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TR-2018-05 res.docCITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 RESOLUTION NO. 91 OF THE ADMINISTRATIVE HEARING OFFICER OF THE CITY OF CUPERTINO TO ALLOW THE REMOVAL AND REPLACEMENT OF A PROTECTED 37" COAST LIVE OAK TREE TO FACILITATE THE CONSTRUCTION OF A NEW SINGLE FAMILY HOME AT 22561 ALCALDE ROAD (APN 342-29-063) SECTION I: PROTECT DESCRIPTION Application No.: TR -2018-05 Applicant: Cindy Hsu Location: 22561 Alcalde Road (APN 342-29-063) SECTION II: FINDINGS WHEREAS, the Administrative Hearing Officer of the City of Cupertino received an application for a Tree Removal Permit as described in Section I of this Resolution; and WHEREAS, prior to the Administrative Hearing, the Environmental Review Committee heard the item on March 1, 2018 during which it reviewed the Draft Mitigated Negative Declaration, received public comments, and recommended adoption of a Mitigated Negative Declaration on a 5-0 vote; and WHEREAS, on April 12, 2018 the Administrative Hearing Officer adopted the Initial Study/Draft MND as the Final Initial Study/Mitigated Negative Declaration for the project after adopting all the identified mitigation measures as conditions of approval for the project; and WHEREAS, the necessary notices have been given in accordance with the Procedural Ordinance of the City of Cupertino, and the Administrative Hearing Officer has held one or more Public Hearings on this matter; and WHEREAS, the applicant has met the burden of proof required to support said application; and Resolution No. 91 TR -2018-05 April 12, 2018 Page 2 WHEREAS, the Administrative Hearing Officer finds: 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); The 37" Coast Live Oak at its location on the newly formed lot (Lot B) is situated in a location on the parcel that would severely restrict a reasonably sized home, as compared to the surrounding neighborhood, from being built. The City's Municipal Code allows removal of such trees as long as appropriate replacements are planted. NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter, the Application No. TR -2018-05, 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 TR -2018-05 as set forth in the Minutes of the Administrative Hearing Meeting of April 12, 2018, and are incorporated by reference herein. SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPARTMENT 1. APPROVED EXHIBITS Approval is based on the arborist report entitled, "Arborist Report, Evaluation of a Coast Live Oak Tree at: 22561 Alcalde Road, Cupertino," prepared by Kurt Fouts (#WE -0681A), dated February 8, 2018 consisting of eleven (11) sheets inclusive of a landscape plan; except as may be amended by conditions in this resolution. 2. CONCURRENT APPROVAL CONDITIONS The conditions of approval contained in file nos. TM -2017-02 (EA -2017-02), R- 2018-08, and R-2018-09, shall be applicable to this approval. 3. TREE REPLACEMENT SIZE AND LOCATION The applicant shall plant, at a minimum, a 36 -inch box Coast Live Oak tree in the front yard of Lot B to the satisfaction of the City, in consultation with the City's arborist for the tree proposed to be removed in conformance to the replacement guidelines per Cupertino Municipal Code Section 14.18.160. The size of the Resolution No. 91 TR -2018-05 April 12, 2018 Page 3 proposed replacement trees shall 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. 4. 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 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. 5. 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 replacements trees on site upon sale of the property. 6. INDEMNIFICATION Except as otherwise prohibited by law, the applicant shall indemnify and hold harmless the City, its City Council, and its officers, employees and agents (collectively, the "indemnified parties") from and against any claim, action, 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 to attack, set aside, or void this Resolution 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 days following receipt of invoices from City. Such attorneys' fees and costs shall include amounts paid to counsel not otherwise employed as City staff and shall include City Attorney time and overhead costs and other City staff Resolution No. 91 TR -2018-05 April 12, 2018 Page 4 overhead costs and any costs directly related to the litigation reasonably incurred by City. 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 12th day of April, 2018 at a noticed Public Hearing of the Administrative Hearing Officer 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. ATTEST: /s/Gian Paolo Martire Gian Paolo Martire Associate Planner APPROVED: /s/Benjamin Fu Benjamin Fu Asst. Director of Community Development