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TR-2015-27bFebruary 13, 2017 Browman Development Attn: Aaron Zuzack 1556 Parkside Dr. Walnut Creek, Ca. 94596 OFFICE OF COMMUNITY DEVELOPMENT CITY HALL 10300 TORRE AVENUE ^ CUPERTINO, CA 95014-3255 (408) 777-3308 o FAX (408) 777-3333 ^ planning cupertino.org SUBJECT: ADMINISTRATIVE HEARING MEETING ACTION LETTER — ASA -2015-14, ASA -2015- 28, TR -2015-27, SP -2015-06 This letter confirms the decision of the Administrative Hearing Officer, given at the meeting of February 9, 2017; approving an Architectural and Site Permit to allow for building fagade improvements and site modifications at the McClellan Square Shopping Center; a Tree Removal Permit to allow the removal and replacement of twenty-nine protected trees; and a Sign Program approval to allow modifications to the Master Sign Program, located at 10385-10497 S. De Anza Boulevard, according to Resolution Nos. 76, 77 and 78. Please be aware that if this permit is not used within one year, it shall expire on February 9, 2018. Also, please note that an appeal of this decision can be made within 14 calendar days from the date of this decision. If this happens, you will be notified of a public hearing, which will be scheduled before the Planning Commission. Sincerely, Ellen Yau Assistant P1 er City of Cupertino Enclosures: Resolution No. 76, 77 and 78 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 RESOLUTION No. 77 OF THE ADMINISTRATIVE HEARING MEETING OF THE CITY OF CUPERTINO TO ALLOW THE REMOVAL AND REPLACMENT OF TWENTY-NINE PROTECTED TREES AT THE MCCLELLAN SQUARE SHOPPING CENTER LOCATED AT 10385-10497 S. DE ANZA BLVD (APN 359-17-019 and 359-17-023) SECTION I: PROTECT DESCRIPTION Application No.: TR -2015-27 Applicant: Aaron Zuzack (BDC Hayward LP) Location: 10385-10497 S. De Anza Blvd (APN 359-17-019 and 359-17-023) 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; WHEREAS, the project is categorically exempt from the California Environmental Quality Act (CEQA); WHEREAS, the necessary public notices have been given as required by the Procedural Ordinance of the City of Cupertino, and the Administrative Hearing Officer held a public meeting on February 9, 2017 in regard to the application; and WHEREAS, the Administrative Hearing Officer finds: 1. 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 City's consulting arborist has determined that some of the trees proposed for removal are in conflict with the proposed site improvements, destructive to adjacent paving and sidewalks, high- water consumers, displaying signs of poor conditions such as reduced canopies and poor form, and therefore, are not suitable for preservation or relocation. The proposed and/or existing structures or utility services that are in conflict with some of the trees proposed to be removed cannot be reasonably relocated or modified. 2. 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). Resolution No. 77 TR -2015-27 February 9, 2017 Page 2 The City's consulting arborist has determined that some of the trees proposed for removal particularly the trees along the street frontages are in conflict with the proposed site improvements, and are not suitable for preservation or relocation. In addition, the removed trees will be replaced with more appropriate trees that are low maintenance, provide adequate road clearance, and complement the existing street trees along S. De Anza Blvd. 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 - 2015 -27 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 -2015-27 as set forth in the Minutes of Administrative Hearing Meeting of February 9, 2017, 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 removal and replacement plan set dated January 20, 2017, consisting of two (2) sheets entitled, "McClellan Square, Cupertino" numbered as A5 and "McClellan Square - Conceptual Landscape Plan" drawn by James Ferguson Clabaugh, 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 -2015-14, ASA -2015-28, and SP -2015-06 shall be applicable to this approval. 4. TREE REPLACEMENTS The applicant is required to plant thirty (18) 24" box and thirteen (13) 36" box replacement trees in accordance with the replacement plan prior to final occupancy. 5. TREE REMOVAL PERMIT FOR MAIN DRIVEWAY TREES The applicant shall apply for and obtain a tree removal permit for the twelve (12) trees along the main driveway. These trees shall be removed and replaced with similar replacement species selected as part of TR -2015-27, prior to final inspections. t Resolution No. 77 TR -2015-27 February 9, 2017 Page 3 6. FINAL PLANTING PLAN The final planting plan shall be reviewed and approved by the Director of Community Development prior to issuance of building permits. The trees shall be planted prior to final inspections/occupancy and an ISA Certified Arborist shall confirm in a report that the replacement trees were planted properly and according to plan prior to 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. ® Signs indicating the protected status of the tree shall be installed on the protective fencing. e Tree protection conditions shall be posted on the tree protection fencing. ® No parking or vehicle traffic shall be allowed under root zones, unless using buffers approved by the Project Arborist. o 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. ® Retained trees shall continue to be irrigated or hand -watered to maintain them in good health. 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. Additionally, a report ascertaining the good health of the trees mentioned above shall be provided prior to issuance of final occupancy. Any trees identified to be in poor health or incongruent with the site -wide tree replacement plan in the report shall be required to be removed and replaced. 8. MAINTENANCE The property owner shall be responsible for ensuring that the existing trees and newly planted trees are properly maintained including but not limited to ensuring that there is adequate soil drainage, that the soil is well-aerated, and irrigation systems are thoroughly tested to provide sufficient water to landscaped areas while reducing water waste. Resolution No. 77 TR -2015-27 February 9, 2017 Paae 4 9. DISCLOSURE OF PROTECTED TREES AND COVENANT The property owner/applicant understands that the replacement trees may not be removed without a Tree Removal Permit and that they shall be responsible for ensuring the ongoing proper maintenance and care of the trees. The location and species of all replacements trees on site shall be disclosed upon sale of the property. In addition, a covenant shall be recorded on the property that identifies all the protected trees, prior to final occupancy. 10. CONSULTATION WITH OTHER DEPARTMENTS The applicant is responsible for consulting 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. 11. 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 overhead costs and any costs directly related to the litigation reasonably incurred by City. 12. 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. 77 TR -2015-27 February 9, 2017 Page 5 PASSED AND ADOPTED this 9th day of February, 2017 at a noticed Public Meeting 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/Ellen Yau Ellen Yau Assistant Planner APPROVED: /s/Benamin Fu Benjamin Fu Assistant Director of Community Development Tree Map A Mark-Up of the -Site Pian prolcr ,t Site.. 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