DRC Summary 01-21-2021To:
From:
Date:
Subj:
Mayor and City Council Members
Planning Commissioners
Benjamin Fu, Director of Community Development
January 29, 2021
REPORT OF DESIGN REVIEW COMMITTEE FINAL DECISIONS MADE
January 21, 2021
Chapter 19.12.170 of the Cupertino Municipal code provides for
Appeal of decisions made by the Design Review Committee
1.Application
EXC-2020-006, Manju Radhakrishnan (Radhakrishnan residence), 10330 Menhart Ln
Description
Fence Exception to allow a six (6) foot front yard fence in the required 20’ front yard
setback area.
Action
The Design Review Committee approved the application on a 2-0-0 vote. This is effective
January 21, 2021. The fourteen-calendar day appeal will expire on February 4, 2021.
Enclosures:
Design Review Committee Report of January 21, 2021
Resolution No(s). 334
Plan set
OFFICE OF COMMUNITY DEVELOPMENT
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
(408) 777-3308 • FAX (408) 777-3333 • planning@cupertino.org
DESIGN REVIEW COMMITTEE STAFF REPORT
Meeting: January 21, 2021
Subject
Fence Exception Permit to allow a six foot high fence within a required 20 foot front yard
setback area. (Application No.: EXC-2020-006; Applicant: Manju Radhakrishnan;
Location: 10330 Menhart Lane; APN: 375-16-017)
Recommended Action
That the Design Review Committee adopt the draft resolution (Attachment 1) to:
1. Find the project exempt from CEQA; and
2. Approve the Fence Exception (EXC-2020-006).
Discussion
Project Data:
General Plan Designation: Low Density (1-6 DU/Ac.)
Zoning Designation: R1-5
Lot Area: 5,862 sq. ft.
Floor Area: 2,627 sq. ft. (44.83% FAR)
1st Floor Setbacks Allowed Existing
Front 20’-0” 20’-3”
Side Combined 15’ 10’-0” right, 5’-0” left
Rear 20’-0” 20’-0”
2nd Floor Setbacks Allowed Existing
Front 25’-0” 25’-0”
Side Combined 25’ 15’-0” right, 15’-0” left
Rear 25’-0” 25’-0”
Project Consistency with
General Plan: Yes
Zoning: No, exception requested for six-foot tall fence in the
front setback area
Environmental Assessment: Categorically Exempt
Project Location:
The project site is located on
Menhart Lane, approximately 150
feet west of the intersection of
Menhart Lane and Wunderlich
Drive in the Rancho Rinconada
neighborhood. The property is
surrounded by other single-family
homes to the north, south, east and
west.
Background:
In 2016, a Two-Story Permit (R-2016-
20) was approved to allow the construction of a new two-story home. The proposed home
met all development regulations, including setback requirements for Single Family
Homes, per Cupertino Municipal Code Chapter 19.28.
The lot only has three property lines and is effectively triangular in shape. Based on the
Municipal Code, the property only needs to provide a 20 foot rear setback in the form of
an arc from the intersection of the two side property lines. This results in the creation of
a smaller rear yard, and a larger front yard due to unique shape of the lot. The Cupertino
Municipal Code Chapter 19.48 allows a three-foot high fence within the front-yard area;
however, the applicant is requesting a six-foot fence high fence for purposes of privacy.
Currently, there is no front yard fence existing on this property.
Discussion:
The applicant is proposing to enclose a portion
of the front yard by constructing a six-foot-tall
fence along the southern property line, which
would then veer roughly 30 degrees to the
north, to avoid an existing shrub, till it reaches
the western (front) property line. The fence
would then continue along the western (front)
property line for a length of approximately 41
feet, and then make a 90-degree turn and
terminate at the house. A gate will also be
installed for continued access to a concrete
walk in the front yard (see Figure 2 – fence
outlined in red, green and blue)
Figure 1: Vicinity Aerial (subject property outlined in blue) Wunderlich Dr. Figure 2: Area of Work at 10330 Menhart Ln
Per the Cupertino Municipal Code, fences located within required front setback areas and
up to five feet from the property line in a required street side setback area must be no
taller than three feet
for visibility and light
and air purposes. The
property appears to
be a corner property
due to the curved
front property line.
Fences taller than
three feet must be
located a minimum of
five feet along a
required street side
setback.
The sidewalk in this neighborhood is a monolithic sidewalk meaning that the sidewalk
is adjacent to the street curb (see Fig. 2) and the front property line is setback 5’5” from
the sidewalk (see Fig. 3) and 9’5” from curb line. Due to the distance from the curb, the
perceived setback of the fence from the sidewalk, the appearance of the property as a
corner lot, and the existing development on the property, the proposed location of the
fence is acceptable.
The proposed fence does not impede into the adjacent neighbor’s site lines when entering
or exiting their driveway, and additionally the applicant has proposed the fence in a
manner to not damage an existing shrub along the south property line.
Typical rear yards in R-1 zones are the lot width (usually between 51 and 57 ft in the bulk
of the Rancho Rinconada neighborhood) times 20 (the rear yard setback requirement),
giving the average single-family residential property owner at least 1,020 - 1,140 sq. ft. as
a private rear yard space. This property, however, has an approximately 332 sq. ft. rear
yard with some usable side yard. Allowing a front yard fence in the proposed location,
would add approximately 800 s.f. of private outdoor space for the applicants, while
maintaining distance from the public street and minimizing impacts to the pedestrian
experience.
Public Works staff has reviewed the proposal, and do not have any issues with the
location of the fence.
Figure 3: Section Elevation
As a condition of approval, the applicant will be required to remove the fence in the event
of complete redevelopment of the property that improves the ability to provide a yard in
a better location.
Tree Protection
As a condition of approval, a covenant shall be recorded on the two front yard trees
within the fenced area to protect and maintain them, since the applicant has indicated
that the location of the proposed fence is in part to preserve these trees. Should the trees
have to be removed due to ill-health in the future, they shall be replaced with a protected
tree.
Environmental Assessment
This project is categorically exempt from the requirements of the California
Environmental Quality Act (CEQA) per Section 15301 Existing Facilities (Class 1)
consisting of new copy on existing on and off-premise signs.
Public Outreach and Noticing
The following table is a brief summary of the noticing done for this project:
Notice of Public Hearing and Intent,
Site Notice & Legal Ad
Agenda
Site Signage (10 days prior to the hearing)
11 public hearing notices mailed to
adjacent property owners (10 days prior
to the hearing)
Posted on the City’s official notice bulletin
board (one week prior to the hearing)
Posted on the City of Cupertino’s website
(one week prior to the hearing)
No public comments have been received as of the date of production of this staff report.
Permit Streamlining Act
This project is subject to the Permit Streamlining Act (Government Code Section 65920 –
65964). The City has complied with the deadlines found in the Permit Streamlining Act.
Project Received: October 22, 2020; Deemed Incomplete: November 11, 2020
2nd Submittal Received: December 16, 2020;
Deemed Complete: January 5, 2020
The City has up to 60 days from the date of deeming the project complete (until February
31, 2021) to make a decision on the project.
Conclusion
Staff recommends approval of the project since the conditions of approval address all
concerns related to the proposed project and all of the findings for approval of the
proposed project are consistent with Chapter 19.48: Fences of the Cupertino Municipal
Code.
Next Steps
Should the project be approved, the Design Review Committee’s decision on this
proposal is final unless an appeal is filed within 14 calendar days of the date of the
decision, on February 4, 2021. The applicant may apply for building and other permits at
the end of the appeal period.
This approval expires on January 21, 2022, at which time the applicant may apply for a
one-year extension.
Prepared by: Lauren Ninkovich, Assistant Planner
Reviewed and Approved by: Piu Ghosh, Planning Manager
ATTACHMENTS:
1 – Draft Resolution
2 – Plan Set
EXC-2020-006
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 334
OF THE DESIGN REVIEW COMMITTEE OF THE CITY OF CUPERTINO
APPROVING A FENCE EXCEPTION TO ALLOW THE CONSTRUCTION OF A 6
FOOT FENCE IN THE FRONT SETBACK AREA OF A SINGLE-FAMILY RESIDENCE
SECTION I: PROJECT DESCRIPTION
Application No.: EXC-2020-006
Applicant: Manju Radhakrishnan
Location: 10330 Menhart Ln, APN: 375-16-017
SECTION II: FINDINGS
WHEREAS, the Design Review Committee of the City of Cupertino received an
application for an Exception from the Residential Single Family Zoning regulations as
described in Section I. of this Resolution; and
WHEREAS, the Project is Categorically Exempt from the requirements of the California
Environmental Quality Act pursuant to Section 15303 Class 3 (New construction or
conversion of small structures); and
WHEREAS, the necessary notices have been given in accordance with the Procedural
Ordinance of the City of Cupertino, and the Design Review Committee has held at least
one Public Meeting on this matter; and
WHEREAS, the applicant has met the burden of proof required to support said
application; and
WHEREAS, the Design Review Committee finds the following with regard to the
exception for this application:
1. The literal enforcement of the provisions of this chapter will result in restriction
inconsistent with the spirit and intent of this chapter.
The proposed fence location has been designed to meet the intent of the chapter
by providing a six foot fence, a height allowed without a permit in other areas of
the property, in a location that provides privacy for the applicants but is minimally
intrusive to the adjacent property owners and pedestrians.
Resolution No. 334 EXC-2020-006 January 21, 2021
Page - 2 -
2. The granting of the exception will not result in a condition which is materially
detrimental to the public health, safety or welfare.
The fence location will not be detrimental to public health, safety or welfare
because the fence location is generally consistent with the City’s fence ordinance,
and the fence will provide privacy for property owners.
3. The exception to be granted is one that will require the least modification of the prescribed
regulation and the minimum variance that will accomplish the purpose.
The fence height and material is consistent with the ordinance. Placement of the
fence location is consistent with that of a key lot, and the placement of the fence
would be consistent with the requirements of street side fence location.
4. The proposed exception will not result in a hazardous condition for pedestrian and
vehicular traffic.
The proposed fence is along the property line which is located five (5) feet five (5)
inches from the sidewalk and provides adequate pedestrian accessibility.
Additionally, Public Works has reviewed the site plan, and has determined that
the proposed fence location will not be detrimental to vehicular traffic.
5. The proposed development is otherwise consistent with the City’s General Plan and with
the purpose of this chapter as described in Section 19.48.010
The proposed fence is otherwise consistent with the City’s General Plan and with
the purpose of the Fence Ordinance since fences are permitted in all single-family
residential zones.
6. The proposed development meets the requirements of the Santa Clara Fire Department
and Sheriff’s Department, and if security gates are proposed, that attempts are made to
standardize access.
The proposed fence is a standard 6 foot tall fence. The Santa Clara Fire Department
and the Sheriff’s Department are normally concerned when security gates are
proposed. The projects proposes no security gates.
7. The fence height for the proposed residential fence is needed to ensure adequate screening
and/or privacy.
The six-foot fence height is consistent with the allowable fence height which is to
aid in providing privacy.
Resolution No. 334 EXC-2020-006 January 21, 2021
Page - 3 -
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 3 thereof, the application for an Exception to the Fence Ordinance
regulations, Application no. EXC-2020-006 is:
1. Exempt from CEQA and
2. Hereby APPROVED, and
That the sub-conclusions upon which the findings and conditions specified in this
Resolution are based and contained in the Public Meeting record concerning Application
no. EXC-2020-006 as set forth in the Minutes of Design Review Committee Meeting of
January 21, 2021 and are incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
The approval is based on the plan set titled “Request for Privacy Fence” consisting of
eight (8) sheets, except as may be amended by the Conditions contained in this
Resolution.
2. 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.
3. ACCURACY OF THE PROJECT 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. FRONT YARD TREE COVENANTS
Prior to construction of the fence, a covenant will be recorded to protect the two
fruitless mulberry trees in the front yard as Protected Trees. Should either tree be need
to removed due to ill-health, demonstrated by an ISA-certified Arborist report, the
tree shall be replaced in the vicinity by a Protected Tree.
Resolution No. 334 EXC-2020-006 January 21, 2021
Page - 4 -
5. FUTURE REDEVELOPMENT OF THE PROPERTY
In the event the property is redeveloped, the location of the front yard fence shall be
reevaluated for appropriateness of location or a reduction in height.
6. DUST CONTROL
The following construction practices shall be implemented during all phases of
construction for the proposed project to prevent visible dust emissions from leaving
the site:
a) Water all exposed surfaces areas (e.g., parking areas, staging areas, soil piles,
graded areas, and unpaved access roads) at least twice daily and more often
during windy periods to prevent visible dust from leaving the site; active areas
adjacent to windy periods; active areas adjacent to existing land uses shall be kept
damp at all times, or shall be treated with non-toxic stabilizers or dust palliatives.
b) All haul trucks transporting soil, sand, or other loose material off-site shall be
covered.
c) All visible mud or dirt track-out onto adjacent public roads shall be removed
using wet power vacuum street sweepers at least once per day. The use of dry
power sweeping is prohibited.
d) All vehicle speeds on unpaved roads shall be limited to 15 mph.
e) All roadways, driveways, and sidewalks to be paved shall be completed as soon
as possible. Building pads shall be laid as soon as possible after grading unless
seeding or soil binders are used.
f) Idling times shall be minimized either by shutting equipment off when not in
use or reducing the maximum idling time to 5 minutes (as required by the
California airborne toxics control measure Title 13, Section 2485 of California Code
of Regulations [CCR]). Clear signage shall be provided for construction workers
at all access points.
g) All construction equipment shall be maintained and properly tuned in
accordance with manufacturer’s specifications. All equipment shall be checked by
a certified mechanic and determined to be running in proper condition prior to
operation.
h) Post a publicly visible sign with the telephone number and person to contact at
the Lead Agency regarding dust complaints. This person shall respond and take
corrective action within 48 hours. The Air District’s phone number shall also be
visible to ensure compliance with applicable regulations.
Resolution No. 334 EXC-2020-006 January 21, 2021
Page - 5 -
The applicant shall incorporate the City’s construction best management practices
into the building permit plan set prior to any grading, excavation, foundation or
building permit issuance.
7. 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 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.
Resolution No. 334 EXC-2020-006 January 21, 2021
Page - 6 -
SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS
DEPARTMENT
1. FENCE IMPROVEMENTS
It shall be the owner’s and contractor’s responsibility to ensure the new fence location
and height are installed per the approved plan. The fence shall not encroach into the
public right-of-way and shall not impede lot drainage towards the public street.
PASSED AND ADOPTED this 21st day of January 2021, at a regular meeting of the Design
Review Committee of the City of Cupertino by the following roll call vote:
AYES: MEMBERS: Chair Wang, Fung
NOES: MEMBERS: none
ABSTAIN: MEMBERS: none
ABSENT: MEMBERS: none
ATTEST: APPROVED:
/s/Lauren Ninkovich /s/R Wang
Lauren Ninkovich R Wang, Chair
Assistant Planner Design Review Committee
Site PlanNew wooden fence1’ kickboard, 4’ fence, and 1’ lattice for a total of a 6’ tall fence.Increase height of existing fence to 6’ to match the new fenceNew 6 feet tall wooden gate20’7”5’5”2’6”8’6”4’41’18’9”17’9”8’9”Patio Area 333 sq feetNew yard 840 sq feet(N) 6’ Hi wood fence