DRC Reso 334 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: PROTECT 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 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.
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 2151 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:
Z-aa"-ql 4)4;Pel�wl�li
Lauren Ninkovich R Wang, Chair
Assistant Planner Design Review Committee