meeting of November 25, 2014, 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 arborist report titled: "A Review of Proposed Construction/ 21730 Rainbow Drive/ APN 366-37-007/ Cupertino, California" dated October 16 and 28, 2014, consisting of 6 pages, prepared by Michael L. Bench, Consulting Arborist, except as may be amended by conditions in this resolution. Trees approved for removal are depicted on the Tree Map Site Plan prepared by Michael L. Bench and numbered on the map: 6, 30, and 33. In the course of construction activities, the applicant Resolution No. 6769 TR-2014-42 November 25,2014 shall attempt to protect trees numbered 6 and 30. Should those attempts fail and the oaks decline from the damage, the applicant retains the right to remove and replace those oaks. 2. CONCURRENT APPROVAL CONDITIONS The conditions of approval contained in file no. EXC-2014-09 shall be applicable to this approval. 3. TREE REPLACEMENT For each of the oaks referenced above approved for removal, the applicant shall plant two 24-inch box Coast Live Oaks. Replacement locations shall be approved by the Community Development Director with the primary objective to screen the front retaining walls from public street views and secondarily, views of the proposed trail from the proposed residence. 4. TREE PROTECTION Prior to building permit issuance, the development plans shall be revised to the satisfaction of the Director of Community Development to create greater buffering distance between the protected trees along the driveway and residential improvements. This should include a slight realignment of the driveway to better protect upslope oaks, and the siting of storm flow lines and other constructed drainage features to avoid the canopy driplines of the protect oaks. Tree protection fencing shall be erected to protect oaks slated for protection from construction activities. The tree protection measures shall be placed in the construction plan set. A report ascertaining the good health of the trees mentioned above shall be provided prior to issuance of final occupancy. 5. 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 Govemment 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. 6. PERMIT EXPIRATION The subject tree removal permit approval shall expire two (2) years from the date of approval if not used. Resolution No. 6769 TR-2014-42 November 25,2014 PASSED AND ADOPTED this 25th day of November 2014, at a Regular Meeting of the Planning Commission of the City of Cupertino, State of California,by the following roll call vote: AYES: COMMISSIONERS: Chair Brophy, Vice Chair Lee, Gong, Sun, Takahashi NOES: COMMISSIONERS:none ABSTAIN: COMMISSIONERS: none ABSENT: COMMISSIONEIZS: none ATTEST: APPROVED: /s/Gary Chao /s/I'aul Brophy Gary Chao, Assistant Director Paul Brophy, Chair Community Development Dept. Planning Commission l � �� �� �,r,,,.- Michael L.Bench ° � ' ' • � - � � Consulting Arborist � (:�L-�,2�,y�c f-� C � (831) 594-5151 ; . '', '/ ���2�`i�-1�� ,� L.. � ' __ � , . ^��� 7327 Langley Canyon Road � � v.� � Prunedale,California 93907 � �._r""\� . �l��5'._%�f" � � � : , `.'.��--- A Review of Proposed Construction � . _ 21730 Rainbow Drive arN - - �6�_37���-� . . � Cupertino, California �, . ,d v;�� _ � <'� -. ._._ . :�LL.��.�. - Assignment I was asked by Colin Yung, Planner, City of Cupertino, to review the plans to construct a 5213 square foot residence with a 1412 square foot basement on a vacant lot at 21730 Rainbow Drive, Cupertino, California. An Arborist's Report, dated 12-17-13, had previously been done by Mr. Richard Smith. Observations . I initially inspected the site on October 16, 2014 but discovered that the majority of the property was covered with dense poison oak(Toxiodendron diversiloba), to which I react unless I use protective clothing. I returned to the site on October 28, 2014 using protective clothing. The first tree I encountered upon entering the site was Tree # 29, planned to be preserved adjacent to the proposed new driveway. Mr. Smith reported Tree #29 to have a trunk diameter of 12 inch. I immediately recognized that this was an error, because Tree# 29 has 3 trunks, each having a diameter measurement of approximately 12 inches. Consequently the trunk of Tree #29 was grossly understated by Mr. Smith. Another example, is Tree#23, reported to have a trunk diameter of 6 inches, but in fact has a trunk diameter of 18.3. Between Trees #23 and#24 is a small tree having a trunk measurement of 6.1 inches. I concluded that Mr. Smith had used the notation on the civil plan by the surveyor, rather than measuring the trees himself. As I proceeded to measure the trees myself, I observed that all of the trunk diameters noted in the report by Mr. Smith were all exactly the same as the notions by the surveyor on the plan. In my experience, the majority of surveyors measure trees differently than arborists, and for this reason, it is essential that an arborist must perform his/her own measurements. This is a critical element, but it is the starting point, on which recommendations about preservation are based, along with species tolerances, health, structure, and specific site conditions. Prepared by Michael L. Bench, Site Observations: 1 Consulting Arborist October 16 and 28, 2014 21730 Rainbow Drive Cupertino, California I consequently performed trunk measurements of all of those trees located near proposed construction. I used a Diameter Tape, which measures in inches, including 1/10 of an inch. The attached List of Trees presents 2 types of ineasurements as follows: 1. The trees I measured include those trees with trunk measurements in inches and tenths (i.e., Tree # 5 has a trunk diameter of 7 inches and 8 tenths of an inch at 54 inches above grade). Trees with more than one measurement and a"/ "mark between the numbers, indicates a tree with more than one trunk. Where possible, a single measurement was done below the lowest trunk fork(s), but this measurement is often below 54 inches below grade. This method is in accordance with the International Society of Arboriculture (ISA) standards, Guide to Plant Appraisal, 9�'Edition. 2. Those trees listed as having a trunk measurements in parentheses (i.e., Tree# 1 - "6") is the measurement by Mr. Smith,which is the surveyor's measurement. Because it does not appear that these trees would be impacted by construction, I saw no need to measure them accurately by arboriculture standards. Trees# 7 and# 12 have been mis-identified. Tree #7 is of the Prunus species, and is likely a Wild Plum, a species which self seeds. However, with only a few leaves and no flowers or fruit, I am not 100% certain of the species, but it is certainly of the genus Prunus. � Tree# 12 is a multi-stem Toyon (Heteromeles arbutifolia). This appeared logical as there axe no other oak trees in the immediate area, where Tree # 12 is shown. I could not find any tree with the tag of# 12. I located the tags on all of the trees, which I measured. I have added Trees # 34 and# 35 to the List of Trees. These two were not included in the report by Mr. Smith, but they are near the proposed construction area. A portion of the Site map is attached showing their locations. The Site Map uses the numbers # 34-38 to indicate locations of possible replacement trees. I have replaced those numbers with the letter "R"to indicate a possible location for replacement specimens. Risks to Trees By Proposed Construction The Plan proposes to remove Trees # 7 for construction of a pool, to remove Tree# 12 for construction of the residence, to remove Tree # 22 for driveway/Fire Department turn-around, and to remove Tree# 33 for the construction of the driveway. Tree #7 is not a tree protected by the City Tree Ordinance, but Tree# 6, a Coast Live Oak(Quercus agrifolia) is a protected tree. Tree # 6 is a dual stem specimen having trunks measuring 17.7 and 16.8 inches DBH. Tree # 6 would suffer severe root damage by the grading required to construct the proposed retaining walls,pool, and pool deck. If constructed as planned, I would not expect Tree # 6 to live but a few years. As such, I would consider Tree# 6 a total loss. For Tree# 6 to be expected to survive in good condition, there must be no grading within 18 feet of the trunk. The proposed features Prepared by Michael L. Bench, Site Observations: 2 Consulting Arborist October 16 and 28, 2014 21730 Rainbow Drive Cupertino, California must be located to achieve this objective. This would include relocation of the proposed Storm Drain, currently shown outside the retaining wall of the pool deck. A retaining wall is proposed within approximately 5 feet of Tree# 5, a 7.8 inch diameter Coast Live Oak(Q. agrifolia). The grading required to constxuct the retaining wall would apparently be done within 1-2 feet of the trunk of Tree# 5. Should this construction be done, Tree# 5 would not survive. If the angle were changed as shown on the attached Mark-Up of the Site Plan, Tree # 5 could be expected to survive. This presumes the grading cut for the drain behind the wall would be done a minimum distance of 10 feet from the trunk of Tree # 5. It would be essential for the plans to show the extent of grading near this tree and all of the trees around the proposed residence. Grading contractors often consider the plans to be "guidelines"not strict limits of grading. In this case, strict limits of grading must be required. Tree # 12, a Toyon (Heteromeles arbutifolia), is an indigenous species,but is typically regarded as a shrub. Tree #22, a 9.0 inch diameter DBH Coast Live Oak in good condition, would be removed for grading of the driveway and the Fire Department turn-around requirement. Tree # 33, a 23.1 inch diameter DBH Coast Live Oak would be removed as a result of the Cut and Fill required to construct the driveway. However, the effect of the Fill area would cover a large percenta.ge of the root zone of Tree# 32 and a small portion of the root zone of Tree# 31. This would have the effect of"smothering"the roots of Tree# 32,because roots require an exchange of gases, especially oxygen, in addition to moisture. Tree # 32 would not be expected to survive. Fill and related construction must be a minimum radius of 20 feet from the trunk of Tree# 32 to expect this tree to survive in good condition. Two retaining walls are planned to be constructed inside the root zone of Tree# 30 on the southeast side of its trunk. Grading Fill is proposed on the southwest side of the trunk. A percentage of the canopy would also require removal for clearance on the uphill side. Canopy loss and root loss within a construction period are not independent and unrelated events. Both are considered damage and must be considered as a whole. I would not expect Tree # 30 to survive these events. A Storm Drain is proposed to cross the root zones of Trees # 30 and# 32, as shown on the Grading and Drainage Plan, C-l. A Bio-Retention Basin is proposed within the root zones of Trees# 32 and# 31. Trees# 30 and# 32 would not be expected to survive, irrespective of the previously described proposed features. Tree # 31 would likely suffer at least moderate root damage. On the uphill side of the driveway, a Storm Drain is proposed across the root zones of Trees # 23, 27, and 29, as shown on the Grading and Drainage Plan, C-1. The trench would be approximately 6 feet from Tree#23, approximately 4 feet from Tree#27, and 4 feet from Tree# 29. These trees would not be expected to survive. Prepared by Michael L. Bench, Site Observations: 3 Consulting Arborist October 16 and 28, 2014 21730 Rainbow Drive Cupertino, California The Grading and Drainage Plan C-1 shows the basic grading plan, but I question whether or not it shows the finished grading plan. For example, a cut will be done on the up slope side of the driveway and a fill will be done on the down slope side of the driveway. In my experience, additional grading would be required on the up slope side in order to "Bevel" or blend the existing slope to the top edge of the driveway. This type of grading often appears to be considered incidental. However, the extent of this additional grading my be very significant for the survival of 13, 23, 24, 27, 28, and 29. In my opinion,this fine grading must be added to the proposed plans for the full impact to these trees to be accessed. The excavation for the basement and the building pad will result in a great deal of excessive soil. The plans for the excess soil must be addressed. Loose or excess soil must be prevented from moving down slope. This is a significant risk over the long term for the trees which exist down slope. Conclusions It appears that Trees #22 and# 33 would be removed and replaced. Several additional significant indigenous oak trees would be at risk of survival by the proposed plans. Recommendations I recommend that the following radius distances between the trunks of the following trees and construction features be achieved by design revisions: Tree# 5— 10 feet Tree#6— 18 feet Tree#23 — 15 feet Tree#27— 13 feet Tree#29— 18 feet Tree# 30—22 feet Tree# 32—24 feet Respectfully submitted, �� Michael L. Bench, Consulting Arborist International Society of Arboriculture Certification# WE 1897A American Society of Consulting Arborists Member Prepared by Michael L. Bench, Site Observations: 4 Consulting Arborist October 16 and 28, 2014 21730 Rainbow Drive List of Trees Cupertino,California Field Data Sheet Trunk Healt Structure CD w/IB=Co- DBH= Diameter h 1-S= dominant Diameter at Breast Height= In Inches 1-5= Good to Leaders��ith 54 inches Above Grade Good Poor Imbedded Bark to Poor Tree Name DBH Health Structura Overali Notes I Condition . . _..:_._._..._. �.-- ._._:__ .�.:.._. 1 Coast Live Oak "6" 1-2 2-3 Goo� (Quercus agrifolia) _. . _ __ __. . _,_.. 2 Coast Live Oak "20" ' 1-2 ! 2-3 Good , , , � __ , , __ _. . ---- ---- --------- 3 Coast Live Oak 'I"8" � 1-2 ' 2-3 jGood - , -- ----- _-- 4 Coast Live Oak ',25.6/12.0 1 1 Excellent 5 Coast Live Oak ,7.8 1 3 Good _---- --_ -- , _ _. - ------ - 6 Coast Live Oak ',17.7/16.8 ' 1 3 Good i CD w/IB 7 Wild Plum i8.1 1 1 IExcellent . . . . (Prunus cerasifera) ' ; _ _ ,. _ __------- 8 Coast Live Oak '�"8" �� 1-2 �� 2-3 Good _ . __ __ 9 Coast Live Oak 8 � 1-2 2-3 Good i�� -- - . - -- — 10 Coast Live Oak 10" 1-2 I 2-3 Good , _ , ---- 11 Coast Live Oak "14" , 1-2 ! 2-3 Good . _ , -- __---- — 12 Toyon 5.2/2.3 1 � 2 Good �� (Heteromeles arbutifolia) I � __-- --- ----._, _.._ , __ , __ ---- �--- --_- 13 Coast Live Oak i 12.1/12A , 1 3 Good �CD w/IB 14 Coast Live Oak 12.2 � [ 1 2 Good ��� i _- �__ . _ _ _ ,__-- ---- 15 Valley Oak 7.0 f 5 2 Poor (Quercus lobata) ' � _-- 16 Coast Live Oak �"6 � 1-2 i 2-3 'Good 17 Coast Live Oak �"8" i 1-2 ' 2-3 �Good ' _._ _.__._.___--- --_ 18 Coast Live Oak "'30" � 1-2 � 2-3 �Good _----_ . __ _ .__ 19 Coast Live Oak "10° 1-2 2-3 Good 20 Coast Live Oak 4.7 I 1 I 2 Good , , _ _ _ --— 21 Coast Live Oak 11.1 � 1 3 Good CD w/IB _— ' _- 22 Coast Live Oak 9.0 1 2 Good . .__ __ , ---- - ---- -- --- 23 Coast Live Oak 18.3 1 1 3 Fair-Good Previous CD Failure, j Cavity at Base Compartmentalized I _ , - __ __ _____ 24 Coast Live Oak 13.2/10.6 1 2 Good i _ _' ------- ------- � _ .. _ _------- ------ i t-- 25 Valley Oak "8" Dead . , --- , __ — 26 Coast Live Oak 21.3 1 3 Good �CD w/IB --- 27 Coast Live Oak 14.6 , 1 i 2 Good i -- . - - __------ --- 28 Coast Live Oak 16.7 { 1 � 2 Good � ---' - � . _ 29 Coast Live Oak '12.6/12.3 , 2 3 Fair 'Moderately Dense Canopy; '/11.9 ' 'CD w/IB _ - __ ,- _ __ - - - _ _ ___ ___ 30 Coast Live Oak 26.6 , 1 1 Excellent � : _ __ ___ __---_ _ _____ 31 Coast Live Oak �24.5 I 1 2 �Good __; -.. ------ 32 Coast Live Oak 28.7 1 � 1 ;Excellent ; - ---- -- 33 Coast Live Oak 23.1 1 2 'Good _ _ _ . _ _ . __ -- -- 34 Coast Live Oak 6.2 2 2 Good 35 Valley Oak 6.1 ; 3 2 �Fair Prepared by Michael Bench Site Observatios: Consulting Arborist October 16 and 28,2014 Tr+ee ?.'��°!�p , A M�rk-iJ�►of tk�e Sit� I'I�n Sit�, �17�R�it�b+o►w i�rive ' APN 33tr-t1 !�ap+�ri�ino,�'a�ffarni� Ubs�er�r�tioas: 1�i-28-1� l�ct�aet I�.�nch Con�u�t����t�roria# � � '-.. `-, .� `4 A y� � �j )R r f� r � f(�� fl � fi "� ! ,� � \ � � �`'�,� ���� l"� �i. • • or a � iona . n orma ion . ee � e _ _