Cupertino City Council
January 17, 2024

WHEREAS, the City Council finds:

1. The proposed development, at the proposed location, will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience; The current neighborhood character is a predominant pattern of residential use. Bianchi Way is accessed from Steven’s Creek Blvd. and is an approximately .06-mile cul-de-sac with ten parcel frontages along Bianchi Way. Of the ten parcels, eight are one-hundred percent residential use. The current residential uses are of similar densities, and blend of ownership and rental properties. The two remaining lots are commercial use with frontages on both Bianchi Way and Stevens Creek Blvd; both site’s parking lots are accessed from Stevens Creek Blvd and avoid Bianchi Way. The project scope has been determined to fall within Class 32 CEQA Exemption pursuant to CEQA Guideline Sections 15332 (Infill Development Projects). The incorporated conditions of approval into the project will further mitigate potential impacts and therefore the project will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience.

2. The proposed development will be located and conducted in a manner in accord with the Cupertino Comprehensive General Plan and the purpose of the City’s zoning ordinances.

The General Plan land use designation for the property is Commercial/Office/Residential.

The proposed residential use for townhome development is consistent with the General Plan. Further, the subject property is zoned as Planned General Commercial/Residential Site. The proposed development has met the applicable development standards of the Heart of the City Specific Plan and is requesting a density bonus and density bonus waivers for certain general plan and Heart of the City development standards as permitted in the City of Cupertino's Municipal Code Chapter 19.56 Density Bonus. Therefore, the proposed development is consistent with the purpose of the City's zoning ordinance.

3. The applicant has requested a density bonus. Pursuant to Cupertino Municipal Code Section 19.56.070, before approving an application that includes a request for density bonus, incentive, parking reduction and/or waiver, the decision-making body shall make the following findings, as applicable:
a. A finding that the residential project is eligible for the density bonus and any incentives, parking reductions or waivers requested.

The application is a for a density bonus project that provides for approximately 20% of its base density as Below Market Rate Housing. As 20% of the units on-site will be limited to median/moderate Income residents, it is eligible for a 15% density bonus.

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b. A finding that any requested incentive will result in identifiable, financially sufficient, and actual cost based on the financial analysis and documentation provided.

The applicant has requested a concession to remove tree #9 – a 38.5-inch Coast Live Oak tree. However, the application includes a tree removal permit to remove all trees on site.

Removal of the tree meets finding 14.18.180(1) and replacement standards per

14.18.160(B)(3) in-lieu tree replacement fee. Additionally, the applicant in attachment 6, outlines that the retention of tree #9 would result in an approximate loss of $6 million to the applicant due to the loss of three units. Payment of the in-lieu tree replacement fee would not have the effect of physically precluding the Project; and would result in an approximately 5.9-million-dollar cost savings for the applicant, plus any costs necessary to build infrastructure that would protect the tree during construction. While the applicant does not need an incentive from the City to allow removal of this tree, the City is required to approve this incentive under State Density Bonus law. c. If the density bonus is based all or in part on donation of land, a finding that all requirements included Section 19.56.030C have been met.

The density bonus is not based on the donation of land, so the finding is not applicable. d. If the density bonus is based all or in part on the inclusion of a childcare facility, a finding that all requirements included in Section 19.56.030 (D) have been met.

The density bonus is not based on the inclusion of a childcare facility, so the finding is not applicable.
e. If the density bonus or incentive is based on a condominium conversion, a finding that all the requirements included in Section 19.56.030 (E) have been met.

The project site is currently developed with two single story residential structures. The four-unit development is a rental property operating on a month-to-month lease agreement and is currently occupied by renters. The rental property is not registered in the city’s below market rate (BMR) program, and not operated as rent controlled or incomerestricted units. Therefore, the rental dwelling units vacated or demolished preceding this application is not subject to replacement of affordable units in accordance with Government Code Section 65915(c)(3).
f. Since the applicable findings required above can be made, the decision-making body may deny an application for a waiver only if one of the following written findings as applicable to each type of application, supported by substantial evidence:
g. That the incentive or concession, or waiver would have an adverse impact on real property listed in the California Register of Historic Resources; or There are no affected Historic Resources in the vicinity.

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h. That the incentive or concession, or waiver would have a specific, adverse impact upon public health or safety or the physical environment, and there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the residential project unaffordable to low- and moderate-income households. For the purpose of this subsection, "specific, adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, written public health or safety standards, policies, or conditions as they existed on the date that the application for the residential project was deemed complete; or
The project scope has been determined to fall within Class 32 CEQA Exemption pursuant to CEQA Guideline Sections 15332 (Infill Development Projects). There exists no significant, quantifiable, direct, and unavoidable impacts, based on objective, identified, written public health or safety standards, policies, or conditions as they existed on the date that the application for the residential Project was deemed complete. i. That the incentive or concession, or waiver is contrary to state or federal law.

The requested waivers are not contrary to state or federal law.

NOW, THEREFORE, BE IT RESOLVED:

That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter and subject to the conditions which are enumerated in this Resolution beginning on PAGE 5 thereof, and those contained in all other Resolutions approved for this Project, the City Council hereby:

Approves the application for Development Permit, Application No. DP-2023-001, 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. DP-2023-001 as set forth in the Minutes of the City Council Special Meeting of January 17, 2024, and are incorporated by reference as thoroughly set forth herein.

SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPARTMENT.

1. APPROVED EXHIBITS
Approval is based on the plan set entitled “Leon Townhouse, 10046 Bianchi Way Cupertino, CA 95014” consisting of thirty-five sheets labeled A0.0 – A10.0, L1-L1 and C3.1-C7.1 drawn by Tectonic Builders Corp., except as may be amended by conditions in this resolution.

2. ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible to verify all pertinent property data including but not limited to property boundary locations, building setbacks, CC 01-17-2024
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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-2023-002, TM-2023-001 & TR-2023-008

4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the first page of the building plans.

5. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult 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.

6. DEVELOPMENT ALLOCATION
The applicant shall receive an allocation of seven (7) of the residential unit allocations for the Citywide housing allocation.

7. FENCES
Fencing shall not be constructed between individual townhome units to create private yards. Fences shall comply with Chapter 19.48 Fences, of the Cupertino Municipal Code, and must be reviewed and approved prior to issuance of building permits.

8. DENSITY BONUS
Pursuant to Government Code Section 65915(f) the project is granted Density Bonus.

9. DENSITY WAIVERS
The project is granted six density bonus waivers as follows:
i. Front setback. Building B would be 6 feet from the new property line at the second story level but at least 9-feet at the first and third floor levels. ii. Rear Setback. Building A would provide a 12-foot setback from the rear property line at the second story level but at least 15-feet at the first and third floor levels.
iii. Side Setback. Building A would have reduced side setbacks of 10 feet on both sides, where 15 feet is required. Building B would have a reduced left (north) side setback of 10 feet, where 15 feet is required.

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iv. Building Form. A waiver from the standard that buildings adjacent to residentially developed parcels, be stepped back or terraced at 1.5:1 to height ratio if minimum setback cannot be provided for Building A. v. Common Open Space. A waiver from Heart of the City Common Open Space, Common Open Space Hardscape and Landscape standards. vi. Service Access: A waiver for this proposed project to provide service access from rear parking areas.

10. PARKING REDUCTION
The project is granted a parking reduction of six (6) parking stalls. The project must retain fourteen (14) on site parking spaces for the life of the development unless permitted otherwise by the Director of Community Development.

11. INCENTIVE
The project is granted a concession to remove tree #9 – a 38.5-inch Coast Live Oak tree. Subject to the conditions of approval further outlined in TR-2023-008

12. REFUSE COLLECTION STREET SIGNAGE
Prior to issuance of building permits the applicant shall provide for review to the satisfaction of the Public Works Department, street signage restricting parking on trash collection day(s) as subject to the “refuse and truck delivery plan” further detailed in Public Works Condition of Approval #25.

13. BELOW MARKET RATE HOUSING PROGRAM
The applicant shall participate in the City’s Below Market Rate (BMR) Housing Program by dedicating 20% of the units, i.e., one of the units, as a BMR unit. The unit shall be made available to median income levels in compliance with the City’s BMR Manual. The applicant shall record a covenant, which shall be subject to review and approval by the City Attorney, to be recorded prior to the issuance of building permits.

14. BMR UNIT DESIGN REQUIREMENTS
The Applicant shall detail how the following requirements shall be met prior to building permit issuance:
a. BMR units shall be comparable to market-rate units in terms of unit type, number of bedrooms per unit, quality of exterior appearance and overall quality of construction.
b. Interior features and finishes in the affordable units shall be durable, of good quality and consistent with the contemporary standards of new housing.

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15. BMR AGREEMENT
Prior to the recordation of a final map or issuance of any building permit, an affordable housing agreement shall be recorded against the property. The affordable housing agreement shall include, but not be limited to the following:
a. Total number of BMR units, type, location (site map), square footage, number of bedrooms, and construction scheduling of market-rate and BMR units;
b. Provisions to ensure concurrent construction and completion of BMR units and market-rate units;
c. Affordability levels for each BMR unit;
d. Provisions for income certification and screening of potential occupants of BMR units;
e. Restriction control mechanisms;
f. Financing of ongoing administrative and monitoring costs; g. Other reasonably required provisions to implement the Affordable Housing Plan.

16. BMR UNIT TERMS OF AFFORDABILITY:

Prior to occupancy, the proposed project shall record covenants that require the units to be occupied at rents that are affordable to median income level households for a period not less than 99 years from the date of first occupancy of the unit.

17. PUBLIC ART REQUIREMENT
Public art shall be provided for the project in accordance with General Plan Policy 2-66 and the City’s Public Art Ordinance (Chapter 19.148 of the Cupertino Municipal Code). The minimum expenditure for the artwork, including, but not limited to design, fabrication, and installation is one (1) percent of the construction valuation for the first $100 million on construction valuation, or 0.9% of construction valuation for valuation in excess of $100 million. The project pro forma shall be provided to the City to confirm the project budget. The public art plans shall be reviewed and approved by the Arts and Culture Commission prior of final occupancy. Once approved by the Arts and Culture Commission, the public artwork shall be installed to the satisfaction of the City prior to certificates of occupancy being issued on more than 50% of the units in each of the two buildings – i.e., no more than 1 unit in Building B and no more than 2 units in Building A. In the event the developer or property owner determines that the placement of artwork on a particular property may not be feasible, the developer or property owner may apply to the City for an in-lieu payment alternative as indicated in Chapter 19.148 of the Cupertino Municipal Code, subject to review of CC 01-17-2024
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the Arts and Culture Commission and the City Council. The in lieu payment shall be 1.25% of the construction valuation.

18. DEMOLITION REQUIREMENTS
All demolished building and site materials shall be recycled to the maximum extent feasible subject to the Building Official. The applicant shall provide evidence that materials were recycled prior to occupancy.

19. FORMATION OF A PROPERTY OWNER’S ASSOCIATION
A Property Owner’s Association shall be formed to maintain the common areas of the property. The Conditions, Covenants and Restrictions (CC&Rs) shall be reviewed and approved by the City Attorney and the Director of Community Development prior to recordation. The following terms shall be incorporated into the Association’s Conditions, Covenants and Restrictions:
• The members/board shall meet at a minimum of once/year • The Association dues shall cover:
o Maintenance of common area on the property in compliance with the approved project conditions of approval, including hardscaping, parking, landscaping and accessory facilities and amenities, such as trash bins/areas, common amenity areas, tree grates, outside trash bins, fences, Public Art, etc,
o Building and site repair on a regular schedule, or as otherwise necessary, and building renovation and replacement as necessary to ensure that the property is maintained.
o Permits, including tree removal permits, required for maintenance and repair of facilities in the common areas
• Any changes to the exterior of the development must be reviewed by the Property Owner’s Association.
• CC&R’s shall ensure that private open space is kept tidy and free of clutter and visual blight.
• Any changes to the CC&R’s must be reviewed and approved by the City in writing.
• Disbanding of the Association shall require an amendment to the permit.

20. PRE-CONSTRUCTION MEETING & CONSTRUCTION MANAGEMENT
PLAN
A demolition and construction management plan shall be submitted and reviewed prior to building permit issuance. Prior to commencement of construction activities, the applicant shall arrange for a pre-construction meeting with the pertinent departments (Building, Planning, and Public Works) to review the prepared construction management plan, to ensure that construction complies CC 01-17-2024
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with the conditions of approval, staging of construction equipment is appropriate, tree protection measures are in place, public access routes are identified, and noise and dust control measures are established. The plan shall include but not be limited to the following:
a. Compliance with Arborist Report Mitigation Measures
b. Appropriate construction staging area
c. Hours of construction
d. Compliance with the City noise ordinance
e. Best management practices
f. Staging of construction equipment shall not occur within 25 feet of any residential property.
g. Any other measures as determined to be appropriate by the Director of Community Development

21. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS
The applicant shall indicate compliance with the following grading and construction hours and noise limit requirements on all demolition, construction and grading permits, and in the construction management plan(s), unless otherwise indicated.
a. All grading activities shall be limited to the dry season (April 15 to October 1), unless permitted otherwise by the Director of Public works. b. Construction hours and noise limits shall be compliant with all requirements of Chapter 10.48 of the Cupertino Municipal Code. c. Grading, street construction, underground utility and demolition hours for work done more than 750 feet away from residential areas shall be limited to Monday through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to 6 p.m. Grading, street construction, demolition or underground utility work within 750 feet of residential areas shall not occur on Saturdays, Sundays, holidays, and during nighttime period as defined in Section

10.48.053(b) of the Municipal Code.
d. Construction activities shall be limited to Monday through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to 6 p.m. Construction activities are not allowed on holidays as defined in Chapter 10.48 of the Municipal Code. Nighttime construction is allowed if compliant with nighttime standards of Section 10.48 of the Cupertino Municipal Code. e. Rules and regulations pertaining to all construction activities and limitations identified in this permit, along with the name and telephone number of an applicant appointed disturbance coordinator, shall be posted in a prominent location at the entrance to the job site.

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f. The applicant shall be responsible for educating all contractors and subcontractors of said construction restrictions.

The applicant shall comply with the above grading and construction hours and noise limit requirements unless otherwise indicated.

22. ACOUSTIC STUDY AND REDUCTION OF INTERIOR NOISE LEVELS Prior to the issuance of building permits, the project applicant shall submit an acoustic study to the satisfaction of the City's Community Development Director to demonstrate that unit interiors meet an interior noise level due to exterior noise of 45 dBA CNEL, consistent with State and local noise standards. The study shall be based on precise grading and architectural plans including specific construction method details and materials to calculate the necessary exterior to interior noise reduction of approximately 30 dBA to achieve 45 dBA CNEL. The precise exterior to interior reduction would be determined in the acoustical study when precise grading plans with building elevations, footprints and architectural plans are ·available. The applicant will be required to incorporate into the project design all required noise insulation features and techniques necessary to reduce interior noise levels to achieve the interior noise standard. To achieve the required interior noise levels, features such as upgraded exterior wall and roof assemblies, upgraded windows, and exterior doors may be required. In addition, a "windows closed” condition will be required with minimum supply of fresh air per UBC requirements.

23. GREEN BUILDING
The project shall be constructed in accordance with the City’s Green Building Ordinance (Chapter 16.58 of the Cupertino Municipal Code). The applicant shall obtain LEED Silver certification or an alternative reference standard in accordance with the ordinance since the building size is over 50,000 square feet. Third party LEED certification or alternative reference standard is required per the ordinance criteria.

24. BUILDING AND FIRE CODE
The applicant shall apply for and obtain building permits to allow the construction of the approved project. The applicant shall provide information and plans to allow the Building Official and the Fire Marshall or their designee that the proposed plans comply with Building and Fire Codes in effect at the time of application for a building permit.

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25. TRASH AND DELIVERY ACTIVITIES
A detailed refuse and truck delivery plan shall be prepared by the applicant. The plan shall specify locations of trash facilities, refuse pick up schedules and truck delivery schedules and routes. All trash facilities must be screened and enclosed to the satisfaction of the Public Works Department. The final plan shall be submitted to the City for review and approval prior to issuance of building permits.

26. EXTERIOR BUILDING MATERIALS/TREATMENTS
The final building exterior plan shall closely resemble the details shown on the original approved plans. Final building exterior treatment plan (including but not limited to details on exterior color, materials, architectural treatments, doors, windows, lighting fixtures, and/or embellishments) shall be reviewed and approved by the Director of Community Development prior to issuance of building permits and through an in-field mock-up of colors prior to application to ensure quality and consistency. Any exterior changes determined to be substantial by the Director of Community Development shall either require a modification to this permit or a new permit based on the extent of the change.

Future changes to the exterior building materials/treatments must be reviewed and approved by the Property Owner’s Association. As a Planned Unit Development, the exterior finishes of each of the units (including garage doors and exterior doors and windows) must remain harmonious with the same/coordinated materials used across both buildings.

27. DARK SKY COMPLIANCE AND/OR BIRD SAFE COMPLIANCE
Prior to issuance of Building Permits, the applicant/property owner shall submit final plans in compliance with the approved lighting plans to comply with development standards of Cupertino Municipal Code Section 19.102.030 Bird-Safe Development Requirements and/or Section 19.102.040 Outdoor Lighting Requirements. In the event changes are proposed from the approved plans, said changes must be reviewed and approved by the Director of Community Development or their designee. The applicant shall provide all documentation required to determine compliance with the Municipal Code. The final lighting plan (including a detailed photometric plan) shall be reviewed and approved by the Director of Community Development prior to building permit issuance. A report from a licensed lighting engineer may be required to confirm all exterior lighting throughout the site complies with the City’s Ordinance.

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28. ROOFTOP EQUIPMENT SCREENING
All mechanical and other equipment on the building or on the site shall be screened and/or integrated into the building structures so they are not visible from public street areas or adjoining developments. If approved, he height of the screening shall be taller than the height of the mechanical equipment that it is designed to screen. A line of sight plan may be required to demonstrate that the equipment will not be visible from any public right-of-way. The location of the equipment and necessary screening shall be reviewed and approved by the Director of Community Development prior to issuance of building permits.

29. SITE IMPROVEMENTS
All proposed site improvements shall be completed prior to final occupancy of any structures approved in conjunction with the project.

30. NOISE LEVELS AND ABATEMENT
Project uses and all equipment installed on the site shall comply with the City’s Community Noise Control Ordinance at all times. Installation of any mechanical or other equipment shall be evaluated to determine that the installation meets the City’s Community Noise Control Ordinance. Any documentation or studies required to determine this shall be provided by the applicant as his/her sole expense. Should the project exceed any of the stipulated maximum noise levels outlined in the City’s Community Noise Control Ordinance, an acoustical engineer may be required to submit noise attenuation measures to the satisfaction of the Director of Community Development at the applicant’s expense.

31. INGRESS/EGRESS EASEMENT
The applicant shall record an appropriate deed restriction and covenant running with the land, subject to approval of the City Attorney, for all parcels that share a common private drive or private roadway with one or more other parcels. The deed restriction shall provide for necessary reciprocal ingress and egress easement to and from the affected parcels. The easements shall be recorded at such time as interest in one or more of the affected parcels is initially sold or transferred to another party.

32. FUGITIVE DUST CONTROL
Prior to issuance of the any demolition, grading, or building permit, include on all permit plans, the full text of each of the Bay Area Air Quality Management District’s Basic Control Measures from the latest version of BAAQMD’s CEQA Air Quality Guidelines, as subsequently revised, supplemented, or replaced, to control fugitive dust (i.e., particulate matter PM2.5 and PM10) during demolition, ground disturbing activities and/or construction.

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33. VOLATILE ORGANIC COMPOUND EMISSIONS FROM PAINT
Prior to issuance of the first building permit, the Applicant shall include a note on all plans where paint specifications or other design specifications are listed, that the project design will incorporate only low-VOC paint (i.e., 50 grams per liter [g/L] or less) for interior and exterior wall architectural coatings.

34. AVOID NESTING BIRDS DURING CONSTRUCTION
Prior to issuance of the any demolition, grading and building permit, indicate the following on all construction plans:
a. Demolition, construction, ground-disturbing, and tree removal/pruning activities shall be scheduled to be completed prior to nesting season (February 1 through August 31), if feasible.
b. If demolition, construction, ground-disturbing, or tree removal/pruning activities occur during the nesting season (February 1 and August 31), preconstruction surveys shall be conducted as follows:
i. No more than 7 days prior to the start of demolition, construction, ground-disturbing, or tree removal/pruning activities, in order to identify any active nests with eggs or young birds on the site and surrounding area within 100 feet of construction or tree removal activities.
ii. Preconstruction surveys shall be repeated at 14-day intervals until demolition, construction, ground-disturbing, or tree removal/pruning activities have been initiated in the area, after which surveys can be stopped. As part of the preconstruction survey(s), the surveyor shall inspect all trees and other possible nesting habitats in, and immediately adjacent to, the construction areas for active nests, while ensuring that they do not disturb the nests as follows:

1. For projects that require the demolition or construction one singlefamily residence, ground disturbing activities affecting areas of up to 500 square feet, or the removal of up to three trees, the property owner or a tree removal contractor, if necessary, is permitted to conduct the preconstruction surveys to identify if there are any active nests. If any active nests with eggs or young birds are identified, the project applicant shall retain a qualified ornithologist or biologist to identify protective measures.

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ornithologist or biologist shall be retained by the project applicant to conduct the preconstruction surveys.
iii. If the preconstruction survey does not identify any active nests with eggs or young birds that would be affected by demolition, construction, ground-disturbing or tree removal/pruning activities, no further mitigating action is required. If an active nest containing eggs or young birds is found sufficiently close to work areas to be disturbed by these activities, their locations shall be documented, and the qualified ornithologist or biologist shall identify protective measures to be implemented under their direction until the nests no longer contain eggs or young birds.
iv. Protective measures may include, but are not limited to, establishment of clearly delineated exclusion zones (i.e., demarcated by identifiable fencing, such as orange construction fencing or equivalent) around each nest location as determined by the qualified ornithologist or biologist, taking into account the species of birds nesting, their tolerance for disturbance and proximity to existing development. In general, exclusion zones shall be a minimum of 300 feet for raptors and 75 feet for passerines and other birds. The active nest within an exclusion zone shall be monitored on a weekly basis throughout the nesting season to identify signs of disturbance and confirm nesting status. The radius of an exclusion zone may be increased by the qualified ornithologist or biologist, if project activities are determined to be adversely affecting the nesting birds. Exclusion zones may be reduced by the qualified ornithologist or biologist only in consultation with California Department of Fish and Wildlife. The protection measures and buffers shall remain in effect until the young have left the nest and are foraging independently or the nest is no longer active. v. A final report on nesting birds and raptors, including survey methodology, survey date(s), map of identified active nests (if any), and protection measures (if required), shall be prepared by the qualified ornithologist or biologist and submitted to the Director of Community Development or his or her designee, through the appropriate permit review process (e.g., demolition, construction, tree removal, etc.), and be completed to the satisfaction of the Community CC 01-17-2024
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Development Director prior to the start of demolition, construction, ground-disturbing, or tree removal/pruning activities.

35. ARCHAEOLOGICAL RESOURCES AND TRIBAL CULTURAL RESOURCES Prior to the issuance of any demolition, grading or building permit involving soil disturbance, the project applicant shall provide written verification, including the materials provided to contractors and construction crews, to the City confirming that contractors and construction crews have been notified of basic archaeological site indicators, the potential for discovery of archaeological resources, laws pertaining to these resources, and procedures for protecting these resources as follows:
a. Basic archaeological site indicators that may include, but are not limited to, darker than surrounding soils of a friable nature; evidence of fires (ash, charcoal, fire affected rock or earth); concentrations of stone, bone, or shellfish; artifacts of stone, bone, or shellfish; evidence of living surfaces (e.g., floors); and burials, either human or animal.
b. The potential for undiscovered archaeological resources or tribal cultural resources on site.
c. The laws protecting these resources and associated penalties, including, but not limited to, the Native American Graves Protection and Repatriation Act of 1990, Public Resources Code Section 5097, and California Health and Safety Code Section 7050 and Section 7052.
d. The protection procedures to follow should construction crews discover cultural resources during project-related earthwork, include the following:
i. All soil disturbing work within 25 feet of the find shall cease. ii. The project applicant shall retain a qualified archaeologist to provide and implement a plan for survey, subsurface investigation, as needed, to define the deposit, and assessment of the remainder of the site within the project area to determine whether the resource is significant and would be affected by the project.
iii. Any potential archaeological or tribal cultural resources found during construction activities shall be recorded on appropriate California Department of Parks and Recreation forms by a qualified archaeologist. If the resource is a tribal cultural resource, the consulting archaeologist shall consult with the appropriate tribe, as determined by the Native American Heritage Commission, to evaluate the significance of the resource and to recommend appropriate and feasible avoidance, testing, preservation or mitigation measures, in light of factors such as the significance of the find, proposed project CC 01-17-2024
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design, costs, and other considerations. The archeologist shall perform this evaluation in consultation with the tribe.

36. HUMAN REMAINS AND NATIVE AMERICAN BURIALS
Prior to issuance of the any demolition, grading and building permits that involve soil disturbance, include on plans a note that, during project construction, the project applicant shall comply with California Health and Safety Code Section 7050.5 and California Public Resources Code Section 5097.98. a. In the event of discovering human remains during construction activities, there shall be no further excavation or disturbance of the site within a 100- foot radius of the remains, or any nearby area reasonably suspected to overlie adjacent remains.
b. The Santa Clara County Coroner shall be notified immediately and shall make a determination as to whether the remains are Native American. c. If the Santa Clara County Coroner determines that the remains are not subject to his authority, he shall notify the Native American Heritage Commission (NAHC) within 24 hours.
d. The NAHC shall attempt to identify descendants (Most Likely Descendant) of the deceased Native American.
e. The Most Likely Descendant has 48 hours following access to the project site to make recommendations or preferences regarding the disposition of the remains. If the Most Likely Descendant does not make recommendations within 48 hours after being allowed access to the project site, the owner shall, with appropriate dignity, reinter the remains in an area of the property secure from further disturbance and provide documentation about this determination and the location of the remains to the NAHC and the City of Cupertino. Alternatively, if the owner does not accept the Most Likely Descendant’s recommendations, the owner or the descendent may request mediation by the NAHC. Construction shall halt until the mediation has concluded.

37. NOISE AND VIBRATION NOTICE
At least 10 days prior to the start of any demolition, ground disturbing, or construction activities, the project applicant/contractor shall send notices of the planned activity by first class mail as follows:
a. For projects on sites that are more than 0.5 acres or four or more residential units the notices shall be sent to off-site businesses and residents within 500 feet of the project site;
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b. For projects on sites between 0.25 to 0.5 acres, or two or three residential units (not including Accessory Dwelling Units) notices shall be sent to offsite businesses and residents within 250 feet of the project site; or c. For projects on sites less than 0.25 acres or one residential unit, the notices shall be sent to off-site businesses and residents within 100 feet of the project site.

The notification shall include a brief description of the project, the activities that would occur, the hours when activity would occur, and the construction period’s overall duration. The notification should include the telephone numbers of the contractor’s authorized representatives that are assigned to respond in the event of a noise or vibration complaint. The City will provide mailing addresses for the Applicant’s use. The project applicant shall provide the City with evidence of mailing of the notice, upon request. If pile driving, see additional noticing requirements below.

38. NOISE AND VIBRATION SIGNAGE
At least 10 days prior to the start of any demolition, ground disturbing, or construction activities, the project applicant/contractor shall ensure that a sign measuring at least two feet by three feet shall be posted on construction fencing at the entrance(s) to the job site, clearly visible to the public, and include the following:
a. Permitted construction days and hours;
b. A description of proposed construction activities;
c. Telephone numbers of the City’s and contractor’s authorized representatives that are assigned to respond in the event of a noise or vibration complaint; and
d. Contact information for City’s and contractor’s authorized representatives that are assigned to respond in the event of a complaint related to fugitive dust, pursuant to the requirements for compliance with BAAQMD’s CEQA Air Quality Guidelines.

If the authorized contractor’s representative receives a complaint, they shall investigate, take appropriate corrective action, and report the complaint and the action taken to the City within three business days of receiving the complaint.

39. NOISE DURING CONSTRUCTION
Prior to issuance of any demolition, grading or building permit, include on plans a note that, during project construction, the project applicant shall incorporate the following measures to reduce noise during construction and demolition activity:
a. The project applicant and contractors shall prepare and submit a Construction Noise Control Plan to the City’s Planning Department for CC 01-17-2024
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review and approval prior to issuance of the first permit. The Construction Noise Plan shall demonstrate compliance with daytime and nighttime decibel limits pursuant to Chapter 10.48 (Community Noise Control) of Cupertino Municipal Code. The details of the Construction Noise Control Plan shall be included in the applicable construction documents and implemented by the on-site Construction Manager. Noise reduction measures selected and implemented shall be based on the type of construction equipment used on the site, distance of construction activities from sensitive receptor(s), site terrain, and other features on and surrounding the site (e.g., trees, built environment) and may include, but not be limited to, temporary construction noise attenuation walls, high quality mufflers. During the entire active construction period, the Construction Noise Control Plan shall demonstrate that compliance with the specified noise control requirements for construction equipment and tools will reduce construction noise in compliance with the City’s daytime and nighttime decibel limits.
b. Select haul routes that avoid the greatest amount of sensitive use areas and submit to the City of Cupertino Public Works Department for approval prior to the start of the construction phase.
c. Signs will be posted at the job site entrance(s), within the on-site construction zones, and along queueing lanes (if any) to reinforce the prohibition of unnecessary engine idling. All other equipment will be turned off if not in use for more than 5 minutes.
d. During the entire active construction period and to the extent feasible, the use of noise producing signals, including horns, whistles, alarms, and bells will be for safety warning purposes only. The construction manager will use smart back-up alarms, which automatically adjust the alarm level based on the background noise level or switch off back-up alarms and replace with human spotters in compliance with all safety requirements and law.

40. PALEONTOLOGICAL RESOURCES
Prior to issuance of the any demolition, grading or building permit, include on plans a note that, during project construction, the project applicant shall implement the following measures:
a. If paleontological resources are encountered during ground disturbing and/or other construction activities, all construction shall be temporarily halted or redirected to allow a qualified paleontologist, which shall be retained by the project applicant, to assess the find for significance and the Applicant shall notify the City.
b. If paleontological resources are found to be significant, the paleontological monitor shall determine appropriate actions, in coordination with a CC 01-17-2024
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qualified paleontologist, City staff, and property owner. Appropriate actions may include, but are not limited to, a mitigation plan formulated pursuant to guidelines developed by the Society of Vertebrate Paleontology and implemented to appropriately protect the significance of the resource by preservation, documentation, and/or removal, prior to recommencing activities. Measures may include, but are not limited to, salvage of unearthed fossil remains and/or traces (e.g., tracks, trails, burrows); screen washing to recover small specimens; preparation of salvaged fossils to a point of being ready for curation (e.g., removal of enclosing matrix, stabilization and repair of specimens, and construction of reinforced support cradles); and identification, cataloging, curation, and provision for repository storage of prepared fossil specimens.

41. INDEMNIFICATION
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.

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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.

42. 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.

SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS

DEPARTMENT

1. EXISTING PG&E AND PT&T EASEMENT
Developer shall work directly with PG&E and PT&T to obtain approval from each respective utility company for the proposed vacation of the existing 20’ PG&E and PT&T easement. The easement may be vacated with the final map or quitclaimed by a separate instrument. The quitclaim shall be approved and recorded by PG&E and PT&T prior to Final Map recordation or issuance of building permits.

2. RESTRICTED PARKING SIGNS
Developer shall install signs for restricted parking on trash collection days along the project frontage to the satisfaction of the Director of Public Works.

If the project will be subject to Covenants, Conditions, and Restrictions (CC&Rs) and a Homeowners Association (HOA), the CC&Rs must also include language pertaining to the restricted on-street parking.

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3. STREET IMPROVEMENTS & DEDICATION
Roadway dedication in fee title and street improvements along the project frontage will be required to the satisfaction of the Director of Public Works. Street improvements, grading and drainage plans must be completed and approved prior to Final Map approval.

Street improvements may include, but not be limited to, new curb and gutter, attached sidewalk, driveway, storm drain lateral, street tree installations, and/or street light. All improvements must be completed and accepted by the City prior to Building Final Occupancy or Street Improvement Encroachment Permit acceptance whichever comes first.

Additional comments will be provided and shall be incorporated prior to Final Map approval.

4. ACCEPTANCE OF PROPERTY RIGHTS
The Public Works Director, or his/her designee, shall have the authority to accept all offers of dedications, easements, quitclaims and other property rights and interests on behalf of the City.

5. CURB AND GUTTER IMPROVEMENTS
Curbs and gutters, sidewalks and related structures shall be installed in accordance with grades and standards as specified by the Director of Public Works. All improvements must be completed and accepted by the City prior to Building Final Occupancy or Street Improvement Encroachment Permit acceptance whichever comes first.

6. PEDESTRIAN AND BICYCLE IMPROVEMENTS
Developer shall provide pedestrian and bicycle related improvements (e.g. walkway and bicycle racks, etc.) consistent with the Cupertino Bicycle Transportation Plan and the Pedestrian Transportation Plan, and as approved by the Director of Public Works. All improvements must be completed and accepted by the City prior to Building Final Occupancy or Street Improvement Encroachment Permit acceptance whichever comes first.

7. STREET LIGHTING INSTALLATION
Street lighting shall be installed and shall be as approved by the Director of Public Works. Lighting fixtures shall be positioned so as to preclude glare and other forms of visual interference to adjoining properties, and shall be no higher than the maximum height permitted by the zone in which the site is located.

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8. GRADING
Grading shall be as approved and required by the Director of Public Works in accordance with Chapter 16.08 of the Cupertino Municipal Code. 401 Certifications and 404 permits maybe required. Please contact Army Corp of Engineers and/or Regional Water Quality Control Board as appropriate.

9. DRAINAGE
Drainage shall be provided to the satisfaction of the Director of Public Works and satisfy any requirements from the environmental analysis. Hydrology and preand post-development hydraulic calculations must be provided to indicate whether additional storm water control measures are to be constructed or renovated. The storm drain system may include, but is not limited to, subsurface storage of peak stormwater flows (as needed), bioretention basins, vegetated swales, and hydrodynamic separators to reduce the amount of runoff from the site and improve water quality. The storm drain system shall be designed to detain water on-site (e.g., via buried pipes, retention systems or other approved systems and improvements) as necessary to avoid an increase of the ten percent flood water surface elevation to the satisfaction of the Director of Public Works. Any storm water overflows or surface sheeting should be directed away from neighboring private properties and to the public right of way as much as reasonably possible.

All storm drain inlets shall be clearly marked with the words “No Dumping – Flows to Creek” using permanently affixed metal medallions or equivalent, as approved by the Environmental Programs Division.

Additional comments will be provided and shall be incorporated prior to Final Map approval.

10. C.3 REQUIREMENTS
C.3 regulated improvements are required for all projects creating and/or replacing 5,000 S.F. or more of impervious surface, collectively over the entire project site (if project receives entitlement after June 30, 2023). The developer shall reserve a minimum of 4% of developable surface area for the placement of low impact development measures, for storm water treatment, unless an alternative storm water treatment plan, that satisfies C.3 requirements, is approved by the Director of Public Works.

The developer must include the use and maintenance of site design, source control and storm water treatment Best Management Practices (BMPs), which must be designed per approved numeric sizing criteria. A Storm Water Management Plan and a Storm Water Facilities Operation, Maintenance and Easement Agreement, CC 01-17-2024
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and certification of ongoing operation and maintenance of treatment BMPs are each required.

All storm water management plans are required to obtain certification from a City approved third party reviewer.

If the project will be subject to Covenants, Conditions, and Restrictions (CC&Rs) and a Homeowners Association (HOA), the CC&Rs must also include language pertaining to the stormwater treatment measures.

11. SUBDIVISION IMPROVEMENT AGREEMENT
The project developer shall enter into a Subdivision Improvement Agreement with the City of Cupertino providing for payment of fees, including but not limited to checking and inspection fees, storm drain fees, transportation impact fees, park dedication fees and fees for under grounding of utilities. Said agreement and fees shall be executed and paid prior to Final Map approval.

Fees:
a. Checking & Inspection Fees: Per current fee schedule ($4,947 or 5% of improvement costs)
b. Grading Permit: Per current fee schedule ($3,683 or 6% of improvement costs)
c. Tract Map Fee: Per current fee schedule ($12,306)
d. Storm Drainage Fee: Per current fee schedule ($4,250 per AC + $322 per unit)
e. Transportation Impact Fee:

Per current fee schedule: ($4,215 per new
DU)
f. Encroachment Permit Fee: Per current fee schedule ($3,304 or 5% of improvement costs)
g. Park Fees: Per current fee schedule: ($60,000 per new DU)
h. Storm Management Plan
Fee
Per current fee schedule ($1,670)
i. Street Tree Fee: By Developer or Per current fee schedule:
$481 per tree
j. Bonds: Faithful Performance Bond: 100% of Offsite and On-site Improvements k. Labor & Material Bond: 100% of Off-site and On-site Improvement l. On-site Grading Bond: 100% of site improvements.
- The fees described above are imposed based upon the current fee schedule adopted by the City Council. However, the fees imposed herein may be modified at the time of recordation of a final map or issuance of CC 01-17-2024
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a building permit in the event of said change or changes, the fees changed at that time will reflect the then current fee schedule.

12. FINAL MAP
A final map will be subject to City Council approval and shall be recorded prior to issuance of building permits. Existing buildings must be demolished prior to recordation of the final map as building(s) cannot straddle between lot lines.

13. TRANSPORTATION
The Project is subject to the payment of Transportation Impact Fees under City’s Transportation Impact Fee Program (Chapter 14.02 of the Cupertino Municipal Code).

The Project may also be subject to a Vehicle Miles Traveled (VMT) analysis as part of environmental review per Chapter 17 of the Cupertino Municipal Code. Project shall provide mitigation measure as results of the transportation analysis.

14. PARKS
The residential units are subject to the payment of parkland fees in-lieu of parkland dedication per Chapter 13.08 and Chapter 18.24 of the Cupertino Municipal Code.

The Below Market Rate (BMR) program manual, which was last amended by City Council on May 19, 2020 per Resolution 20-055, authorizes the waiver of park fees for BMR units. Pursuant to Resolution 20-055, parkland dedication in-lieu fees for the 1 BMR unit proposed for this project are hereby waived.

15. SURVEYS
A Boundary Survey and a horizontal control plan will be required for all new construction to ensure the proposed building will be set based on the boundary survey and setback requirements.

16. TRASH, RECYCLING AND COMPOST ENCLOSURES
Trash enclosure plans must be designed in accordance with the City’s “Public Works Guidelines posted at www.cupertino.org/nowaste, and to the satisfaction of the Environmental Programs Manager. Clearance by the Public Works Department is required prior to obtaining a building permit. (CMC 9.18.210 H & K)
Applicant shall enter into an agreement with the City that indemnifies and holds harmless both the City and the refuse and recycling collection company (Recology) from and against any harm, damage or maintenance that may occur or become necessary to onsite paving stone driveway surfaces.

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17. OPERATIONS & MAINTENANCE AGREEMENT
Developer shall enter into an Operations & Maintenance Agreement with the City prior to Final Map approval. The Agreement shall include the operation and maintenance for non-standard appurtenances in the public road right-of-way that may include, but is not limited to, landscaping, street trees, sidewalk, pavers, and street lights.

18. UNDERGROUND UTILITIES
Developer shall comply with the requirements of the Underground Utilities Ordinance No. 331 and other related Ordinances and regulations of the City of Cupertino, and shall coordinate with affected utility providers for installation of underground utility devices. Developer shall submit detailed plans showing utility underground provisions. Said plans shall be subject to prior approval of the affected Utility provider and the Director of Public Works.

19. TRANSFORMERS & CABINETS
Electrical transformers, telephone cabinets and similar equipment shall be placed in underground vaults. The developer must receive written approval from both the Public Works Department and the Community Development Department prior to installation of any above ground equipment. Should above ground equipment be permitted by the City, equipment and enclosures shall be screened with fencing and landscaping such that said equipment is not visible from public street areas, as determined by the Community Development Department.

Transformers shall not be located in the front or side building setback area.

20. WATER BACKFLOW PREVENTERS
Domestic and Fire Water Backflow preventers and similar above ground equipment shall be placed away from the public right of way and site driveways to a location approved by the Cupertino Planning Department, Santa Clara County Fire Department and the water company.

21. BEST MANAGEMENT PRACTICES
Utilize Best Management Practices (BMPs), as required by the State Water Resources Control Board, for construction activity, which disturbs soil. BMP plans shall be included in grading and street improvement plans.

22. NPDES CONSTRUCTION GENERAL PERMIT
When and where it is required by the State Water Resources Control Board (SWRCB), the developer must obtain a Notice of Intent (NOI) from the SWRCB, which encompasses preparation of a Storm Water Pollution Prevention Plan CC 01-17-2024
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(SWPPP), use of construction Best Management Practices (BMPs) to control storm water runoff quality, and BMP inspection and maintenance.

23. EROSION CONTROL PLAN
Developer must provide an approved erosion control plan by a Registered Civil Engineer. This plan should include all erosion control measures used to retain materials on site. Erosion control notes shall be stated on the plans.

24. WORK SCHEDULE
Every 6 months, the developer shall submit a work schedule to the City to show the timetable for all grading/erosion control work in conjunction with this project.

25. TRAFFIC CONTROL PLAN
The developer must submit a traffic control plan by a Registered Traffic Engineer to be approved by the City. The plan shall include a temporary traffic control plan for work in the right of way as well as a routing plan for all vehicles used during construction. All traffic control signs must be reviewed and approved by the City prior to commencement of work. The City has adopted Manual on Uniform Traffic Control Devices (MUTCD) standards for all signage and striping work throughout the City.

26. STREET TREES
Street trees shall be planted within the Public Right of Way to the satisfaction of the Director of Public Works and shall be of a type approved by the City in accordance with Ordinance No. 125.

27. FIRE PROTECTION
Fire sprinklers shall be installed in any new construction to the approval of the City.

28. SANTA CLARA COUNTY FIRE DEPARTMENT
A letter of clearance for the project shall be obtained from the Santa Clara County Fire Department prior to issuance of building permits. Clearance should include written approval of the location of any proposed Fire Backflow Preventers, Fire Department Connections and Fire Hydrants (typically Backflow Preventers should be located on private property adjacent to the public right of way, and fire department connections must be located within 100’ of a Fire Hydrant).

29. FIRE HYDRANT
Fire hydrants shall be located as required by the City and Santa Clara County Fire Department as needed.

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30. CALIFORNIA WATER SERVICE COMPANY CLEARANCE
A letter of clearance shall be obtained from California Water Service Company prior to Final Map approval. The letter shall include their review and approval of the water connection, service capability, location and layout of water lines and backflow preventers, and any additional public service easements necessary to service the project.

31. DEDICATION OF UNDERGROUND WATER RIGHTS
Developer shall “quit claim” to the City all rights to pump, take or otherwise extract water from the underground basin or any underground strata in the Santa Clara Valley.

32. SANITARY DISTRICT
A letter of clearance or sign off of street improvement plans for the project shall be obtained from the Cupertino Sanitary District prior to Final Map approval.

33. UTILITY EASEMENTS
Clearance approval letters from the agencies with easements on the property (including PG&E, AT&T, and California Water Company, and/or equivalent agencies) will be required prior to Final Map approval. Their letters shall include their review and approval of any easement(s) to be vacated and/or quitclaimed, which include proposed private structures and utilities within the existing easement(s).

SECTION V: CONDITIONS ADMINISTERED BY THE SANTA CLARA COUNTY FIRE

DEPARTMENT

1. CALIFORINA FIRE CODE
The California Fire (CFC) & Building (CBC) Code, 2019 edition, as adopted by the City of Cupertino Municipal Code (CMC) and California Code of Regulations (CCR).

2. APPROVAL
Review of this Developmental proposal is limited to acceptability of site access, water supply and may include specific additional requirements as they pertain to fire department operations and shall not be construed as a substitute for formal plan review to determine compliance with adopted model codes. Prior to performing any work, the applicant shall make application to, and receive from, the Building Department all applicable construction permits.

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3. FIRE SPRINKLERS REQUIRED:
(As noted on Sheet A0.0) Approved automatic sprinkler systems in new and existing buildings and structures shall be provided in the locations described in this Section or in Sections 903.2.1 through 903.2.18 whichever is the more restrictive. For the purposes of this section, firewalls used to separate building areas shall be constructed in accordance with the California Building Code and shall be without openings or penetrations. NOTE: The owner(s), occupant(s) and any contractor(s) or subcontractor(s) are responsible for consulting with the water purveyor of record in order to determine if any modification or upgrade of the existing water service is required. A State of California licensed (C-16) Fire Protection Contractor shall submit plans, calculations, a completed permit application and appropriate fees to this department for review and approval prior to beginning their work. CFC Sec. 903.2. NFPA 13 will be installed.

4. FIRE ALARM REQUIMENTS
(As Noted on Sheet A0.0) Refer to CFC Sec. 907 and the currently adopted edition of NFPA 72. Submit shop drawings (3 sets) and a permit application to the SCCFD for approval before installing or altering any system.

5. REQUIRED FIRE FLOW
(Letter received) The minimum require fireflow for this project is 1000 Gallons Per Minute (GPM) at 20 psi residual pressure. This fireflow assumes installation of automatic fire sprinklers per CFC[903.3.1.3]

6. BUILDINGS AND FACILITIES ACCESS
(As noted on Sheet A2.5) Approved fire apparatus access roads shall be provided for every facility, building or portion of a building hereafter constructed or moved into or with the jurisdiction. The fire apparatus access road shall comply with the requirements of this section and shall extend to within 150 feet of all portions of the facility and all portions of the exterior walls of the first story of the building as measured by an approved route around the exterior of the building or facility. [CFC, Section 503.1.1].

7. GROUND LADDER ACCESS
(As noted on Sheet A2.5) Ground-ladder rescue from second and third floor rooms with egress windows, shall be made possible for fire department operations. With the climbing angle of seventy-five degrees maintained, an approximate walkway width along either side of the building shall be no less than seven feet clear.

Landscaping shall not be allowed to interfere with the required access. CFC Sec. 503 and 1030 NFPA 1932 Sec. 5.1.8 through 5.1.9.2. Ladder access (one for each emergency egress window) of an all-weather supportive surface along with an CC 01-17-2024
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approved access walkway leading from the fire apparatus access road to them, shall be provided.

8. FIRE DEPARMENT CONNECTION
(As noted on Sheet A2.5) The fire department connection (FDC) shall be installed at the street on the street address side of the building. It shall be located within 100 feet of a public fire hydrant and within ten (10) feet of the main PIV (unless otherwise approved by the Chief due to practical difficulties). FDC's shall be equipped with a minimum of two (2), two-and-one-half (2- 1/2”) inch national standard threaded inlet couplings. Orientation of the FDC shall be such that hose lines may be readily and conveniently attached to the inlets without interference.

FDC's shall be painted safety yellow. [SCCFD, SP-2 Standard].

9. CONSTRUCTION SITE FIRE SAFETY
All construction sites must comply with applicable provisions of the CFC Chapter 33 and our Standard Detail and Specification S1-7. Provide appropriate notations on subsequent plan submittals, as appropriate to the project. CFC Chp. 33.

10. WATER SUPPLY REQUIREMENTS
Potable water supplies shall be protected from contamination caused by fire protection water supplies. It is the responsibility of the applicant and any contractors and subcontractors to contact the water purveyor supplying the site of such project, and to comply with the requirements of that purveyor. Such requirements shall be incorporated into the design of any water-based fire protection systems, and/or fire suppression water supply systems or storage containers that may be physically connected in any manner to an appliance capable of causing contamination of the potable water supply of the purveyor of record. Final approval of the system(s) under consideration will not be granted by this office until compliance with the requirements of the water purveyor of record are documented by that purveyor as having been met by the applicant(s). 2019 CFC Sec. 903.3.5 and Health and Safety Code 13114.7.

11. ADDRESS IDENTIFICATION
New and existing buildings shall have approved address numbers, building numbers or approved building identification placed in a position that is plainly legible and visible from the street or road fronting the property. These numbers shall contrast with their background. Where required by the fire code official, address numbers shall be provided in additional approved locations to facilitate emergency response. Address numbers shall be Arabic numbers or alphabetical letters. Numbers shall be a minimum of 4 inches (101.6 mm) high with a minimum stroke width of 0.5 inch (12.7 mm). Where access is by means of a private road and CC 01-17-2024
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the building cannot be viewed from the public way, a monument, pole or other sign or means shall be used to identify the structure. Address numbers shall be maintained. CFC Sec. 505.1

12. FIRE DEPARMENT (EGINE) ROADWAY TURNAROUND REQUIRED
(As noted on Sheet A2.5) Dead-end fire apparatus access roads in excess of 150 feet in length shall be provided with an approved area for turning around fire apparatus. Provide an approved fire department engine driveway turnaround with a minimum radius of 36 feet outside and 23 feet inside. Maximum grade in any direction shall be 5%. Installations shall conform with Fire Department Standard Details and Specifications A-1. [CFC Section 503.2.5].

13. FIRE LANES REQUIRED
(As noted on Sheet A2.5) The minimum clear width of fire department access roads shall be 20 feet. Fire apparatus access roads shall be designated and marked as a fire lane as set forth in Section 22500.1 of the California Vehicle Code.

SECTION VI: CONDITIONS ADMINISTERED BY THE OFFICE OF
COMMUNITY DEVELOPMENT – BUILDING DIVISION

1. ELECTRIC BUILDINGS
Buildings shall be all Electric per Cupertino Muni Code section 16.54.100. No gas is allowed for the Buildings.

2. CALIFORNIA BUILDING CODE:

Buildings with 3 or more Units are subject to Chapter 11A of the 2022 California Building Code, as stated in section R320 of the 2022 California Residential Code.

SECTION VII: CONDITIONS ADMINISTERED BY THE CUPERTINO

SANITARY DISTRICT

1. District will require developer/owner to enter into an Installer’s Agreement. The Installer’s Agreement will be required for approval during the Building Permit phase.

2. Connection permit fees, Sewer Development Fees, & Treatment Plant Capacity Fees will be required for the proposed work during the Building Permit Phase and will be required as part of the Installer’s Agreement.

3. New lateral connection, inspection, administration, & engineering fees will be required during the Building Permit Phase.

4. Sewer Development Fees & Treatment Plant Capacity Fees will be required for the proposed work during the Building Permit Phase.

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5. The District is currently in the process of drafting up a District Wide Inflow and Infiltration Reduction program. Additional fees for this projects Inflow & Infiltration reduction may be required during the Building Phase.

PASSED AND ADOPTED at a special meeting of the City Council of the City of Cupertino this 17th day of January 2024 by the following vote:

Vote Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Sheila Mohan, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
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A RESOLUTION OF THE CUPERTINO CITY COUNCIL

APPROVING OF AN ARCHITECTURAL AND SITE APPROVAL PERMIT TO CONSTRUCT NEW SEVEN (7) UNIT TOWNHOME DEVELOPMENT LOCATED AT 10046 BIANCHI WAY (APN: 359-07-021)
SECTION I: PROJECT DESCRIPTION
Application No.: ASA-2023-002
Applicant: Leon Hu of Top Mission Realty & Investment, Inc.

Location: 10046 Bianchi Way (APN: 359-07-021)
SECTION II: FINDINGS FOR ARCHITECTURAL AND SITE APPROVAL:

WHEREAS, the City of Cupertino received an application for an Architectural and Site Approval Permit (Application No. ASA-2023-002) as described in Section I of this resolution; and
WHEREAS, pursuant to the provisions of the California Environmental Quality Act of 1970 (Public Resources Code Section 21000 et seq.) ("CEQA") and the State CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.) ("CEQA Guidelines"), the project has been determined exempt under Class 32 CEQA Exemption pursuant to CEQA Guideline Sections 15332 (Infill Development Projects); and WHEREAS, on December 12, 2023, at a public hearing, the Planning Commission recommended on a 3-1-1 vote (No: Madhdhipatla, Absent: Mistry) that the City Council approve the Development Permit (DP-2023-001) in substantially similar form to the Resolution presented (Resolution No. 23-20), approve the Architectural and Site Approval Permit (ASA-2023-002) in substantially similar form to the Resolution presented (Resolution No. 23-21), approve the Tentative Final Map (TM-2023-001) in substantially similar form the Resolution presented (Resolution No. 23-22) and approve the Tree Removal Permit (TR-2023-008) in substantially similar form to the Resolution presented (Resolution No. 23-23) except as may be further amended by conditions in this resolution; and
WHEREAS, all necessary public notices having been given as required by the Procedural Ordinance of the City of Cupertino and the Government Code, and on January 17, 2024, the City Council held a public hearing to consider the Architectural and Site Approval Permit; and
WHEREAS, the City Council of the City of Cupertino is the decision-making body for this Resolution; and
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WHEREAS, the applicant has met the burden of proof required to support the application for a Architectural and Site Approval Permit; and
WHEREAS, the City Council finds:

1. The proposal, at the proposed location, will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience;
The project has been determined to be consistent with the General Plan, Heart of the City Specific Plan and applicable portion of the Municipal Code. The project scope has been determined to fall within Class 32 CEQA Exemption pursuant to CEQA Guideline Sections 15332 (Infill Development Projects). The incorporated conditions of approval into the project will further mitigate potential impacts and therefore the project will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience.

2. The proposal is consistent with the purposes of Chapter 19.168, the General Plan, any specific plan, zoning ordinances, applicable planned development permit, conditional use permits, variances, subdivision maps or other entitlements to use which regulate the subject property including, but not limited to, adherence to the following specific criteria:
a) Abrupt changes in building scale should be avoided. A gradual transition related to height and bulk should be achieved between new and existing buildings.

The proposed project is a redevelopment of an existing residential four-plex. The project incorporates variation in wall planes, rooflines, and multiple recessed areas; that help to reduce the height and bulk of the buildings. The exterior siding is a mixture of different materials, textures, colors and finishes; methodically repeated throughout the building design on every elevation. The landscape plantings help to further screen the development with the proposal of dense, fast-growing shrubs.

Additionally, the project incorporates trees throughout the street frontage to further reduce the massing and bulk of the structures.
b) In order to preserve design harmony between new and existing building and in order to preserve and enhance property values, the materials, textures and colors of new building should harmonize with adjacent development by being consistent or compatible with design and color schemes with the future character of the neighborhoods and purposes of the zone in which they are situated. The location, height and materials of walls, fencing, hedges and screen planting should harmonize with adjacent development. Unsightly storage areas, utility installations and unsightly elements of parking lots should be concealed. The planting of ground cover or various types of pavements should be used to prevent CC 01-17-2024
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dust and erosion, and the unnecessary destruction of existing healthy trees should be avoided. Lighting for development should be adequate to meet safety requirements as specified by the engineering and building departments and provide shielding to prevent spill-over light to adjoining property owners.

The design quality of the development is consistent with the high-quality standards encouraged by City Staff. The proposed development is that of a Modern design, architectural details and style is consistent throughout the development. The landscape architect has strategically placed landscape screening throughout the site and has proposed a new six-foot tall redwood fence along the sides and rear perimeter of the property. Unsightly uses such as roof top equipment installation is conditioned to be either screened on top of the roof or be located interior to the structure. The final lighting for the development will be reviewed as part of the review of the project construction documents to ensure that they meet safety requirements while avoiding spill-over light to adjacent properties. The applicant has demonstrated compliance with the City’s Bird Safe Ordinance as well. c) The number, location, color, size, height, lighting and landscaping of outdoor advertising signs and structures shall minimize traffic hazards and shall positively affect the general appearance of the neighborhood and harmonize with adjacent development; and
Signage approval is not included in this application.
d) With respect to new projects within existing residential neighborhoods, new development should be designed to protect residents from noise, traffic, light and visually intrusive effects by use of buffering, setbacks, landscaping, walls and other appropriate design measures.

The site is not located within an existing residential neighborhood since it is located in the Heart of the City Special Plan Area. However, the project has been designed in the manner to protect other residents located in close proximity from noise, traffic, light and other visually intrusive effects by setting back and locating the homes further away from the existing residential uses on the street, in addition to screening landscaping proposed along the side and rear property lines to further buffer the project from surrounding uses. Additionally, all utilities have been proposed to be underground and the project will be required to meet the City's noise ordinance for any noising producing equipment, such as air conditioner units.

NOW, THEREFORE, BE IT RESOLVED:

That after careful consideration of maps, facts exhibits, testimony and other evidence submitted in this matter, subject to the conditions which are enumerated in this CC 01-17-2024
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Resolution, beginning on PAGE 4 herein, and subject to the conditions contained in all other Resolutions approved for this Project,
The application for an Architectural and Site Approval, Application No. ASA-2023-002, is hereby approved, and that the conclusions upon which the findings and conditions specified in this Resolution are based are contained in the Public Hearing record concerning Application no. ASA-2023-002 as set forth in the Minutes of the City Council Special Meeting of January 17, 2024, and are incorporated by reference as thoroughly set forth herein.

SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.

1. APPROVED EXHIBITS
Approval is based on the plan set entitled “Leon Townhouse, 10046 Bianchi Way Cupertino, CA 95014” consisting of thirty-five sheets labeled A0.0 – A10.0, L1-L1 and C3.1-C7.1 drawn by Tectonic Builders Corp., except as may be amended by conditions in this resolution.

2. ACCURACY OF 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.

3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. DP-2023-001, TM-2023-001 & TR2023-008

4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the first page of the building plans.

5. EXTERIOR BUILDING MATERIALS/TREATMENTS
The final building exterior plan shall closely resemble the details shown on the original approved plans. The final building design and exterior treatment plans (including but not limited to details on exterior color, materials, architectural treatments, doors, windows, lighting fixtures, and/or embellishments) shall be reviewed and approved by the Director of Community Development prior to issuance of building permits and through an in-field mock-up of colors prior to application to CC 01-17-2024
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ensure quality and consistency. Any exterior changes determined to be substantial by the Director of Community Development shall either require a modification to this permit or a new permit based on the extent of the change.

Future changes to the exterior building materials/treatments must be reviewed and approved by the Property Owner’s Association. As a Planned Unit Development, the exterior finishes of each of the units (including garage doors and exterior doors and windows) must remain harmonious with the same/coordinated materials used across both buildings.

6. BIRD SAFE FENESTRATION
Consistent with CMC 19.102.030, the development shall implement the bird safe fenestration and glass requirements. The applicant, prior to issuance of Building Permits, may submit for an Alternative Compliance Method in which the property owners/applicants may propose an alternate compliance method recommended by a qualified biologist to meet the requirements and intent of CMC 19.102.030. The alternate compliance method shall be peer-reviewed by a third-party consultant, paid for by the applicant, and subject to the approval of the Director of Community Development.

7. DARK SKY COMPLIANCE
Prior to issuance of Building Permits, the applicant/property owner shall submit final plans in compliance with the approved lighting plans to comply with development standards of Cupertino Municipal Code Section 19.102.030 Bird-Safe Development Requirements and/or Section 19.102.040 Outdoor Lighting Requirements. In the event changes are proposed from the approved plans, said changes must be reviewed and approved by the Director of Community Development or their designee. The applicant shall provide all documentation required to determine compliance with the Municipal Code. The final lighting plan (including a detailed photometric plan) shall be reviewed and approved by the Director of Community Development prior to building permit issuance. A report from a licensed lighting engineer may be required to confirm all exterior lighting throughout the site complies with the City’s Ordinance.

8. UTILITY STRUCTURE PLAN
Prior to issuance of building permits, the applicant shall work with staff to provide a detailed utility plan to demonstrate screening or undergrounding of all new utility structures [including, but not limited to backflow preventers (BFP), fire department connections (FDC), post-indicator valves (PIV), and gas meters] to the satisfaction of the Director of Community Development, Public Works, Fire Department, and applicable utility agencies.

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9. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult 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.

10. INDEMNIFICATION
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.

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11. 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 at a special meeting of the City Council of the City of Cupertino this 17th day of January 2024, by the following vote:

Vote Members of the City Council
AYES:

NOES:

ABSTAIN:

ABSENT:

SIGNED:
________
Sheila Mohan, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
CC 01-17-2024
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RESOLUTION NO.

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

APPROVING A TENTATIVE FINAL MAP TO ALLOW SUBDIVISION FOR

CONDOMINIUM PURPOSES ONLY, FOR A SEVEN UNIT TOWNHOME
DEVELOPMENT LOCATED AT 10046 BIANCHI WAY
SECTION I: PROJECT DESCRIPTION
Application No.: TM-2023-001
Applicant: Leon Hu of Top Mission Realty & Investment, Inc.

Location: 10046 Bianchi Way
APN#s: 359-07-021
SECTION II: FINDINGS FOR A TENTATIVE MAP:

WHEREAS, the City of Cupertino received an application for a Tentative Final Map (Application No. TM-2023-001) as described in Section I of this resolution; and WHEREAS, pursuant to the provisions of the California Environmental Quality Act of 1970 (Public Resources Code Section 21000 et seq.) ("CEQA") and the State CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.) ("CEQA Guidelines"), the project has been determined exempt under Class 32 CEQA Exemption pursuant to CEQA Guideline Sections 15332 (Infill Development Projects); and WHEREAS, on December 12, 2023, the Planning Commission recommended on a 3-1-1 vote (Noes: Madhdhipatla, Absent: Mistry) that the City Council approve the Development Permit (DP-2023-001) in substantially similar form to the Resolution presented (Resolution No.20), approve the Architectural and Site Approval Permit (ASA2023-002) in substantially similar form to the Resolution presented(Resolution No.21), approve the Tentative Final Map (TM-2023-001) in substantially similar form the Resolution presented (Resolution No.22) and approve the Tree Removal Permit (TR-2023- 008) in substantially similar form to the Resolution presented (Resolution No.23) except as may be further amended by conditions in this resolution; and WHEREAS, all necessary public notices having been given as required by the Procedural Ordinance of the City of Cupertino and the Government Code, and on January 17th, 2024, the City Council held a public hearing to consider the Tentative Map Permit; and WHEREAS, the City Council of the City of Cupertino is the decision-making body for this Resolution; and
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WHEREAS, the applicant has met the burden of proof required to support the application for a Tentative Map Permit; and
WHEREAS, the City Council finds:
a. That the proposed subdivision map is consistent with the City of Cupertino General Plan.

The subject property is consistent with the General Plan since the property is permitted to have up to 25 dwelling units an acre and the project qualifies for a density bonus. The proposed project complies with General Plan policies that include density, maximum building height, building design, site planning, and frontage improvements. b. That the design and improvements of the proposed subdivision are consistent with the General Plan.

The off-site improvements are consistent with the City's General Plan policies related to pedestrian safety by providing a parkway between the sidewalk and street, minimizing curb­cuts, and requiring an urban canopy within the public right-of-way. The project is also consistent with the General Plan's design requirements, since the project qualifies for waivers for side setbacks, common open space, and service access. c. That the site is physically suitable for the type development contemplated under the approved subdivision.

The proposed subdivision is compatible with the adjoining land uses and no physical constraints are present that would conflict with anticipated land use development. There are no topographical anomalies that differentiate this property from adjacent properties.

The site is located on the valley floor, as well as not listed within any environmentally sensitive zone.
d. That the site is physically suitable for the intensity of development contemplated under the approved subdivision.

The subject property is physically suitable in size and shape in conformance to development standards and is appropriately configured to accommodate a multi-unit residential development.
e. That the design of the subdivision or the proposed improvements are not likely to cause substantial environmental damage nor substantially and avoidably injure fish and wildlife or their habitat.

The proposed subdivision design and improvements are not likely to cause serious public health problems nor substantially injure fish and wildlife or their habitat because the property is a developed site and located in an urbanized area where residential land use is allowed.

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f. That the design of the subdivision or the type of improvements associated therewith are not likely to cause serious public health problems.

The proposed subdivision design and improvements are not likely to cause serious public health problems. The proposed development is consistent with the density and intent of the policies of the General Plan for a residential development on this site. The on-site and offsite improvements improve neighborhood walkability through improved sidewalk construction with size-appropriate driveway cuts and street and private tree plantings. g. That the design of the subdivision and its associated improvements will not conflict with easements acquired by the public at large for access through or use of property within the proposed subdivision.

There is an existing eight-foot public right-of way dedication that runs from north to south along the entire width of the front property line. The development is set back nine feet from the right-of way dedication, with no encroach from the proposed structure. The development will pay for and construct a new public sidewalk with proposed hardscape and softscape improvements. Furthermore, the developer has proposed a Public Art easement at the north-west corner of the lot, within the developments nine-foot front setback, adjoining the public right-of way dedication.

NOW, THEREFORE, BE IT RESOLVED:

That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter and subject to the conditions which are enumerated in this Resolution beginning on PAGE 3 thereof, and those contained in all other Resolutions approved for this Project,
The application for a Tentative Final Map, Application No. TM-2023-001, 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. TM-2023-001 as set forth in the Minutes of the City Council Special Meeting of January 17th, 2024 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 plan set entitled “Leon Townhouse, 10046 Bianchi Way Cupertino, CA 95014” consisting of thirty-five sheets labeled A0.0 – A10.0, L1-L1 and CC 01-17-2024
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C3.1-C7.1 drawn by Tectonic Builders Corp., except as may be amended by conditions in this resolution.

2. ACCURACY OF 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.

3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. DP-2023-001, ASA-2023-002, TM2023-001 & TR-2023-008 apply concurrently to this project.

4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the first page of the building plans.

5. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult 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.

6. EXISTING PG&E AND AT&T EASEMENT
Developer shall work directly with PG&E and PT&T to obtain approval from each respective utility company for the proposed vacation of the existing 20’ PG&E and AT&T easement. The easement may be vacated with the final map or quitclaimed by a separate instrument. The quitclaim shall be approved and recorded by PG&E and AT&T, prior to Final Map recordation or issuance of building permits.

7. CALIFORNIA WATER SERVICE COMPANY CLEARANCE
A letter of clearance shall be obtained from California Water Service Company prior to Final Map approval. The letter shall include their review and approval of the water connection, service capability, location and layout of water lines and backflow preventers, and any additional public service easements necessary to service the project.

8. SANITARY DISTRICT
A letter of clearance or sign off of street improvement plans for the project shall be obtained from the Cupertino Sanitary District prior to Final Map approval.

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9. UTILITY EASEMENTS
Clearance approval letters from the agencies with easements on the property (including PG&E, AT&T, and California Water Company, and/or equivalent agencies) will be required prior to Final Map approval. Their letters shall include their review and approval of any easement(s) to be vacated and/or quitclaimed, which include proposed private structures and utilities within the existing easement(s).

10. INDEMNIFICATION
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.

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The Applicant shall agree that the City shall have no liability to the Applicant for business interruption, punitive, speculative, or consequential damages.

11. 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.

CITY ENGINEER'S CERTIFICATE OF

ACCEPTANCE OF ENGINEERING/SURVEYING CONDITIONS
(Section 66474.18 California Government Code)
I hereby certify that the engineering and surveying conditions specified in Section IV. of this Resolution conform to generally accepted engineering practices. ____________________________________
Chad Mosley, Director of Public Works
City Engineer CA License 66077
PASSED AND ADOPTED at a special meeting of the City Council of the City of Cupertino this 17th day of January 2024 by the following vote:

Vote Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

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SIGNED:
________
Sheila Mohan, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
CC 01-17-2024
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RESOLUTION NO.

A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A TREE REMOVAL PERMIT TO REMOVE, AND REPLACE TEN (10)

DEVELOPMENT TREES TO ACCOMMODATE
A PROPOSED SEVEN (7) UNIT TOWNHOME DEVELOPMENT
LOCATED AT 10046 BIANCHI WAY (APN: 359-07-021)
SECTION I: PROJECT DESCRIPTION
Application No.: TR-2023-008
Applicant: Leon Hu of Top Mission Realty & Investment, Inc.

Location: 10046 Bianchi Way
APN: 359-07-021)
SECTION II: FINDINGS FOR TREE REMOVAL:

WHEREAS, the City of Cupertino received an application for a Tree Removal Permit (Application No. TR-2023-008) as described in Section I of this resolution; and WHEREAS, pursuant to the provisions of the California Environmental Quality Act of 1970 (Public Resources Code Section 21000 et seq.) ("CEQA") and the State CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.) ("CEQA Guidelines"), the project has been determined exempt under Class 32 CEQA Exemption pursuant to CEQA Guideline Sections 15332 (Infill Development Projects); and WHEREAS, on December 12, 2023, the Planning Commission recommended on a 3-1-1 vote (Madhdhipatla: No. Mistry: Absent) that the City Council approve the Development Permit (DP-2023-001) in substantially similar form to the Resolution presented (Resolution No.20), approve the Architectural and Site Approval Permit (ASA-2023-002) in substantially similar form to the Resolution presented(Resolution No.21), approve the Tentative Final Map (TM-2023-001) in substantially similar form the Resolution presented (Resolution No.22) and approve the Tree Removal Permit (TR-2023-008) in substantially similar form to the Resolution presented (Resolution No.23) except as may be further amended by conditions in this resolution; and
WHEREAS, all necessary public notices having been given as required by the Procedural Ordinance of the City of Cupertino and the Government Code, and on January 17th, 2024, the City Council held a public hearing to consider the Tree Removal Permit; and WHEREAS, the City Council of the City of Cupertino is the decision-making body for this Resolution; and
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WHEREAS, the applicant has met the burden of proof required to support the application for Tree Removal Permit.

WHEREAS, the City Council finds:
a) 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).

In order to accommodate for the new residential development buildings, walkways and emergency and vehicle access onto the site, the existing trees cannot be preserved in their locations. The applicant proposes replacement trees throughout the site and proposes to locate the replacements where tree coverage is needed. Due to the physical restraints of the site the applicant cannot accommodate all 18 24”-box replacement trees on site. Therefore, the applicant has proposed to replant 10 24”-box trees on site and pay an in-lieu tree replacement fee per CMC 14.18.160(B)(3) of $27,450.00 for the remaining 8 trees not planted on site. Additionally, the applicant has proposed 3 street trees in the public right-of-way.

NOW, THEREFORE, BE IT RESOLVED:

That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter and subject to the conditions which are enumerated in this Resolution beginning on PAGE 2 thereof, and those contained in all other Resolutions approved for this Project.

The application for a Tree Removal Permit, Application No. TR-2023-008, is hereby approved, and that the subconclusions upon which the findings and conditions specified in this Resolution are based are contained in the Public Hearing record concerning Application No. TR-2023-008 as set forth in the Minutes of the City Council Special Meeting of January 17th, 2024 Meeting, 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 plan set entitled “Leon Townhouse, 10046 Bianchi Way Cupertino, CA 95014” consisting of thirty-five sheets labeled A0.0 – A10.0, L1-L1 CC 01-17-2024
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RESOLUTION NO.

and C3.1-C7.1 drawn by Tectonic Builders Corp., except as may be amended by conditions in this resolution.

2. ACCURACY OF 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.

3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. DP-2022-001, ASA-2023-002, and TM-2023-001 shall be applicable to this approval.

4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the first page of the building plans.

5. TREE REPLACEMENT & IN-LIEU TREE REPLACEMENT FEE
Seven (7) trees (#1, 5, 6, 7, 8, 9 & 10) identified in the Arborist Report prepared by Davey Resource Group July 2023 are approved for removal with trunk diameter breast height (DBH) ranging from 14” to 38.5”. Ten (10) 24-inch box replacement trees shall be planted on site – five (5) Jerusalem Thorn and five (5) Blue Oak. In addition, an in-lieu tree replacement fee for the remaining 8 trees that cannot be accommodated on site and in addition valuation for the removal of Tree #9 (38.5-inch Coast Live Oak, in good condition) has been calculated using the guidelines outlined in the 10th Edition Guide for Plant Appraisal by the Council of Tree and Landscape Appraisers. The property owner shall pay an ISA calculated value in the amount of $3,200 ($400/tree - 8 trees) and $24,250 per the valuation for the removal of Tree #9, as required by Municipal Code 14.18.160.B.3; for a combined in-lieu tree replacement fee of $27,450.

6. TREE RETENTION
Tree #11 (14” Monterey Cypress) located on the property directly to the south of the subject property shall require tree protection as well as a monitoring schedule during construction. A monitoring schedule prepared by an ISA Certified Arborist will be provided to planning prior to building permit issuance.

Monitoring of the tree protection specifications by an ISA Certified Arborist is required at monthly intervals. The applicant shall retain an ISA certified arborist to prepare Monitoring letters to be provided to the project planner or Planning CC 01-17-2024
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Department via [email protected] confirming the results of the project monitoring.
a. Arborist monitoring shall be performed when removal of the existing driveway occurs, as well as during excavation and compaction for the new driveway.
b. All excavation within the CRZ must be hand-dug or performed by air spade with the project arborist on site, and the arborist must approve the pruning of roots over 2 inches. Any roots uncovered or pruned must be wrapped in damp burlap that will be kept moist until the roots are able to be covered over with soil.
c. Tree #11 Tree Protection Zone (TPZ) fencing should be installed prior to the start of any demolition or construction and must remain in place for the entirety of the project. Fencing shall encompass as much of the TPZ that overhangs the subject property. If the neighbors agree, it is recommended that TPZ fencing fully encompass the tree and extend onto the property where the tree is located. TPZ fencing should be 6 feet in height and constructed of chain link fencing. Signs must be posted stating: “TREE PROTECTION FENCE - DO

NOT MOVE OR REMOVE WITHOUT APPROVAL FROM CITY/PROJECT
ARBORIST. NO STORING OF MATERIALS OR MACHINERY.” The fence may not be moved without authorization from the ISA certified project arborist.

7. ARBORIST REVIEW
Prior to building permit issuance, the number, location and species of replacement trees, if modified, shall be reviewed and approved by the City in consultation with the City’s Consulting Arborist.

The replacement trees shall be planted prior to building permit planning 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 applicant’s 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.

8. TREE PROTECTION
a. As part of the demolition or building permit drawings, a tree protection plan shall be prepared by an ISA certified arborist hired by the project applicant for the trees to be retained. In addition, the following measures shall be added to the protection plan:

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RESOLUTION NO.

• 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. • No parking or vehicle traffic shall be allowed under root zones, unless using buffers approved by the Project Arborist.
• 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 review proposed plans, at applicant cost, 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.
• Tree protection conditions shall be posted on the tree protection barriers. • Retained trees shall be watered to maintain them in good health. • A covenant on the property shall be recorded that identifies all the protected trees, prior to final occupancy.
b. The tree protection measures shall be inspected and approved by the certified arborist prior to issuance of building permits.
c. The applicant arborist shall inspect the trees to be retained and shall provide reviews prior to issuance of demolition, grading or building permits. d. A report as prepared by the applicant arborist ascertaining the good health of the trees mentioned above shall be provided prior to issuance of final occupancy.

9. 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 replacement trees on site upon sale of the property.

10. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult 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
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 CC 01-17-2024
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RESOLUTION NO.

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.

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.

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RESOLUTION NO.

PASSED AND ADOPTED at a special meeting of the City Council of the City of Cupertino this 17th day of January 2024, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Sheila Mohan, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
CC 01-17-2024
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Corporate Headquarters
1500 North Mantua Street
P.O. Box 5193
Kent, OH 4240-5193
330-673-5685
Toll-Free 1-800-828-8312
Fax: 330-673-0860
Northern California Office
PO Box 5321
Larkspur, CA 94977
669-236-7619
[email protected]

ARBORIST REPORT AND TREE

PROTECTION PLAN
10046 Bianchi Way, Cupertino CA 95014
July 2023
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Arborist Report & Tree Protection Plan for
10046 Bianchi Way
Cupertino, California 95014
Prepared for:

Mike Wilson
MKI Builders, Inc.
[email protected]
209-423-1612
July 2023
Prepared by:

Davey Resource Group
A Division of The Davey Tree Expert Company
1500 North Mantua Street
Kent, OH 44240
Contact:

Elizabeth Lanham
ISA Arborist #WE-9234A
TRAQ Qualified
www.daveyresourcegroup.com
Notice of Disclaimer
Inventory data provided by Davey Resource Group is based on visual recording at the time of inspection. Visual records do not include testing or analysis and do not include aerial or subterranean inspection. Davey Resource group is not responsible for discovery or identification of hidden or otherwise non-observable risks. Records may not remain accurate after inspection due to variable deterioration of inventoried material and site disturbance. Davey Resource Group provides no warranty with respect to the fitness of the urban forest for any use or purpose whatsoever or for future outcomes of the inventoried trees.

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Contents
Summary 3
Introduction 3
Background 3
Assignment 3
Limits of Assignment 4
Purpose and Use of Report 4
Observations 4
Methods 4
Site Observations 4
Tree Observations 4
Root Zone Calculations 4
Conclusion and Recommendations 5
Appendix A – Location Map 7
Appendix B – Tree Photos 8
Appendix C – Tables 19
Table 1. Tree Inventory and Root Zones 19
Table 2. Condition Assessment June 2023 19
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Summary
In June of 2023, Davey Resource Group (DRG) was contracted by Mike Wilson of MKI Builders to conduct a tree inventory and develop a tree protection plan as well as planting recommendations for the trees in the area of impact on the property at 10046 Bianchi Way in Cupertino, CA. The request was made to assess the current condition of the trees and establish a protection plan based on the findings, then to develop a planting plan that would enhance the site with the trees that are appropriate for the space but will provide the best value over time.

On July 6, 2023, an International Society of Arboriculture (ISA) Certified and TRAQ Qualified Arborist (Elizabeth Lanham, WE-#9234A) from Davey Resource Group evaluated six (6) trees that may be impacted by development. The trees were assessed by their location, size, current condition, health, structure, and form. The current site plan was used to estimate the construction footprint in relation to the critical root zones (CRZ) of the trees to help guide construction and to reduce potential impacts on the trees. Current plans include the demolition of two existing multi-family dwellings for the construction of seven townhouses, a driveway, and walkways. Tree information is summarized as follows:
● Eight (8) trees were assessed, consisting of seven (7) distinct species; these consist of black walnut (Juglans negra), Coast live oak (Quercus agrifolia), common fig (Ficus carica), glossy privet (Ligustrum lucidum), Hollywood juniper (Juniperus chinensis), Italian cypress (Cupressus sempervirens), and Monterey cypress (Hesperocyparis macrocarpa - 2 trees; one on neighboring property). Three (3) trees had previously been removed and were reported as fern pine (Afrocarpus gracilior - 2 trees), and Victorian box (Pittosporum undulatum - one tree)
● The inventory encompasses the trees that may be impacted by the proposed construction that fit Cupertino tree ordinance section 14.18 - Protected Trees
● Three (3) trees were in good condition, one (1) in fair condition, and four (4) trees were in poor condition. ● Tree height approximations ranged from 10 to 45 feet. ● Tree diameters at four and a half feet above grade/breast height (DBH) ranged from 14 inches on a single-trunked Monterey cypress to 38.5 inches on a multi-trunked Coast-live oak. ● Seven (7) trees are recommended for removal under the current plans - trees 1, 5, 6, 7, 8, 9, and 10. ○ Per the Cupertino protected tree ordinance section 14.18.110, trees 1, 5, 6, 9, and 10 require a permit for removal.
○ Based on the Replacement Tree Guidelines chart provided in section 14.18.160, the replacement ratio will be eighteen (18) 24” box trees box tree or nine (9) 36” box trees. The in-lieu fees for tree #9 are based on the tree appraisal value using the guidelines in the 10th Edition Guide for Plant Appraisal by the Council of Tree and Landscape Appraisers ○ Due to both observational and scientific evidence that the smallest tree planted is the most likely to be successful, the project Arborist recommends using 24-inch box trees onsite. However due to the high-density nature of the project, no more than ten plantings of strategically selected climate-adapted, drought-compatible, native, and regionally appropriate trees ○ Planting recommendations are provided as an additional map. See Appendix B for details. ○ The replacement value for the additional 8 - 24-inch box trees is recommended to be $400 a tree (following the values in the Menlo Park municipal code, which provides recommendations) or $3,200. Tree #9’s in lieu calculation was determined to be $24,250, for a combined total of $27,450. ● The neighboring Monterey pine is recommended for retention; tree protection measures are provided.

This report focuses on tree protection recommendations for tree preservation and provides the CRZs and SRZs of these trees for planning purposes. DRG has provided general site preservation recommendations based on the provided construction plans. Arborist monitoring of construction is required whenever work is performed within the drip line of significant trees. Trenching must be done by hand or with pneumatic air spade excavation tools. The trees identified for preservation should be monitored by a Certified Arborist at the end of construction and ongoing as needed.

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Introduction
Background
Current plans for new construction at 10046 Bianchi Way in Cupertino include the demolition of the two existing multi-family homes, followed by the construction of seven new townhouses with newly dug foundations, driveway access, and newly installed walkways. The site will comprise structures and mostly hardscape, with a 5-10 foot green belt around the premises, and small front yards (approximately 6 ft at the narrowest measure). All trees over 4 inches in diameter on the property and adjacent properties that may be impacted by the proposed construction were assessed and evaluated for impacts in accordance with Cupertino tree ordinance sections 14.18.050, 060, 200, and 210.

Assignment
The arborist visually assessed each tree on the site, and the required tree data were collected using a portable tablet device. Following data collection, specific tree preservation plan elements were calculated that identified each tree's critical and structural root zones (CRZ and SRZ) to better ensure survivability during the planned development. This report establishes the condition of the trees and canopy within the project area. The trees were visually assessed, and photo documented so that changes in condition can be evaluated if needed. Planting recommendations were developed by reviewing the proposed development plans, City of Cupertino BMPs and ordinances, and industry BMPs regarding resilient tree species for the region.

Limits of the Assignment
Many factors can limit specific and accurate data when performing evaluations of trees, their conditions, and the potential for failure or response to site disturbances. No soil or tissue testing was performed. All observations were made from the ground on July 6, 2023, and no soil excavation to expose roots was performed. The most recent development plans were available to determine potential construction impacts. The determinations and recommendations presented here are based on current data and conditions that existed at the time of the evaluation and cannot be a predictor of the ultimate outcome for the evaluated trees in the future. No physical inspection of the upper canopy, sounding, resistance drilling, or other technologies were used in the evaluation of the trees.

Purpose and Use of Report
The purpose of this report is to provide a summary inventory of all trees within the project area of impact, including an assessment of the current condition and health, as well as providing a tree protection plan and planting recommendations for all evaluated trees/canopies that may be impacted by construction plans. The findings in this report can be used to make informed decisions on design planning and guide the trees' long-term care. This report and detailed tree protection plan can also be submitted to the City of Cupertino for permitting purposes.

Observations
Methods
A visual inspection was used to develop the findings, conclusions, and recommendations found in this report. Data collection included measuring the diameter of significant trees at approximately 54 inches above grade (DBH), height estimation, a visual assessment of tree condition, structure, and health, and a photographic record. A rating percentage (0-100%) was assigned for each tree’s health, structure, and form, and the lowest percentage was used as the overall tree condition.

Site Observations
The project site is located in the City of Cupertino on Bianchi Way, just South of Stevens Creek Blvd. The parcel is a privately owned lot with two existing multi-family houses, connected by an exterior breezeway structure. The lot is 14,975 square feet and the maximum allowable is 8.57 units. The property is on level ground. Only trees impacted by the construction that met ordinance criteria for protection were assessed.

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Tree Observations
Eight (8) trees were assessed, consisting of seven (7) distinct species; these consist of black walnut (Juglans negra), Coast live oak (Quercus agrifolia), common fig (Ficus carica), glossy privet (Ligustrum lucidum), Hollywood juniper (Juniperus chinensis), Italian cypress (Cupressus sempervirens), and Monterey cypress (Hesperocyparis macrocarpa - 2 trees; one on neighboring property). Three (3) trees had previously been removed and could not be observed by the arborist. These were reported as fern pine (Afrocarpus gracilior - 2 trees), and Victorian box (Pittosporum undulatum - one tree), and are only included as part of this report because they are on the survey. Please note that these are included in the tree calculations.

The trees are mostly mature, and tree condition ratings were good for three (3) trees, fair for one (1) tree, and poor for four (4) trees. Tree diameters ranged from 14 inches for a single-trunked Monterey cypress to 38.5 inches for a multi-trunked Coast live oak with an average of 20.4 inches. Tree heights ranged from 10 feet to 45 feet, with an average height of 27.5 feet.

A map of tree locations can be found in Appendix A. Tree photographs can be found in Appendix C and a complete Tree Inventory and Condition Assessment can be found in Appendix D.

Root Zone Calculations
The trunk diameters of the assessed trees are often used to determine the Critical Root Zone (CRZ). The CRZ is considered the ideal preservation area for a tree. It can be calculated by adding 1 foot of radius for every inch of trunk diameter measured at 4.5 feet from grade/breast height (DBH). For example; a tree with a DBH of 10 inches has a calculated CRZ radius of 10 feet from the trunk. The CRZ represents the typical rooting area required for tree health and survival. As this project is located in the City of Cupertino, CRZ was substituted with the city standard of the circular area around a tree with a radius measured to the nearest foot of the tree’s longest dripline to determine the Tree Protection Zone (TPZ) as seen in Table 1 according to Cupertino’s ordinance 14.18 APPENDIX A: STANDARDS FOR THE PROTECTION OF TREES DURING GRADING AND CONSTRUCTION OPERATIONS. Some impact (25% or less) within this zone is typically acceptable for average to good-condition trees with basic mitigation/stress reduction measures.

Construction activities should not occur within the TPZ of any tree to be retained. This includes but is not limited to the storage of materials, parking of vehicles, contaminating soil by washing out equipment, (concrete, paint, etc.), or changing soil grade.

The structural root zone was calculated using a commonly accepted method established by Dr. Kim Coder in Construction Damage Assessments: Trees and Sites. In this method, the root plate size (i.e. pedestal roots, zone of 1 rapid taper area, and roots under compression) and limit of disruption based upon tree DBH is considered as a minimum distance that any disruption should occur during construction. A significant risk of catastrophic tree failure exists if structural roots within this given radius are destroyed or severely damaged. The SRZ is the area where minimal or no disturbance should occur without arborist supervision. The TPZ and SRZ for the surveyed trees are listed in Appendix B, Table 2.

Conclusion and Recommendations
Based on visual evaluations and the impacts of the proposed development, all trees have the ability to be impacted.

The following recommendations will minimize the impacts as much as possible. ● Trees 1, 6, 7, 8, and 9 are within the footprint of the proposed construction and will require removal. ● Trees 5 and 10 are both in poor condition and the impact of the demolition and construction on the CRZ of the trees will be too significant, requiring these trees to be removed as well. 1 Dr. Kim D. Coder, University of Georgia June 1996
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● Per the Cupertino protected tree ordinance section 14.18.110, trees 1, 5, 6, 9, and 10 require a permit for removal
● Tree 11 is on the neighboring property and will require tree protection as well as a monitoring schedule during construction.
● Tree 11 TPZ fencing should be installed to encompass as much of the TPZ that overhangs the subject property.

If the neighbors agree, it is recommended that TPZ fencing fully encompass the tree and extend onto the property where the tree is located.
● Arborist monitoring must be performed when removal of the existing driveway occurs, as well as during excavation and compaction for the new driveway. All excavation within the CRZ must be hand-dug or performed by air spade with the project arborist on site, and the arborist must approve the pruning of roots over 2 inches. Any roots uncovered or pruned must be wrapped in damp burlap that will be kept moist until the roots are able to be covered over with soil.
● TPZ fencing should be 6 feet in height and constructed of chain link fencing. The fencing may be moved within the dripline if directed by the project arborist or City Arborist but cannot be moved to within 2 feet of the trunk. Fence posts should be 2-inch in diameter and galvanized, and installed 2 feet below grade. Posts may be movable rather than below grade if instructed by the City Arborist and may not be spaced more than 10 feet apart. Signs must be posted stating: “TREE PROTECTION FENCE - DO NOT MOVE OR REMOVE WITHOUT APPROVAL FROM CITY/PROJECT ARBORIST. NO STORING OF MATERIALS OR MACHINERY.” The fence may not be moved without authorization from the project arborist or City Arborist. ● TPZ fencing must be in place before any equipment is on-site and must remain in place for the entirety of the project and only be removed, temporarily or otherwise, with the approval of a Certified Arborist while activities are directly supervised, and replaced immediately after. ● Monitoring of the tree protection specifications by an ISA Certified Arborist or ASCA Registered Consulting Arborist is required at monthly intervals.A corresponding monitoring letter should be provided to the project confirming the results of the project monitoring.
● No material shall be stored, nor concrete basins washed, or any chemical materials or paint stored within the TPZ of trees, and no construction chemicals or paint should be released into landscaped areas, as these can be toxic to trees and contaminate the soil.
● After construction is complete, the property owner should monitor the trees for at least one year and contact a Certified Arborist to inspect if any lean, limb die-back, leaf drop, or foliage discoloration develops.

Considerations for Tree #9 - The Coast Live oak (Quercus agrifolia) Tree 9 is at the back property line. It is pushing the good neighbor fence and has caused damage to the parking lot of the church on the other side of the fence from the subject property. Due to the location of this tree directly on the property line, this tree appears to be a volunteer that was allowed to mature over time.

The planned construction is scheduled to have excavation within less than 7 ft of this tree’s trunk, putting trenching right through the middle of the 17 ft SRZ, which is the area of the root zone, which cannot be disturbed due to severe risk of health or structural impacts (see Root Zone Calculations section for more details), and well into the 38.5 ft CRZ, which is the area where minimal disturbance should take place. Quercus agrifolia has a low tolerance for root damage, and an impact this severe is likely to be catastrophic to the health and/or structure of this tree, contributing to an untimely decline or tree failure. Without making significant plan changes, which will affect the density usage of this parcel, retaining this tree is not advised. Even with design changes, the tree will need to undergo significant root pruning, which may still affect the health and structure, but also is likely to result in reaction growth of new roots that will damage the hardscape and foundations of the new homes, leading to costly repairs and the removal of this tree within as few as five to ten years. Removal of tree 9 is recommended.

Since the DBH of this tree is above 36”, in-lieu fees will be calculated for this tree using the trunk formula method as described in the 10th edition of the Guide for Plant Appraisal by the Council of Tree and Landscape Appraisers. The basic formula is as follows:

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The basic tree cost is the sum of the installed tree cost and the cost of the difference between the adjusted trunk area and the replacement tree size (appraised tree size increase multiplied by unit tree cost). Size was measured as trunk cross-sectional area (square inches), calculated by 0.785 x (DBH)²; where a circular cross-section was assumed.

Species size and cost data were obtained from the ISA Western Chapter Species Classification for Landscape Tree Appraisal (2004). The Western rating was used. No nursery group data were used as the Basic Tree Cost was calculated using the above formula(s). Unit tree cost was determined to be $175. The condition rating was based on field observations already described. The functional and external limitation ratings were based on field and aerial imagery observations. The basic functional replacement tree cost was then calculated by multiplying the functional replacement tree cross-section area by the unit tree cost. The depreciated functional replacement tree (calculated using the basic functional replacement cost, the overall condition rating (%), the functional limitations rating (%), and the external limitations rating (%)) is then calculated, then rounded to provide the rounded replacement cost.

Tree
#
Botanical Name Condition
External
Limitations
(%)
Functional
Limitations
(%)
Total Appraisal
Cost ($)
Rounded Total
Appraisal Cost
($)
9 Quercus agrifolia
Good
(61-80%) 75% 50% $24,249 $24,250
Recommended Planting Palette
Appendix B shows the location and species of trees recommended for planting as part of the new planting plan. While Cupertino has a guideline of Callery pears as street trees in this neighborhood, these trees are poorly structured, susceptible to fireblight, and in some regions, are considered invasive species. This leads to a lengthy and painstaking maintenance process that may result in specimens with limb failures, with pest and disease issues, and that is not contributing to a long-term resilient urban forest for Cupertino. For this reason, the project arborist suggests using Cornus nutallii x florida (‘Eddies White Wonder’ dogwood) as the replacement street tree species. These trees will have beautiful white spring flowers, but are climate and drought-adapted, and do not have any pervasive pest and disease issues, nor do they have similar invasive properties. As an ornamental species, Parkinsonia aculeata (Jerusalem thorn) has been selected. This showy and drought-tolerant tree will provide beautiful color, but stay hearty for the climate even if it were to become 5-10 degrees F warmer on average. Finally, Quercus douglasii (blue oak) was selected as the property shade tree. These native slow growers will develop a large canopy over time but will provide enough time for maintenance to be able to take place to train the trees into an appropriate structure so that they will not negatively impact the condition of the buildings. Pruning of these trees can take place in a thoughtful, planned, judicious manner, as it would likely be 75 or more years before these trees would begin to damage the structures if left unmaintained.

Each tree should have a dedicated bubbler for its establishment and should receive approximately 1.5-2 gallons of water per inch of trunk diameter per week based on soil absorption levels. This value should be adjusted during the rainy season accordingly. The soil should be moist but should not be maintained soggy, as these trees are adapted for dryer climates. Care should be taken not to overwater the oaks during the summer months, as they are accustomed to a naturally Mediterranean climate and expect dryer conditions. Soil moisture should be maintained in the basins of the newly planted trees with a 3-4 inch layer of mulch. being sure to keep the trunk flares clear of mulch for proper airflow, and mulching to the trees’ dripline wherever possible.

The planting plan shows 10 new trees to be planted on site. While 36-gallon trees would be the quickest way to accomplish the City’s planting standards, the project arborist recommends planting 24-inch box trees. Both observational (throughout this arborist’s 17-year career) and scientific (University of Arizona; Jim Downer) evidence Leon Townhouses - 10046 Bianchi Way, Cupertino 7 July 2023 CC 01-17-2024
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supports that on a five-year or less timeline, no difference can be observed between a 15-gallon tree and a 36-inch box tree in regard to their size, but the 36-inch box tree adds additional costs to the project and often has poor root structure that cannot be remedied due to being in either its 15-gallon container or 24-inch box too long. The smaller the tree, the faster it will usually develop, as it is under less stress than a larger transplanted tree. Since the City does not offer 15-gallon as a replacement size, the project arborist recommends that the smallest size option of 24-inch boxes be allowed for the replacement trees. Based on the Replacement Tree Guidelines chart provided in section

14.18.160, the replacement ratio will be eighteen (18) 24” box trees box tree or nine (9) 36” box trees. The in-lieu fees for tree #9 are based on the tree appraisal value using the guidelines in the 10th Edition Guide for Plant Appraisal by the Council of Tree and Landscape Appraisers. The replacement value for the additional 8 - 24-inch box trees is recommended to be $400 a tree (following the values in the Menlo Park municipal code, which provides recommendations) or $3,200. Tree #9’s in lieu calculation was determined to be $24,250, for a combined total of $27,450.

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Appendix A – Location Map
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Appendix B – Planting Map
Planting plan recommendations
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Appendix C – Tree Photos
Sample set. Additional photos are available upon request.

Photo 1. Tree #1 is a Monterey cypress in poor condition that will be removed for the project Leon Townhouses - 10046 Bianchi Way, Cupertino 11 July 2023 CC 01-17-2024
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Photo 2. Tree #5 is in poor condition and will be removed for the project.

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Photo 3. Tree #6 is in goof condition, but is in the footprint of the proposed project and will require removal Leon Townhouses - 10046 Bianchi Way, Cupertino 13 July 2023 CC 01-17-2024
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Photo 4. Tree #7 is in good condition but is in the footprint of the planned construction and will require removal Leon Townhouses - 10046 Bianchi Way, Cupertino 14 July 2023 CC 01-17-2024
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Photo 5. Tree #8 is in poor condition and will be removed as part of the project Leon Townhouses - 10046 Bianchi Way, Cupertino 15 July 2023 CC 01-17-2024
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Photo 6. Tree #9, located on the property line, will have significant construction impacts and requires removal Leon Townhouses - 10046 Bianchi Way, Cupertino 16 July 2023 CC 01-17-2024
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Photo 7. Tree #10 is a poor-condition fig tree in partial failure that will be removed as part of the project Leon Townhouses - 10046 Bianchi Way, Cupertino 17 July 2023 CC 01-17-2024
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Photo 8. Tree #11, the neighboring Monterey cypress is in fair condition and will require tree protection Leon Townhouses - 10046 Bianchi Way, Cupertino 18 July 2023 CC 01-17-2024
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Appendix D – Tables
Table 1. Tree Inventory and Root Zones
Tree
# Stems
DBH
(in.) Common Name Botanical Name Height (ft) Canopy (ft) SRZ (Radius
in ft)
CRZ
(Radius
in ft)
1 1 16 Monterey cypress
Hesperocyparis
macrocarpa 40 27 7 13.5
2 1 18 Victorian box
Pittosporum
undulatum n/a n/a n/a n/a
3 1 20 Fern pine Afrocarpus gracilior n/a n/a n/a n/a
4 1 18 Fern pine Afrocarpus gracilior n/a n/a n/a n/a
5 3 29.5 Black walnut Juglans negra 30 40 13 20
6 1 19 Italian cypress
Cupressus
sempervirens 45 12 9 6
7 2 15.5 Hollywood juniper Juniperus chinensus 10 18 7 9 8 5 16.5 Glossy privet Ligustrum lucidium 15 12 7 6
9 2 38.5 Coast live oak Quercus agrifolia 35 50 17 25
10 1 19 Common fig Ficus carica 25 36 9 18
11 1 14 Monterey cypress
Hesperocyparis
macrocarpa 20 24 6 12
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Table 2. Condition Assessment June 2023
Tree
#
Common
Name
Health
(%)
Structure
(%)
Form
(%)
Ordinance
Size (Y/N)
Removal
Proposed
(Y/N) Notes
1 Monterey
cypress 50% 45% 35% Y Y
Girdling Roots, Root Damage/Decay,
Co-Dominant Stems, Small
Deadwood (1-2"), Low Vigor,
Stressed, Overhead Utilities,
Driveway damage ~3 inches
2 Victorian box n/a n/a n/a n/a REMOVED
3 Fern pine n/a n/a n/a n/a REMOVED
4 Fern pine n/a n/a n/a n/a REMOVED
5 Black walnut 45% 35% 35% Y Y
Trunk Decay, Co-Dominant Stems,
Small Deadwood (1-2"), Stressed,
Branch Decay, Gopher issues, cavity
at base
6 Italian cypress 75% 65% 65% Y Y
Buried Root Collar, Included
Bark/Weak Union, Co-Dominant
Stems, Small Deadwood (1-2"),
Insect/Disease Problem, Sidewalk
lift of about 2 inches
7 Hollywood
juniper 75% 75% 75% N Y
Co-Dominant Stems, Small
Deadwood (1-2")
8 Glossy privet 35% 45% 40% N Y
Buried Root Collar, Included
Bark/Weak Union, Co-Dominant
Stems, Large Deadwood (3"+), Small
Deadwood (1-2"), Severe Decline,
Branch Decay
9 Coast live oak 80% 65% 70% Y Y
Buried Root Collar, Included
Bark/Weak Union, Co-Dominant
Stems, Large Deadwood (3"+), Small
Deadwood (1-2"), Branch Decay
10 Common fig 85% 30% 30% Y Y
Trunk Decay, Included Bark/Weak
Union, Co-Dominant Stems, Broken
Limbs, Tree has already failed
11 Monterey
cypress 80% 60% 60% N N
Small Deadwood (1-2"), Overhead
Utilities
Leon Townhouses - 10046 Bianchi Way, Cupertino 20 July 2023 CC 01-17-2024
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Leon Townhouses - 10046 Bianchi Way, Cupertino 21 July 2023 CC 01-17-2024
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TEN ALMADEN BOULEVARD

ELEVENTH FLOOR
SAN JOSE, CALIFORNIA 95113-2233
TELEPHONE: (408) 286-5800
FACSIMILE: (408) 998-5388
www.berliner.com Branch Offices
Merced, CA • Modesto, CA
____________ ____________

FOUNDERS
SANFORD A. BERLINER (d. 2020)
SAMUEL J. COHEN

OF COUNSEL
STEVEN L. HALLGRIMSON
PEGGY L. SPRINGGAY
FRANK R. UBHAUS
RALPH J. SWANSON
NANCY L. BRANDT
LESLIE KALIM McHUGH

BRADLEY HEBERT
ERIC D. CAPRON
STUART B. SPENCER
THOMAS P. MURPHY
KATHRYN G. SPELMAN
September 21, 2023

SUBMITTED WITH PROJECT APPLICATION
Danielle Condit, Associate Planner
Community Development Department
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3255
[email protected]
Re: Affordable Housing Plan and Density Bonus Report for Housing Development Project Proposed at 10040 & 10046 Bianchi Way, APN 359-07-021 (Leon Hu) Dear Danielle Condit:

This letter is on behalf of Leon Hu (the “Applicant”) with respect to the above referenced project (the “Project”). Attached hereto is the Applicant’s Affordable Housing Plan and Density Bonus Report for the Project, dated August 15, 2023, which was submitted with the prior resubmittal for the Project. The attached letter is hereby resubmitted, subject to one clarification.

The first bullet-point on page 3 of the attached letter refers to a 35-foot front setback requirement. This should refer to a 20-foot setback requirement. As such, the first bullet-point is hereby revised to read as follows:
“An exception to the 35-foot and 20-foot front yard setback pursuant to the Heart of the City Specific Plan (the “Plan”) at § 1.01.030.B.1 and CMC 19.36.070. As shown on Sheet A1.0 of the plan set, the proposed front setback is approximately six feet for the length of the townhouses along Bianchi Way. If 35-feet or 20-feet were provided, these units would lose approximately half a substantial portion ANDREW L. FABER
SAMUEL L. FARB
JAMES P. CASHMAN
STEVEN J. CASAD
NANCY J. JOHNSON
JEROLD A. REITON
JONATHAN D. WOLF
KATHLEEN K. SIPLE
KEVIN F. KELLEY

MARK MAKIEWICZ

JOLIE HOUSTON
BRIAN L. SHETLER
HARRY A. LOPEZ
CHARLES W. VOLPE
CHRISTINE H. LONG
AARON M. VALENTI
CHRISTIAN E. PICONE
SUSAN E. BISHOP
SANDRA G. SEPÚLVEDA
MICHAEL B. IJAMS
KIMBERLY G. FLORES
DAWN C. SWEATT
TYLER A. SHEWEY
JAMES F. LANDRUM, JR.

MICHAEL J. CHENG
EILEEN P. KENNEDY

JOSHUA BORGER
BENJAMIN M. JOHNSON
STEPHEN C. SCORDELIS
C. DAVID SPENCE
ALESHIA M. WHITE

DENNIS CHIN
ALEXANDRIA N. NGUYEN
LEILA N. SOCKOLOV

ALAN LAW
TIMOTHY K. BOONE
BLAINE R. COX

ANGELA SHAW
DAVID A. BELLUMORI
NATHAN C. BRADY
BRANDON L. REBBOAH
LINDSAY I. WALCZAK

MAYSA SAEED
IRIS C. CHIU
MAKAYLA A. WHITNEY
JACE D. LYNCH
MARISA J. MARTINSON
CHEYENNE A. VANKIRK
MARIA I. PALOMARES
BENJAMIN H. WOHLFORD
KEVIN S. LANDIS
TIFFANY A. SCOGGIN
CHRISTIAN D. WICK
STACEY A. MACIAS
JENNIFER N. WISE
JULIA L. COVELLO

SAM ATABAY BIDGOLI
MATTHEW C. TOSCANO

ROBERT AVERSA-GOODMAN
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September 21, 2023
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of their buildable area, requiring either a loss in density or significantly smaller units of a product type the Applicant is not proposing.”
No change is proposed to footnote 8 of the letter. Please let me know if you have any questions, comments, or concerns.

Very truly yours,

BERLINER COHEN, LLP
ANDREW L. FABER
E-Mail: [email protected]
ALF:ER
Attachment
CC 01-17-2024
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TEN ALMADEN BOULEVARD

ELEVENTH FLOOR
SAN JOSE, CALIFORNIA 95113-2233
TELEPHONE: (408) 286-5800
FACSIMILE: (408) 998-5388
www.berliner.com Branch Offices
Merced, CA • Modesto, CA
____________ ____________

FOUNDERS
SANFORD A. BERLINER (d. 2020)
SAMUEL J. COHEN

OF COUNSEL
STEVEN L. HALLGRIMSON
PEGGY L. SPRINGGAY
FRANK R. UBHAUS
RALPH J. SWANSON
NANCY L. BRANDT
LESLIE KALIM McHUGH

BRADLEY HEBERT
ERIC D. CAPRON
STUART B. SPENCER
THOMAS P. MURPHY
KATHRYN G. SPELMAN
August 15, 2023

SUBMITTED WITH PROJECT

APPLICATION
Danielle Condit, Associate Planner
Community Development Department
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3255
[email protected]
Re: Affordable Housing Plan and Density Bonus Report for Housing Development Project Proposed at 10040 & 10046 Bianchi Way, APN 359-07-021 (Leon Hu) Dear Danielle Condit:

This letter is on behalf of Leon Hu (the “Applicant”) with respect to the above referenced project (the “Project”). This letter is provided pursuant to Item Nos. 11 and 17 identified in the City’s General Planning Application Checklist (the “Checklist”). Part I below provides an overview of the Project. Part II is the Project’s Affordable Housing Plan as required in Item No. 11 of the Checklist. Part III is the Project’s Density Bonus Report as required in Item No. 17 of the Checklist.

I. Project Overview
The Project site is 0.34 gross acres in size and is in the Crossroads area of the Heart of the City Specific Plan. The zoning designation for the site is P(CG, Res), and the site has a General Plan designation of Commercial/Office/Residential. According to Figure LU-2 of the General Plan, the maximum density for the site is 25 dwelling units per acre. Thus, for purposes of the Density ANDREW L. FABER
SAMUEL L. FARB
JAMES P. CASHMAN
STEVEN J. CASAD
NANCY J. JOHNSON
JEROLD A. REITON
JONATHAN D. WOLF
KATHLEEN K. SIPLE
KEVIN F. KELLEY

MARK MAKIEWICZ

JOLIE HOUSTON
BRIAN L. SHETLER
HARRY A. LOPEZ
CHARLES W. VOLPE
CHRISTINE H. LONG
AARON M. VALENTI
CHRISTIAN E. PICONE
SUSAN E. BISHOP
SANDRA G. SEPÚLVEDA
MICHAEL B. IJAMS
KIMBERLY G. FLORES
DAWN C. SWEATT
TYLER A. SHEWEY
JAMES F. LANDRUM, JR.

MICHAEL J. CHENG
EILEEN P. KENNEDY

JOSHUA BORGER
BENJAMIN M. JOHNSON
STEPHEN C. SCORDELIS
C. DAVID SPENCE
ALESHIA M. WHITE

DENNIS CHIN
ALEXANDRIA N. NGUYEN
LEILA N. SOCKOLOV

ALAN LAW
TIMOTHY K. BOONE
BLAINE R. COX

ANGELA SHAW
DAVID A. BELLUMORI
NATHAN C. BRADY
BRANDON L. REBBOAH
LINDSAY I. WALCZAK

MAYSA SAEED
IRIS C. CHIU
MAKAYLA A. WHITNEY
JACE D. LYNCH
MARISA J. MARTINSON
CHEYENNE A. VANKIRK
MARIA I. PALOMARES
BENJAMIN H. WOHLFORD
KEVIN S. LANDIS
TIFFANY A. SCOGGIN
CHRISTIAN D. WICK
STACEY A. MACIAS
JENNIFER N. WISE
JULIA L. COVELLO

SAM ATABAY BIDGOLI
MATTHEW C. TOSCANO

ROBERT AVERSA-GOODMAN

JARED DOBBS
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Bonus Law (Government Code Section 65915, et seq.) (the “DBL”), the site has a base density of nine units.1
The Project proposes seven ownership units, which is less than the base density. One of these units (or 14%) is proposed as a median-income unit (the “BMR Unit”). Pursuant to the DBL, an applicant proposing to provide at least 10% of ownership units to moderate-income households is entitled to a density bonus.2 Here, the allowable bonus is 9%, so that the total allowable density with a density bonus is ten units.3 Although the Project does not propose this density, the Applicant is requesting waivers, one concession,4 and a parking reduction under the DBL, which he is allowed to do pursuant to Government Code Section 65915(f).

In addition to qualifying the Project for waivers, one concession, and a parking reduction, providing the BMR Unit satisfies the requirements of the City’s Below Market Rate Housing Procedures Manual (the “BMR Manual”). The project proposes six market-rate units, and so should be treated as a six-unit project for purposes of any housing mitigation.5 Section 4.2 of the
BMR Manual states that an applicant for a housing development project with six or fewer units either can pay an affordable housing fee or provide one inclusionary unit pursuant to Section 2.3 of the BMR Manual. That unit must be a median-income unit, pursuant to Section 2.3.1, which is what the BMR Unit is proposed to be.

For reference, the proposed BMR Unit would be Unit A-2 as shown on Sheet A3.0 of the Project’s plan set, submitted with this letter. The BMR Unit will be consistent in size with the other units in the Project, as shown from the following table:

Bedroom Count Size
Average Unit Size 3 bedrooms 2,074 Square Feet
BMR Unit 3 bedrooms 2,067 Square Feet
1 For purposes of determining the “base density” under Government Code Section 65915(o)(6), general plan density prevails over zoning. Also, per Section 65915(f), gross area is used instead of net area. See also http://www.hcd.ca.gov/community-development/housing-element/docs/sdiencinitas-nov-densitybonus03252021.pdf. Finally, under Section 65915(q), all density calculations must be rounded up to the nearest whole number. Applying these principles here, 0.34 x 25 = 8.5 ~ 9 units. 2 Gov. Code § 69515, subd. (b)(1)(D). 3 Again, base density is 9 units. 9 x 0.09 = .81 ~ 1. Nine base units plus one bonus unit equals 10 total units. See Gov. Code, § 65915, subds. (f)(4), (q).
4 The DBL uses the term “incentive or concession” rather than “concession,” but the term “incentive or concession” can be confusing since it suggests that “incentives” and “concessions” are separate things, even though analytically they constitute a single type of benefit available to developers of affordable housing. Therefore, this letter will use the term “concession” to refer to a “concession or incentive.” 5 See Gov. Code, § 65915.1 (“For purposes of Section 65915, affordable housing impact fees, including inclusionary zoning fees and in-lieu fees, shall not be imposed on a housing development’s affordable units.”).

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The Project is eligible for one concession, pursuant to Government Code Section 65915(d)(2)(A). The Project proposes a concession from the requirements of Cupertino Municipal Code §14.18.030, which prohibits removal of protected trees without a permit or doing anything that would “cause any protected tree to be irreversibly damaged or to die.” Here, the project site contains a tree that the City has designated as protected, specifically the existing Coast Live Oak (Quercus agrifolia), located along the easterly side of the Project site. Preserving this tree would require expensive changes to the Project that would affect density and would not guaranty the tree’s survival. An analysis in support of granting a concession from this requirement is set forth in Part III below. As explained in Part III, if a concession is denied, then in the alternative the Applicant requests a waiver since the Project changes necessary to preserve the tree would reduce Project density.6

As explained in further detail in Part III below, the Project proposes 14 covered parking spaces, consistent with Government Code Section 65915(p).7

Finally, the Project requires eight waivers, including the following:
• An exception to the 35-foot front yard setback pursuant to the Heart of the City Specific Plan (the “Plan”) at § 1.01.030.B.1. As shown on Sheet A1.0 of the plan set, the proposed front setback is approximately six feet for the length of the townhouses along Bianchi Way. If 35 feet were provided, these units would lose approximately half of their buildable area, requiring either a loss in density or significantly smaller units of a product type the Applicant is not proposing.8 • An exception to the minimum rear yard setback pursuant to Plan § 1.01.030.C.2 of half the building height, or 45 feet. The proposed rear yard setback is 12 feet.9 As shown in Figure 1 of Sheet A1.1 of the plan set, if this setback were enforced, portions of Units A-1, A-2, A-3, and A-4 would be lost, requiring either a loss in density or a significant project redesign. 6 The Applicant is aware that pursuant to Chapter 14.18 of the Municipal Code, as an alternative to a concession or waiver, the Planning Director has authority to grant permits to remove protected trees, including because, as relevant here, preserving the tree restricts the owner’s economic enjoyment of the property. (See Municipal Code §

14.18.180.A.2.) However, the Project is not feasible without certainty that the tree can be removed, the application process itself would be cost prohibitive, the Director’s authority is discretionary, the Director has the option under Municipal Code § 14.18.110.C to refer the decision to another approval authority, and staff has already indicated that they anticipate having a difficult time making the required findings under § 14.18.180 to grant a tree removal permit. As explained in Part III, the findings for a concession or waiver can be made under state law without the need to apply for tree removal permits. 7 If the City denies the Applicant’s request for a DBL parking reduction, then the Applicant hereby asserts his right to a parking exemption pursuant to Government Code Section 65863.2. According to Metropolitan Transit Commission Maps, there is a bus stop qualifying as major transit stop located at the intersection of De Anza and Stevens Creek, which is within one-half mile of the Project site. 8 In the Applicant’s original submittal, a separate waiver was requested to the special features requirement of Plan §

1.01.030.B.3, which limits the extent to which features like balconies may extend into required setbacks. The Project cannot comply with this requirement as a corollary of the fact that the Project cannot comply strictly with any of the setback requirements. In this submittal, the setback has been recharacterized from nine to six feet so that special features are not encroaching.
9 In the original submittal, this setback was characterized as 15 feet and encroaching balconies were treated as special features. The setback has been adjusted to avoid this. See Footnote 8.

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• An exception to the required 15-foot side yard setbacks pursuant to Plan §

1.01.030.C.1.10 The proposed setbacks are 10 feet. As shown in Figure 3 of Sheet A1.1 of the plan set, if this setback were enforced, portions of Units A-1, A-4, and B-3 would be lost, again requiring either a loss in density or a significant project redesign. • An exception to the building form requirements of Plan § 1.01.040.E.2, which includes requirements for terracing or stepbacks. As shown in Figures 4 and 5 of Sheet A1.1 of the plan set, significant portions of most of the proposed units would be lost at the upper floors if this requirement were enforced. As shown in Figures 2 and 3 of the same sheet, only Unit B-2 would be unaffected, and nearly all of Units A-3, A-4, and B-2 would be lost. • An exception to the common open space requirement in Plan § 1.01.040.C.2.a, which requires 150 square feet per unit of common open space outside of required setbacks. The Project does not propose any common open space because the site is constrained. To provide common open space outside of setbacks, the Project would lose either density or necessary vehicle circulation areas. See Figure 2 of Sheet A1.2, which illustrates these circumstances. • An exception to the landscaped greenspace requirement in Plan § 2.01.010.G1, which the Project cannot provide without meeting the open space requirement already addressed above. • An exception to the landscaped hardscape requirement in Plan § 2.01.010.G2, which again is contingent on providing common open space that the Project cannot provide. • An exception to the requirements of Plan § 1.01.040.A.2.d that service accesses be avoided near existing residential areas and that service accesses should be provided from rear parking areas. Here, all access is from Bianchi Way, and to provide service access from the rear of the Project site would require a complete redesign of the Project. As explained in Part III below, if a project is entitled to waivers under the DBL, then the local agency cannot require that the project be redesigned to be consistent with standards from which waivers are sought.

II. Checklist Item No. 11: Affordable Housing Plan
For Item No. 11, the Checklist requires the Applicant to explain how the Project is consistent with the various requirements of the BMR Manual. For this requirement, please note the following discussion:
• Chapter 1 (Introduction): Not applicable.
10 The requirement of § 1.01.030.C. is that the setback be half the height of the building with a ten-foot minimum.

In the City’s view, because the building is 30 feet in height, a 45-foot setback is required. In the Applicant’s view, the requirement should be construed as applying separately for each floor to allow a step-back. This is consistent with Plan § 1.01.040.E.2. Thus, the top floor must be setback 45 feet, but with the second story at 19 feet, a 28.5- foot setback would be required at that floor, etc. See Section B-B of Sheet A1.1 for an illustration. The Applicant is entitled to the benefit of this interpretation pursuant to Government Code Section 65582.5(f)(4), but the point is moot because the Project does not meet the setback requirement under either interpretation and is entitled to a waiver for reasons articulated in Part III.

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• Chapter 2 (Housing Mitigation Program):
o Section 2.1: The BMR Manual applies to the Project.
o Section 2.2: The Project proposes six market-rate units, so that pursuant to Section 4.2 of the BMR Manual and Government Code Section 65915.1 (which prohibits imposing housing fees on affordable units), the Applicant’s option is to pay an affordable housing fee for the six market-rate units or to provide an affordable unit. Of these choices, the Applicant has chosen to offer the BMR Unit. o Section 2.3.1: Because the Project proposes only one affordable unit, the unit must be a median-income unit. The BMR Unit is proposed as a median-income unit, so this requirement is satisfied.
o Section 2.3.2: Because the Project’s affordable housing obligation is limited to one unit, no payment or rounding is required for fractional units. o Section 2.3.3: The affordable housing plan for the Project is to offer Unit A-2 (see Sheet A3.0) as the BMR Unit, which will be a median-income unit. o Section 2.3.4: As indicated in Part I above, the BMR Unit will have the same number of bedrooms as the other units, and its unit size is less than ten square feet less than the average unit size. As such, the size of the BMR Unit will be generally comparable with the market-rate units. With only seven units in the project, dispersal is not an issue. The BMR Unit will be indistinguishable from the market-rate units from the exterior in terms of design and quality of finishes, and the Applicant acknowledges the requirement that the interior finishes be durable, good quality, and consistent with contemporary standards. o Section 2.3.5, 2.3.6, and 2.3.7: The Applicant acknowledges that the initial sale price of the BMR Unit will be determined by the City consistent with Section

2.3.5, that the term of affordability will be 99 years, and that the Applicant will be required to enter into an affordable housing agreement with the City as a condition of approval.
• Chapter 3 (Mitigation Requirements for Non-Residential Developments): Not applicable since the Project does not propose non-residential development. • Chapter 4 (Mitigation Requirements of Ownership Residential Developments): Again, Section 4.2 applies to the Project since it proposes six ownership market-rate units, and the Project will satisfy the requirements of this section by providing the BMR Unit. • Chapter 5 (Mitigation Requirements of Rental Residential Developments): Not applicable. The housing units in the development will be ownership units.

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• Chapter 6 (Mitigation Requirements for Mixed-Use Projects): Not applicable because the Project does not propose non-residential development.
• Chapter 7 (Alternatives to BMR Requirements): Not applicable. The Project does not propose any alternative to meeting the City’s BMR requirements. • Chapter 8 (City Incentives): The Project requests a density bonus, and the Applicant welcomes any additional incentives the City may be willing to provide.

III. Checklist Item No. 17: Density Bonus Report
As outlined in Part I above, the Project does not propose an increase in density, but it does propose one concession and eight waivers. It also proposes a parking reduction pursuant to Government Code Section 65915(p)(1)(B), which states a project qualifying for a density bonus is not required to provide more than 1.5 parking spaces per three-bedroom unit. Here, each of the seven units in the Project is a three-bedroom unit, so the Project’s parking obligation is only 11 spaces. The Project exceeds this requirement by providing 14 spaces, or two spaces per unit of covered garage parking.

Insofar as the City may impose any additional requirements relating to parking, the Project is exempt pursuant to Government Code Section 65915(p)(4). Alternatively, the Project is entitled to a waiver of any such requirement because, as shown in Figure 1 of Sheet A1.2, the Project site is constrained and has no additional room for parking without a loss of density or significant project redesign. As explained in Footnote 5 above, if the City denies all or any part of the Applicant’s request for reduction in parking standards, then the Applicant hereby claims a parking exemption pursuant to Government Code Section 65863.2.

The following discussion addresses Item Nos. 17.a to 17.d of the Checklist:

Item No. 17.a (location and square footage of units that qualify the project for a density bonus):

Unit A-2 (see Sheet A3.0) is hereby identified as the BMR Unit.

Item No. 17.b (location and square footage of the density bonus units): Nothing in Government Code Section 65915 requires applicants to identify or distinguish between base units and those units being granted pursuant to the density bonus. Moreover, the statutory scheme does not lend itself well to making such a distinction because it is the actual Project proposed that is under review and not a hypothetical project that does not qualify for a density bonus. The issue is moot, however, because the Project proposes fewer than the maximum allowable base units.

Item No. 17.c (justification of requested waiver): As indicated above, the Project proposes a concession from the restrictions of Municipal Code § 14.18.030, which prohibits removal of protected trees without a permit or doing anything that would “cause any protected tree to be irreversibly damaged or to die.”11 As indicated in the brief arborist memo attached to this letter, the Coast Live Oak located on the property is ill suited for the site and will require expensive 11 Here, it is anticipated that if the tree is not removed, it will die as a result of the proposed construction activities.

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changes to the Project to protect, which provide no guaranty of success. As shown on Sheet A1.3, implementation would also result in a loss of project square footage and would affect Units A-2, A-3, and A-4.

It is unknown at this time what the cost of improvements required to preserve the tree would be.

To determine that cost would itself be extremely expensive. What is known is that the loss of three units will cost the Applicant approximately $6 million in project revenues. Please see the attached memorandum from the Applicant’s architect.

A four-unit project is not feasible, especially if the Applicant provides the BMR Unit. It is anticipated that the BMR Unit will sell at or below the cost to construct it, so that accounting for lost profits and construction costs, the Applicant will be subsidizing its construction. The Applicant is not seeking a bonus in density for the Project. He merely seeks waivers, concessions, and parking reductions to provide a number of units he is otherwise entitled to construct on the site to make the Project feasible. These benefits will make the Project profitable despite the Applicant’s subsidy in providing the BMR Unit. But a loss of three units and their anticipated $6 million in revenue will deprive the Applicant of these benefits.

Unlike a waiver, which is an exception to a design rule, a concession may include an exception to any regulatory requirement a local agency may impose on housing development projects. See Government Code Section 65915(k), which defines a concession as a reduction in development standards, approval of a mixed-use project in a zoning district that typically does not allow for commercial uses, or any “[o]ther regulatory incentives or concessions proposed by the developer or the city, county, or city and county that result in identifiable and actual cost reductions to provide for affordable housing costs.” Thus, the touchstone of a regulatory standard that qualifies for an exception as an exemption is demonstration of a cost savings. Here, the Applicant has demonstrated that the proposed concession would have a cost savings by preserving $6 million in revenue plus any costs necessary to build infrastructure that would protect the tree during construction.

To deny the request for a concession, the City has the burden pursuant to Government Code Section 65915(d)(1) to demonstrate that the concession would not have an identifiable cost savings, that granting the concession would have a specific adverse impact on health or safety or on a historic resource, or that granting the concession would violate state law. The Applicant has identified a cost savings from not preserving the tree, and the Applicant knows of no basis to make the other two findings in the statute, which the City has the burden to prove in any event.

Even if the City were to deny the requested concession, because preserving the tree would result in a loss of square footage so that the Project could not be built out to its allowable density, in the alternative to a concession the City must grant a waiver. The analysis for granting waivers follows in the next section below.

Item No. 17.d (justification of requested waivers): Government Code Section 65915(e) states that the local agency shall waive any applicable development standard that would have the effect of physically precluding the Project unless the City finds that the waiver would violate state or CC 01-17-2024
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federal law or would have a significant and unmitigable impact on public health or safety, as defined in Government Code Section 65589.5(d)(2).

The standard for reviewing waiver requests is described in Bankers Hill 150 v. City of San Diego (2022) 74 Cal.App.5th 755 (“Bankers Hill”). In Bankers Hill, the applicant for a housing development project that was approved by the City of San Diego sought various concessions and waivers for a project that qualified for a density bonus. Neighborhood groups challenged the approval, including on the ground that a height waiver for the project should have been denied because the project could have been redesigned with a smaller courtyard to avoid the need for the waiver.

The court rejected the idea that the city could require a project-redesign to avoid the necessity of a waiver. According to the court, the city lacked discretion to deny the waiver because once the applicant “established its eligibility for the density bonus …, it was entitled to a waiver of any development standards that would preclude construction” of the proposed project unless the city could make findings of a specific, adverse impact on public health or safety, or unless granting the waiver would violate state or federal law.12 Citing earlier caselaw, the court explained that:
“Standards may be waived that physically preclude construction of a housing development meeting the requirements for a density bonus, period. [Citation.] The statute does not say that what must be precluded is a project with no amenities, or that amenities may not be the reason a waiver is needed.”13
Stated differently, the applicant’s burden to justify a waiver is to show that under Government Code Section 65915, the project qualifies for the density proposed, and that the project cannot be constructed as proposed unless a waiver is granted. If the applicant meets this burden, the burden shifts to the local agency to identify a significant, adverse impact on public health or safety or a violation of state or federal law. The applicant is not required to consider or propose alternative projects that attempt to achieve the same density without the waivers sought.

As described above in Part I, the Project requires eight waivers from standards that would physically preclude construction of the Project as proposed. For each standard, all or some portion of one or more units or their amenities would have to be eliminated to comply with the requirement. This would require a redesign of the Project that in turn would require either a reduction of density, smaller unit sizes than are feasible for the proposed product type, and/or a loss of private open space or other amenities. In that regard, each such standard would physically preclude the Project as proposed, so that the Project is entitled to be granted waivers from those standards unless the City makes the findings for denial articulated above. The Applicant is unaware of any circumstance that would justify findings for denial.

For the foregoing reasons, the Project complies with the requirements of the City’s BMR 12 Bankers Hill, p. 774. 13 Id. at p. 775.

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Manual, and it qualifies for waivers and a parking reduction pursuant to the DBL. Please let me know if I can assist you further in understanding the Project.

Very truly yours,

BERLINER COHEN, LLP

JOLIE HOUSTON
E-Mail: [email protected]
JH:jl
Attachments
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8/7/23, 4:26 AM Gmail - Leon Townhomes - Oak Tree
https://mail.google.com/mail/u/0/?ik=776f50930d&view=pt&search=all&permthid=thread-f:1772316255398648928&simpl=msg-f:17723162553986489… 1/2 Mike Wilson <[email protected]>
Leon Townhomes - Oak Tree
2 messages
W Jeffrey Heid <[email protected]> Mon, Jul 24, 2023 at 8:28 AM To: Mike Wilson <[email protected]>
Cc: Larry Wang <[email protected]>, Kuan Chang <[email protected]>, hu leon <[email protected]>, Elizabeth Lanham <[email protected]>, Chris Wood <[email protected]>
Mike,
This memo is in reference to the existing Coast Live Oak (Quercus agrifolia), located along the easterly side of this property and project. Much has been discussed regarding the location, health, affect on proposed construction, etc. and below are my observations and personal comments:
1) Most likely a volunteer, thus it was not originally selected and planned for that location with future development in mind.
2) Most likely not well maintained over time. One aspect of this being that the base of the tree has been buried.
3) Not typically a good urban tree based on its characteristics (size, mess with flowers, pollen and acorns).
4) Is a sensitive tree and can be compromised by poor pruning (both root and canopy) with the potential for disease.
5) There are proposed grade changes to accommodate necessary drainage for the project which has the potential for damage to the root system. .
6) Based on the proximity of the proposed structure and exterior site improvement, I anticipate extensive and expensive efforts will be necessary to work with the tree with no guarantee of success. 8) The tree does provides scale, shade, wildlife habitat, and beauty. 9) While not immediately achieved, these same qualities can be replaced through the appropriate selection and placement of new trees.
10) In determining an appropriate tree replacement program for this tree, as well as other qualifying trees to be removed, care shall also be taken in determining the size of the proposed tree and container.

A large tree and root ball can be challenging to locate effectively without the potential for damage to new construction as well as to the tree itself. While a larger tree may be considered desirable, planting one with a smaller root mass will not only be easier, but will also acclimate itself to its new home faster.

Let me know if you have any questions or comments to add.

Regards,
Jeff
--
W. Jeffrey Heid

LANDSCAPE ARCHITECT
1465 Winzer Place
Gilroy, Ca. 95020
(408) 691-5207
www.wjeffreyheidlandscapearchitect.com
Mike Wilson <[email protected]> Mon, Jul 24, 2023 at 8:30 AM To: W Jeffrey Heid <[email protected]>
Cc: Larry Wang <[email protected]>, Kuan Chang <[email protected]>, hu leon <[email protected]>, Elizabeth Lanham <[email protected]>, Chris Wood CC 01-17-2024
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Tectonic Builders Corp.

Tectonic Architects and Associates
10118 Bandley Dr. #E, Cupertino, CA 95014
Tel: 408-216-0804
- 1 -
August 11, 2023
Dear Danielle,
Due to the location of the Live Oak Tree outlined on A 1.3 if it was to remain in place would have significant cost impacts to the development. A 1.3 shows there are (3) units affected by the critical root zones and the preservation of said zones. The structural infrastructure needed to complete this area of work including the backfill of 2ft of soil will cause this tree to stress and not survive. The arborists report provided states the removal is necessary.

The estimated cost implications to redesign this project losing (3) units will be 6 Million (2 Million for each unit).

In addition, the cost to redesign the infrastructure's utilities and structural components around the tree root zone would be upwards of 1 Million dollars.

Sincerely,
Tina Chang
Accounting Assistant
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Planning Commission
Meeting
December 12, 2023
Written Communications
Item #2
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To the City of Cupertino and to who it may concern,
We the people of Bianchi Way, Cupertino, object to having a three-story-building on our own street.

The density of the buildings is too great, and there is not enough street parking as it is now - even with expanding the street width, there will not be enough parking. Along with increased density comes increased conflicts.

This building will look down on others' bedrooms across the way which may violate people's privacy.

We already have a higher-than-normal traffic pattern on our little cul-de-sac, which would only get worse with this new building and will cause a lot of issues for those disabled residents who use the road.

Cupertino residents have already voted that there be a two-story limit on the height of buildings in Cupertino. We will hold the city of Cupertino liable for any damages, injuries, or deaths due to this higher density housing and higher-than-necessary traffic on this small dul-de-sac. We also will hold the property owner and any management company liable for any deaths injuries or damages.

Please reconsider this project - lowering the numbers units or the density or the height.

Thank you for your time,
Residents of Cupertino
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1 Danielle Condit
From: Jon De Ridder
Sent: Wednesday, December 13, 2023 8:13 AM
To: Danielle Condit
Cc: Piu Ghosh (she/her); Luke Connolly
Subject: FW: 2023-12-12 PC Mtg-Agenda Item 2-Bianchi Way project-IDEAS Hi Danielle,
Here is a wriƩen communicaƟon we received aŌer last night’s 12/12/23 PC meeƟng concerning your item.

Jon
To help protect your priv acy, Microsoft Office prevented automatic download of this picture from the Internet.

Jon De Ridder
Administrative Assistant
Community Development
[email protected]
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From: Peggy Griffin <[email protected]>
Sent: Tuesday, December 12, 2023 9:51 PM
To: City of Cupertino Planning Commission <[email protected]>; Piu Ghosh (she/her) <[email protected]>; Luke Connolly <[email protected]>; Chad Mosley <[email protected]> Cc: City Clerk <[email protected]>
Subject: 2023‐12‐12 PC Mtg‐Agenda Item 2‐Bianchi Way project‐IDEAS CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Hi Planning Department and Planning Commission,
I aƩended and listened to Item #2 tonight regarding the Bianchi Way project and the struggles related to the disabled housing nearby.  I am familiar with the disabled housing project and some of the struggles the residents endure.  It took a lot for a person in a wheelchair to appear before you tonight! I don’t know what flexibility or influence you have BUT maybe ‐ Widen the sidewalk – make it double the normal size all along Bianchi Way. ‐ PrioriƟze fixing the enƟre stretch of sidewalk on Bianchi Way over and above other sidewalk projects so the disabled are not forced to go on the street.
‐ Help the residents of the disabled housing project to request/obtain parking permits for all 6 street parking spaces or 4 of the 6 spaces.  If they are forced to park elsewhere, it would be an enormous problem for people in wheelchairs.  Much more so than a normal person, especially in that area of high traffic and no street parking.

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2 Please step in now and help them.  This is the ONLY disabled housing in CuperƟno!  They rely on being able to access Stevens Creek Blvd safely.  (Seems to me like the health and safety of these special residents should have been considered a CEQA issue.)
Sincerely,
Peggy Griffin
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Leon Townhomes Development
CEQA Exemption
City of Cupertino
Prepared for:

City of Cupertino
Contact: Danielle Condit, Associate Planner
City of Cupertino | Planning Division
10300 Torre Avenue | Cupertino, CA 95014
(408) 777-3214
[email protected]
Prepared by:

PlaceWorks
Contact: Jacqueline Protsman Rohr, Associate II
2040 Bancroft, Suite 400
Berkeley, California 94704
(510) 848-3815
[email protected]
www.placeworks.com
June 2023
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June 2023 Page 1
Section Page

1. INTRODUCTION ................................................................................................................................................ 3

1.1 CATEGORICAL EXEMPTION...................................................................................................................3

2. PROJECT DESCRIPTION ..................................................................................................................................... 5

2.1 REGIONAL LOCATION............................................................................................................................5

2.2 PROJECT SITE ........................................................................................................................................5

2.3 LAND USE AND ZONING DESIGNATIONS............................................................................................10

2.4 GENERAL PLAN EIR.............................................................................................................................11

2.5 PROPOSED PROJECT ...........................................................................................................................12

3. EXEMPTION ................................................................................................................................................... 21

3.1 SECTION 15332(A): GENERAL PLAN AND ZONING CONSISTENCY .....................................................21

3.2 SECTION 15332(B): PROJECT LOCATION, SIZE, AND CONTEXT...........................................................22

3.3 SECTION 15332(C): ENDANGERED, RARE, OR THREATENED SPECIES................................................22

3.4 SECTION 15332(D): TRAFFIC, NOISE, AIR QUALITY, OR WATER QUALITY...........................................26

3.5 SECTION 15332(E): UTILITIES AND PUBLIC SERVICES.........................................................................46

4. EXCEPTIONS ................................................................................................................................................... 51

4.1 SECTION 15300.2(A): LOCATION ........................................................................................................51

4.2 SECTION 15300.2(B): CUMULATIVE IMPACT......................................................................................51

4.3 SECTION 15300.2(C): SIGNIFICANT EFFECT........................................................................................52

4.4 SECTION 15300.2(D): SCENIC HIGHWAYS...........................................................................................52

4.5 SECTION 15300.2(E): HAZARDOUS WASTE SITES...............................................................................52

4.6 SECTION 15300.2(F): HISTORICAL RESOURCES ..................................................................................53

4.7 CONCLUSION ......................................................................................................................................55

5. LIST OF PREPARERS ........................................................................................................................................ 57 CITY OF CUPERTINO ..........................................................................................................................................57 PLACEWORKS ....................................................................................................................................................57 CC 01-17-2024
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LEON TOWNHOMES DEVELOPMENT CEQA EXEMPTION

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Table of Contents

Figures
Figure 2-1 Regional and Vicinity Map....................................................................................................................6 Figure 2-2 Aerial View of Project Site and Surroundings.......................................................................................7 Figure 2-3 Proposed Site Plan..............................................................................................................................15 Figure 2-4 Proposed Landscape Plan...................................................................................................................16 Figure 2-5 Utility Plan ..........................................................................................................................................17 Figure 2-6 Stormwater Management Plan..........................................................................................................18 Tables
Table 2-1 Reasonably Foreseeable Development Projects in Cupertino ............................................................11 Table 3-1 Project Construction Noise Levels by Activity Phase ..........................................................................31 Table 3-2 Project Construction Noise Levels by Equipment ...............................................................................31 Table 3-4 Cupertino Climate Action Plan Consistency Matrix............................................................................40

SOURCES
All documents cited in this report and used in its preparation are hereby incorporated by reference into this document. Copies of documents referenced herein are available for review at the City of Cupertino Community Development Department at 10300 Torre Avenue, Cupertino, California 95014.

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June 2023 Page 3

1. Introduction
This section describes the standards for determining a significant effect on the environment from construction and operation of the proposed Leon Townhomes project (proposed project) pursuant to the requirements of the California Environmental Quality Act (CEQA). Additionally, this section introduces the City of Cupertino Standard Environmental Protection Requirements that apply to all projects in Cupertino.

1.1 CATEGORICAL EXEMPTION
Article 19 (Categorical Exemptions) of the California Environmental Quality Act (CEQA) Guidelines includes, as required by CEQA Section 21084 (List of Exempt Classes of Projects; Projects Damaging Scenic Resources), a list of classes of projects that have been determined not to have a significant effect on the environment and, as a result, are exempt from review under CEQA. This document has been prepared to demonstrate CEQA compliance as it pertains to the redevelopment of the existing four-unit residential development on the project site into the proposed seven-unit development, herein referred to as the proposed project. This document also provides information to decision makers regarding a finding that the proposed project is exempt under CEQA.

This document describes how the proposed project qualifies for a Class 32 CEQA Exemption pursuant to CEQA Guideline Sections 15332 (Infill Development Projects), which requires that:
(a) The proposed project is consistent with the applicable General Plan designation and all applicable General Plan policies, as well as the applicable Zoning designations and regulations; (b) The proposed project would occur within the city limits on a site of less than five acres in size that is substantially surrounded by urban uses;
(c) The project site has no value for endangered, rare or threatened species; (d) The proposed project would not result in any significant effects related to traffic, noise, air quality or water quality; and
(e) The project site can be adequately served by all required utilities and public services.

In addition, this document demonstrates that none of the exceptions to categorical exemptions apply pursuant to CEQA Guidelines Section 15300.2 (Exceptions), which are based on the following:
(a) The project is not located within a sensitive environment; (b) There would be no cumulative impacts;
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LEON TOWNHOMES DEVELOPMENT CEQA EXEMPTION

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1. Introduction

(d) There would be no impacts to a scenic highway;
(e) The project site is not located on a hazardous waste site; and (f) There would be no impacts to historical resources.

1.2 STANDARD ENVIRONMENTAL PROTECTION REQUIREMENTS
In addition to the environmental topics identified in Section 1.1, all projects in Cupertino are required to comply with the Cupertino Municipal Code (CMC) Chapter 17.04, Standard Environmental Protection Requirements. Pursuant to CMC Section 17.04.030(A), the requirements apply to every project within the city. Pursuant to CMC Section 17.04.030(B)(1), because the residential project has more than four units, compliance shall be demonstrated through submittal and implementation of a construction management plan and/or permit plans, as applicable, prior to issuance of an approval to the satisfaction of the City.

Development projects must submit technical reports for air quality, hazardous materials, vehicle-miles traveled (VMT), and construction vibrations. This section also includes nine distinct permit submittal requirements for each topic area, including the following:

1. Air Quality

2. Hazardous Materials

3. Greenhouse Gas Emissions and Energy

4. Biologic Resources

5. Cultural Resources

6. Hydrology and Water Quality

7. Noise and Vibration

8. Paleontological Resources

9. Utilities and Service Systems
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June 2023 Page 5

2. Project Description

2.1 REGIONAL LOCATION
The project site is in the city of Cupertino, approximately 38 miles southwest of San Francisco. Cupertino is on the western edge of Santa Clara County and west of the city of San Jose, south of the city of Sunnyvale, and north of the city of Los Gatos. Regional access to the project site is provided by Interstate 280 (I-280) via De Anza Boulevard to the north, and by Highway 85 via Stevens Creek Boulevard to the west. See Figure 2-1, Regional and Vicinity Map.

2.2 PROJECT SITE

2.2.1 Location
The approximately 0.3-acre project site is at 10046 Bianchi Way1 in the central region of the city near the intersection of Stevens Creek Boulevard and Bianchi Way. The project site is within a Santa Clara Valley Transportation Authority (VTA) City Cores, Corridors, and Station Areas Priority Development Area (PDA)2 and within a Transit Priority Area (TPA).
3 As shown on Figure 2-2, Aerial View of Project Site and Surroundings, the project site is in a built-up and urbanized area in the vicinity of the commercial uses across Stevens Creek Boulevard to the north, institutional (church) and commercial uses across the surface parking lot to the east, multifamily residences and institutional uses (William Faria Elementary School) to the south, and restaurants and multifamily residences across Bianchi Way to the west. The project site is bounded by a medical use building (chiropractor) to the north, surface parking lot to the east, carports associated with the apartments to the south, and Bianchi Way to the east. 1 Addresses for the project site also include 10040 Bianchi Way, 10042 Bianchi Way, and 10044 Bianchi Way, but for the purposes of this document, a single address (10046 Bianchi Way) is used to represent the entire project site. 2 Association of Bay Area Governments and Metropolitan Transportation Commission, 2020. Priority Development Areas (Plan Bay Area 2050), https://opendata.mtc.ca.gov/datasets/priority-development-areas-plan-bay-area-2050, accessed June 20, 2022. 3 Association of Bay Area Governments and Metropolitan Transportation Commission, 2021. Transit Priority Areas (2021), https://www.arcgis.com/apps/mapviewer/index.html?layers=370de9dc4d65402d992a769bf6ac8ef5, accessed June 20, 2022.

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Figure 2-2
Aerial View of Project Site and Surroundings
Source: © Google Earth, 2023. (6-14-2023)
Project Site Boundary
Stevens Creek Boulevard
Institutional (School)
Institutional
(Church)
Commercial
Commercial
Medical
S Stelling Road N Stelling Road
Bianchi Way
Campus Drive
0 Scale (Feet)
200

PROJECT DESCRIPTION

LEON TOWNHOMES DEVELOPMENT CEQA EXEMPTION

CITY OF CUPERTINO

PLACEWORKS
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2. Project Description

Sensitive receptors include places with people that have an increased sensitivity to air pollution, noise, or environmental contaminants. These sites can include schools, parks and playgrounds, day care centers, hotels, senior housing, nursing homes, hospitals, and residential dwelling units. Sensitive receptors within

0.25 miles (1,320 feet)4 of the project site include the following:
 Medical building (chiropractor) that shares a property line with the project site to the north;  Church building approximately 0.02 miles (115 feet) across the surface parking lot to the east;  Residential multifamily units roughly 0.01 miles (70 feet) and a school facility (William Faria Elementary School) roughly 0.5 miles (275 feet) to the south; and  Residential duplex units approximately 0.01 miles (60 feet) to the southwest.

2.2.2 Existing Site Conditions
As shown on Figure 2-2, the project site is currently developed with two single-story, single-family attached (duplex) residential buildings with a combined total of four residential units. The project site currently includes driveways and garages associated with the residential units, and ornamental landscaping along the edges of the project site and in the courtyard of the residential units.

The project site is relatively flat with an elevation of around 268 feet above mean sea level.5 The surficial geology consists of late Pleistocene older surficial sediments, which is described as older alluvial terrace gravel, sand, and clay, undeformed.6 No paleontological resources have been identified on the project site; however, the presence of Pleistocene deposits that are known to contain fossils indicates that the overall city, including the project site, could contain paleontological resources.7 Unique geological features are not common in Cupertino. The geologic processes are generally the same as those in other parts of the state, country, and even the world. The geology and soils on the project site are common throughout the city and region and are not considered to be unique.

The Phase I Environmental Site Assessment (ESA) was prepared by ACC Environmental Consultants in August 2020 for the proposed project and peer reviewed by PlaceWorks. The Phase I ESA did not reveal evidence of Recognized Environmental Conditions at the project site. According to the Phase I ESA, the project site 4 This distance is consistent with CEQA Guidelines topic Hazards and Hazardous Materials, which asks “Would the project emit hazardous emissions or handle hazardous materials, substances or waste within 0.25 miles of an existing or proposed school?” 5 ACC Environmental Consultants, August 13, 2020. Phase I Environmental Site Assessment Report, 20940 Stevens Creek Boulevard and 10040 & 10046 Bianchi Way, Cupertino, CA 95014. 6 United States Geological Survey and Association of American State Geologists, modified May 2022. Geologic map of the Cupertino and San Jose West quadrangles, Santa Clara and Santa Cruz Counties, California, https://ngmdb.usgs.gov/Prodesc/proddesc_83442.htm, accessed June 16, 2022. 7 City of Cupertino, certified General Plan Amendment, Housing Element Update, and Associated Rezoning EIR, (December 2014) State Clearinghouse Number 2014032007 (October 2015), and approved Addenda (October 2015, July 2019, August 2019, and December 2019).

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2. Project Description
June 2023 Page 9
was used for agriculture uses until at least 1956, when the project site was developed with the existing two residential buildings.8 The Phase I ESA also identifies that due to the age of the existing buildings (1956), they may contain asbestos-containing materials (ACM) and lead-based paint (LBP), which have been regulated in construction since the early 1970s. According to the Department of Toxic Substance Control, where a project site has been historically used for agricultural purposes after 1950, there is the potential of concentrations of remnant residual agricultural chemicals in the soil.9 As described in the Phase I ESA, during previous site development, activities and near-surface soils were likely mixed with fill material or disturbed during grading, further reducing the potential for exposure to residual agricultural chemicals, if any. Pursuant to CMC Section 17.04.040(B)(3), the recommendations of the Phase I ESA to conduct testing for these pesticides, ACMs, and LBPs would be required prior to issuance of permits. The removal of these types of hazardous materials would be conducted by contractors licensed to remove and handle these materials and in accordance with existing federal, State, and local regulations, including the United States Environmental Protection Agency’s National Emission Standards for Hazardous Air Pollutants (Code of Federal Regulations Part 61), Bay Area Air Quality Management District’s Regulation 11, Title 8 of the California Code of Regulations, the Unified Program, and the City’s General Plan Health and Safety Element Policy HS-6.1, and would ensure that risks associated with demolition and the transport, storage, use, and disposal of such materials would be reduced to the maximum extent practical.

Because the building on the project site was developed in 1956, it has the potential to be considered a historic building. However, it is not currently listed on the National Register of Historic Places10 or the list of California Historical resources,11 nor is it associated with significant cultural events, persons in California’s past, and it does not have any distinctive historical characteristics, and as such does not have any qualifying historical value.

According to the Vegetation Map shown in the Environmental Resources and Sustainability Element of the General Plan, the project site is within the urban forest (i.e., trees in the city).12 The City recognizes that every tree on both public and private property is an important part of Cupertino’s urban forest and 8 ACC Environmental Consultants, August 13, 2020. Phase I Environmental Site Assessment Report, 20940 Stevens Creek Boulevard and 10040 & 10046 Bianchi Way, Cupertino, CA 95014. 9 California Department of Toxic Substances Control California Environmental Protection Agency, Interim Guidance for Sampling Agricultural Properties, page 3, August 7, 2008.
10 National Park Service, 2022. National Register of Historic Places, https://www.nps.gov/subjects/nationalregister/databaseresearch.htm, accessed June 16, 2022. 11 California Office of Historic Preservation, 2022. California Historical Resources, https://ohp.parks.ca.gov/ListedResources/?view=county&criteria=43, accessed on June 16, 2022. 12 City of Cupertino, amended March 2020. General Plan (Community Vision 2015-2040), Chapter 6, Environmental Resources and Sustainability Element, Figure ES-1, Vegetation, https://www.cupertino.org/our-city/departments/communitydevelopment/planning/general-plan/general-plan, accessed June 16, 2022.

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2. Project Description
contributes significant economic, environmental, and aesthetic benefits to the community. 13 Landscaping
on-site includes five ornamental bushes and ten trees of 15.5 to 38.5 inches diameter at breast height (dbh). Three trees have been removed prior to this application. The remaining seven trees would be removed: an 16-inch Blue Atlas Cedar, an 29.5 inch Black Walnut, an 19-inch Italian Cypress, a 15.5- inch Hollywood Juniper, a 16.5-inch Glossy Privet, 19-inch Common Fig and a 38.5-inch Coast Live Oak.

All ten trees on-site are considered protected development trees pursuant to the City of Cupertino Protected Trees Ordinance, CMC Chapter 14.18, and would require a tree removal permit prior to removal.

The project site is in a Local Responsibility Area (LRA) and is not within a Fire Hazard Severity Zone, as designated by the California Department of Forestry and Fire Protection (CAL FIRE). It is 1.7 miles northeast of a Very High Fire Hazard Severity Zone in an LRA, and 2 miles east of lands that CAL FIRE designates as a Very High Fire Hazard Severity Zone in a State Responsibility Area (SRA).14 The project site is 1.2 miles northeast of a wildland-urban interface (WUI), which is an area of transition between wildland (unoccupied land) and land with human development (occupied land).15

2.3 LAND USE AND ZONING DESIGNATIONS
The project site is assigned Assessor’s Parcel Number (APN) 359-07-021. The proposed project is within the Heart of the City Special Area with a Commercial/Office/Residential General Plan land use designation, and the Planned Development with General Commercial with Residential (P(CG,RES)) zoning district. While the Commercial/Office/Residential land use designation allows primarily commercial and office uses and secondarily residential uses or a compatible combination of the two uses, it does not prohibit only commercial or only residential.16 The General Plan allows for a maximum building height of 45 feet on the project site. Existing regulations in the Heart of the City Special Area allow up to 25 dwelling units per acre.

As described in CMC Section 19.80.010, Purpose, the planned development zoning district is intended to provide a means of guiding land development or redevelopment of the city that is uniquely suited for planned coordination of land uses. Development in this zoning district provides for a greater flexibility of land use intensity and design because of accessibility, ownership patterns, topographical considerations, and community design objectives. This zoning district is intended to accomplish the following:
13 City of Cupertino, 2022. Tree Protection & Tree Removal, https://www.cupertino.org/our-city/departments/communitydevelopment/planning/residential-development/tree-protection-tree-removal, accessed June 16, 2022. 14 California Department of Forestry and Fire Protection, November 2007. FHSZ Viewer, https://egis.fire.ca.gov/FHSZ/, accessed on June 16, 2022.
15 California Department of Forestry and Fire Protection, updated August 2020. Wildland-Urban Interface Fire Threat, http://www.arcgis.com/home/item.html?id=d45bf08448354073a26675776f2d09cb, accessed June 16, 2022. 16 City of Cupertino, amended March 2020. General Plan (Community Vision 2015-2040), Appendix A, Land Use Definitions, https://www.cupertino.org/our-city/departments/community-development/planning/general-plan/general-plan, accessed June 20, 2022.

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 Encourage variety in the development pattern of the community.  Promote a more desirable living environment.
 Encourage creative approaches in land development.
 Provide a means of reducing the improvements required in development through better design and land planning.
 Conserve natural features.
 Facilitate a more aesthetic and efficient use of open spaces.  Encourage the creation of public or private common open space.

All planned development districts are identified on the zoning map with the letter code "P" followed by a specific reference to the general type of use allowed in the particular planning development zoning district.

The general type of use allowed on the project site is General Commercial with Residential (P(CG,RES)), which allows for residences, and is the use currently on the project site.

2.4 GENERAL PLAN ENVIRONMENTAL IMPACT REPORT
The Cupertino City Council certified the General Plan Amendment, Housing Element Update, and associated Rezoning Project Environmental Impact Report (EIR) in December 2014 and then had subsequent addenda that were approved by the City Council in October 2015, July 2019, August 2019, December 2019, and October 2021, together hereinafter “General Plan EIR.”17 As shown in Table 2-1, Reasonably Foreseeable Development Projects in Cupertino (Net New), the proposed project is within the buildout projected and evaluated in the General Plan EIR.

TABLE 2-1 REASONABLY FORESEEABLE DEVELOPMENT PROJECTS IN CUPERTINO (NET NEW) Hotel
(units)
Residential
(units)
Commercial
(square feet)
Office
(square feet)
General Plan EIR: Maximum Development Potential 1,339 4,421 1,343,679 4,040,231 Reasonably Foreseeable Projects
The Hamptons Redevelopment a 600
The Forum a 23
The Village Hotel a 185
De Anza Hotel a 155
Westport a, d 267
Public Storage a, d 209,485
Scandinavian Design a 2,235
17 City of Cupertino, certified General Plan Amendment, Housing Element Update, and Associated Rezoning EIR (December 2014), State Clearinghouse Number 2014032007, and approved Addenda (October 2015, July 2019, August 2019, December 2019, October 2021).

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Vallco a ,c, d 2,402 1,810,000
Loc-N-Stor a 96,432
Canyon Crossings a, d 18
22690 Stevens Creek Boulevard a 9
19191 Vallco Parkway a, d 2,300 280,000
1655 South De Anza Boulevard b, d 34
Marina Plaza a, d 206
Total Foreseeable Development 340 3,559 310,632 2,090,000 General Plan EIR: Remaining Development Potential 999 862 1,033,047 1,950.231 Notes:
a. The project has been approved or is under construction. b. The project is under review.
c. The buildout numbers are for the Vallco SB 35 Application (0 hotel rooms, 2,402 units, 1,810,000 square feet commercial, and 400,000 square feet commercial).
d. These sites currently have existing commercial and/or office development and the square footage shown in this table is the net new. Where the cell is blank, the future project’s commercial and/or office space is less than existing conditions.

Source: City of Cupertino, 2023.

2.5 PROPOSED PROJECT
The project applicant, Leon Hu with Top Mission Realty & Investment, Inc., is proposing the Leon Townhomes development project (previously referred to as the Bianchi Way Townhomes) that would involve the construction of a seven-unit townhome on a site that is currently developed. The proposed project would result in the demolition of the existing four residential units, and the construction of seven townhomes. The following provides a detailed description of the proposed project as shown on the conceptual site plans dated April 2023.

2.5.1 Townhomes
The proposed townhomes would include six market-rate units and one below-market-rate unit for a total of seven townhomes. The proposed townhome units would include three bedrooms and three and a half bathrooms that would range from 2,067 to 2,089 square feet. Each townhome would be three stories (30 feet) tall. The proposed project would provide 947 square feet of private open space. The proposed project includes density bonus waivers from development standards for setbacks, common open space and service access; a parking reduction for less on-site parking than is required by the CMC, resulting in a total of 14 indoor garage parking spaces. The site plan is included in Figure 2-3, Proposed Site Plan.

2.5.2 Landscaping
Figure 2-4, Proposed Landscape Plan, illustrates the proposed landscaping plan at ground level. Low-water use groundcovers, shrubs, and trees would be planted throughout the site. Gazania, Teucrium, Juncus, Trachelosperum, Anigozanthos, Chondropetalum, Carex, Salvia, Lomandra, Dietes, Prunus, Pittosorum, Photinia and Phormium genera. The trees to be planted on-site would be of the Parkinsonia Aculeata, Quercus Douqlasll, and Cornus Nuttalli. Landscaping area for both hardscape (impervious) and green area (pervious) would be 2,103 and 2,667 square feet, respectively.

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2.5.3 Access and Circulation

2.5.3.1 VEHICULAR ACCESS
As shown on Figure 2-3, the proposed project would have two-lane entrance/exit circulation pattern with the access point on Bianchi Way. The proposed emergency access route would be the same as the proposed vehicle access routes. The project site is within a TPA because it is within 0.25 miles of the De Anza College major transit stop,18 which provides stops with a bus frequency of service interval of 15 minutes or less during the morning and evening peak commute periods along VTA bus routes 23, 25, 51, 51H, and 55.

2.5.3.2 PEDESTRIAN AND BICYCLE ACCESS
Pedestrian access to the building would be available from one access point along Bianchi Way. The proposed project provides interior pedestrian circulation throughout the site. While the proposed project does not propose any new bicycle lanes or routes, the site is accessible via the existing Enhanced Bike Lanes on Stevens Creek Boulevard and South Stelling Road.19

2.5.4 Utilities and Public Services Providers
The proposed utility infrastructure would connect to the existing water, sewer, storm drain system, and electricity network in the area, and would be served by an existing solid waste landfill.

2.5.4.1 WATER SUPPLY AND CONSERVATION
The project site is within the Cupertino Water Service (CWS) area, leased to San José Water (SJW). Water service to the project site would be provided by the existing water line on Bianchi Way via a 5/8-inch pipe, as shown in Figure 2-5, Utility Plan. No new connections would be needed and are not proposed as part of the project.

The project incorporates a number of features meant to conserve water. The proposed landscaping would include native and/or adaptive, and drought-resistant plants of similar water use grouped by hydrozones.

The majority of plantings would be drought-tolerant grasses,shrubs, and trees that once established, would be adapted to a dry summer and intermittent rain in the winter season. All landscape zones would be irrigated as required by the Cupertino Landscape Ordinance, and water uses would be tailored to meet 18 Public Resources Code, Section 21064.3, states that a ‘major transit stop’ is a site containing an existing rail transit station, a ferry terminal served by either a bus or rail transit service, or the intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods. 19 City of Cupertino, June 2016. 2016 Bicycle Transportation Plan, https://www.cupertino.org/home/showpublisheddocument/3479/636443578340030000, accessed June 17, 2022.

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CALGreen Building Standards, which requires water conservation and requires new buildings to reduce water consumption by 20 percent.

2.5.4.2 SANITARY SEWER SERVICE
The project site is within the Cupertino Sanitary District (CSD) service area and wastewater would be treated at the San Jose/Santa Clara Water Pollution Control Plant (SJ/SCWPCP). Wastewater generated at the project site would be collected by the existing eight-inch sanitary sewer main on Bianchi Way.

2.5.4.3 STORMWATER MANAGEMENT
The proposed project would result in 10,927 square feet of impervious surfaces coverage and 3,192 square feet of landscape permeable pavement and bioretention features. Compared to approximately 5,709 square feet of impervious surfaces coverage in existing conditions, this would be an increase of 5,218 square feet of impervious surfaces. The proposed project includes 1,159 square feet of on-site bioretention areas that would hold and treat stormwater before it is released into the City’s off-site storm drain infrastructure, as well as 2,701 square feet of permeable pavement. See Figure 2-6, Stormwater Management Plan.

The proposed project is required to comply with the Santa Clara Valley Urban Runoff Pollution Prevention Program C.3 requirements, which include minimization of impervious surfaces, measures to detain or infiltrate runoff from peak flows to match predevelopment conditions, and agreements to ensure that the stormwater treatment and flow-control facilities are maintained in perpetuity. The project must also comply with CMC Chapter 9.18, Stormwater Pollution Prevention and Watershed Protection, which is intended to provide regulations and give legal effect to certain requirements of the National Pollutant Discharge Elimination System (NPDES) permit issued to the City.

2.5.4.4 SOLID WASTE SERVICES
Recology would provide curbside recycling, garbage, and compost and landscaping waste service to the project.20 All nonhazardous solid waste collected under the Recology franchise agreement is taken to Newby Island Sanitary Landfill for processing. Under the agreement between the City and Recology, Recology also handles recyclable materials.
20 Recology, 2020. Recology Courtesy Notice, https://www.cupertino.org/Home/ShowDocument?id=28669, accessed June 20, 2022.

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Source: Tectonic Architects & Associates, 2023.

Figure 2-3
Proposed Site Plan
0 Scale (Feet)
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Source: W. Jeffrey Heid Landscape Architect, 2023.

Figure 2-4
Proposed Landscape Plan

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Figure 2-5
Utility Plan
Source: Luk and Associates, Civil Engineering, Land Planning, Land Surveying, 2023. 0 Scale (Feet)
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Figure 2-6
Stormwater Management Plan
Source: Luk and Associates, Civil Engineering, Land Planning, Land Surveying, 2023. 0 Scale (Feet)
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2.5.4.5 OTHER UTILITIES (GAS, ELECTRIC, AND TELECOMMUNICATIONS) The Pacific Gas and Electric Company (PG&E) would supply electricity to the project site via existing infrastructure.21 The source of electricity would be provided through a partnership of Silicon Valley Clean Energy (SVCE), which provides a standard electricity offering from a 50 percent renewable portfolio,22 and PG&E. SVCE also offers a 100 percent renewable option that electricity customers can opt into.

The California Energy Code (Part 6, Title 24) was adopted as part of the California Building Standards Code (Title 24) to reduce wasteful and unnecessary energy consumption in newly constructed and existing buildings. The City of Cupertino has adopted the California Energy Code, with local amendments, as CMC Chapter 16.54, Energy Code. CMC Section 16.54.100(2), Scope for Newly Construction Building, requires all newly constructed buildings to be All-Electric Buildings. All-Electric Buildings are defined as a building that has no natural gas or propane plumbing installed within the building, and that uses electricity as the sole source of energy for its space and water heating.
23 CMC Sections 16.58.100 through 16.58.220 set forth the standards for green building requirements by type of building. As shown in Table 101.10 in CMC Section

16.58.220, new construction greater than nine homes is required to be Green Points Rated certified at minimum 50 points, Silver in Leadership in Energy and Environmental Design (LEED) (City’s preferred method), or Alternate Reference Standard pursuant to CMC Section 101.10.2.24 Telephone service would be provided by AT&T and other providers. Cable television service would be available from a number of providers, including Comcast.

2.5.5 Demolition, Grading, and Construction
The project demolition, grading, and construction is assumed to take place over 16 months (approximately 486 workdays). The project applicant proposes to demolish the two existing buildings and remove the existing vegetation and six trees within the project site.

Demolition and construction work would be conducted between 7:00 a.m. and 8:00 p.m. on weekdays, as provided for in CMC Section 10.48.053, Grading, Construction and Demolition. Demolition and construction 21 City of Cupertino, 2022. Other Service Providers, https://www.cupertino.org/our-city/departments/other-service-providers, accessed June 20, 2022.
22 Silicon Valley Clean Energy, 2022. It’s All About Choice, https://www.svcleanenergy.org/choices/, accessed June 20, 2022. 23 City of Cupertino Municipal Code, Section 16.54.110, Definitions and Rules of Construction. 24 Leadership in Energy and Environmental Design (LEED) is a green building certification program that recognizes best-in-class building strategies and practices that reduce consumption energy, and water, and reduce solid waste directly diverted to landfills. LEED certified buildings are ranked in order of efficiency from Certified, Silver, Gold and Platinum being the highest ranking with the greatest efficiency standard. LEED Silver certified buildings typically reduce is the third highest ranking out of the four, with just being certified being the lowest and Gold and Platinum being the second highest.

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is not permitted on weekends or holidays for sites within 750 feet of other residential properties.25 Demolition debris, including soil, would be off-hauled for disposal in accordance with the City of Cupertino’s Recycling and Diversion of Construction and Demolition Waste Ordinance.26 Typical equipment to be used for demolition and site preparation would include excavators, a skid steer loader, a grader, a rubber-tired dozer, scrapers, and an off-highway truck.

No pile driving, rock blasting, or crushing would occur during the construction phase. Typical equipment to be used during construction of the project would include a backhoe, a crane, aerial lifts, a generator, a diesel pump, dumpers, rollers, and a paver.

During demolition and construction, vehicles, equipment, and materials would be staged and stored on a centrally located portion of the project site when practical. No long-term staging of equipment would occur around the perimeter of the site where adjacent to existing residential uses. No staging would occur in the public right-of-way. The construction site and staging areas would be clearly marked, and construction fencing would be installed to prevent disturbance and safety hazards. A combination of on- and off-site parking facilities for construction workers would be identified during demolition, grading, and construction.

2.5.6 Required Permits and Approvals
Following approval of the CEQA Categorical Exemption, Streamlined Review, and the approval of the proposed project by the City Council, the following discretionary permits and approvals from the City would be required for the proposed project:
 Tentative Map
 Development Permit
 Architectural and Site Approval Permit
 Tree Removal Permit
In addition, permits for demolition, grading and building, and the certificate of occupancy would be required from the City. Encroachment permits from the City would also be required for any work performed in the public right-of-way.

Other entities that also have discretionary authority related to the project, such as PG&E, would authorize the connection/reconnection of electric utilities, San José Water would authorize the installation of a water meter connection, and CSD would be responsible for authorizing the sanitary sewer line. 25 Cupertino Municipal Code, Title 10, Public Peace, Safety and Morals, Chapter 10.48, Community Noise Control, Section

10.48.053, Grading, Construction and Demolition. 26 Cupertino Municipal Code, Title 16, Building and Construction, Chapter 16.72, Recycling and Diversion of Construction and Demolition Waste.

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3. Exemption
As stated in the Chapter 1, Introduction, of this document, Article 19 of the CEQA Guidelines includes a list of classes of projects that have been determined not to have a significant effect on the environment and, as a result, are exempt from review under CEQA. This document has been prepared to serve as the basis for compliance with CEQA as it pertains to the proposed project, and to demonstrate that the project qualifies for a CEQA Exemption as an Infill Development Project, consistent with the provisions of CEQA Guidelines Sections 15332 and 15300.2. Specifically, the information provided herein shows that:
 The proposed project qualifies for an exemption under CEQA Guidelines Section 15332 (Class 32: Infill Development Projects) and, as a result, would not have a significant effect on the environment.  No exceptions to the infill exemption, as identified in CEQA Guidelines Section 15300.2, apply to the proposed project.

3.1 CEQA GUIDELINES SECTION 15332(A): GENERAL PLAN AND

ZONING CONSISTENCY
For the reasons stated here, the proposed project is consistent with the applicable General Plan designation and all applicable General Plan policies, as well as the applicable zoning designations and regulations, and therefore meets the criteria for CEQA Guidelines Section 15332(a).

3.1.1 General Plan
As described in Section 2.3, Land Use and Zoning Designations, the project site is designated Commercial/Office/Residential, which allows for commercial, office, and/or residential uses.

The proposed project would result in the demolition of the existing four residential units and replace it with seven residential units. Therefore, implementation of the proposed project would not introduce a new incompatible land use to the project site, and the current land use of residential would remain. In addition, the 30-foot building height of the proposed project is within the 45-foot height limit allowed for the project site, and the project is within the density allowed for the project site.27 Therefore, the proposed project would be consistent with the General Plan land use designation for the project site. 27 A density of 25 units per acre is allowed on the project site, which would allow up to 8.6 units on the 0.3-acre project site. The seven proposed units are within this allowance.

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3.1.2 Zoning
As described in Section 2.3, Land Use and Zoning Designations, the project site is zoned Planned Development with General Commercial with Residential (P(CG,RES)) on the City of Cupertino Zoning Map.

This allows for residential uses, which is the use currently on the project site. Therefore, the proposed project would not introduce a new incompatible use and would continue to be consistent with the zoning designation on the project site.

3.2 CEQA GUIDELINES SECTION 15332(B): PROJECT LOCATION, SIZE,

AND CONTEXT
For the reasons stated here, the proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses and therefore meets the criteria of CEQA Guidelines Section 15332(b).

The proposed project is located within city limits on an approximately 0.3-acre site. The project site is surrounded by urban uses and paved public streets, including commercial uses, residential uses, a church, and a school, as shown in Figure 2-2, Aerial View of the Project Site and Surroundings. The project site is centrally located in the city and within a PDA and a TPA. Accordingly, the proposed project meets the criteria of CEQA Guidelines Section 15332(b).

3.3 CEQA GUIDELINES SECTION 15332(C): ENDANGERED, RARE, OR

THREATENED SPECIES
For the reasons stated here, which includes compliance with the standard condition of approval protecting nesting birds listed herein, the project site has no value for endangered, rare, or threatened species and therefore meets the criteria of CEQA Guidelines Section 15332(c).

The project site and surrounding area are developed with urban uses. Using data from the Classification and Assessment with Landsat of Visible Ecological Groupings (CALVEG)28 habitat mapping program, the site is classified as an “urban area.” Property with this classification tends to have low to poor wildlife habitat value due to replacement of natural communities, fragmentation of remaining open space areas and parks, and intensive human disturbance. The California Natural Diversity Database (CNDDB) has no record of special-status plant and animal species on the project site or urbanized areas within a one-mile area 28 The CALVEG system was initiated in January 1978 by the Region 5 Ecology Group of the US Forest Service to classify California’s existing vegetation communities for use in statewide resource planning. CALVEG maps use a hierarchical classification on the following categories: forest; woodland; chaparral; shrubs; and herbaceous.

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surrounding the project site. There are no natural lands within a one-mile area of the project site. Therefore, the project site has no value as habitat for endangered, rare, or threatened species.

All landscaping on the project site, including shrubs and the six existing trees, would be removed as a part of the proposed project. Migratory birds, which are protected under the Migratory Bird Treaty Act, may use vegetation, including existing trees, on or near the project site for nesting. The project applicant would be required to comply with CMC Chapter 17.04, Standard Environmental Protection Requirements. Specifically, the project applicant would be required to comply with CMC Section 17.05.050(D)(1) listed here, which would ensure that potential impacts to nesting birds during tree removal and construction would be less than significant:

CMC Section 17.04.050(D)(1), Avoid Nesting Birds During Construction. For all projects that involve removal of a tree (either protected or unprotected) or other vegetation suitable for nesting birds, or construction or ground-disturbing activities defined in CMC Section 17.04.020, the project applicant shall comply with, and the construction contractor shall indicate the following on all construction plans, when required to ensure the following measures are performed to avoid inadvertent take of bird nests protected under the federal Migratory Bird Treaty Act and California Fish and Game Code when in active use:
a) Demolition, construction, ground-disturbing, and tree removal/pruning activities shall be scheduled to avoid the nesting season to the extent feasible. If feasible, construction, grounddisturbing, or tree removal/pruning activities shall be completed before the start of the nesting season to help preclude nesting. The nesting season for most birds and raptors in the San Francisco Bay area extends from February 1 through August 31. Preconstruction surveys (described below) are not required for construction, ground-disturbing, or tree removal/pruning activities outside the nesting period.
b) If demolition, construction, ground-disturbing, or tree removal/pruning activities occur during the nesting season (February 1 and August 31), preconstruction surveys shall be conducted as follows:
i. No more than 7 days prior to the start of demolition, construction, ground-disturbing, or tree removal/pruning activities, in order to identify any active nests with eggs or young birds on the site and surrounding area within 100 feet of construction or tree removal activities. ii. Preconstruction surveys shall be repeated at 14-day intervals until demolition, construction, ground-disturbing, or tree removal/pruning activities have been initiated in the area, after which surveys can be stopped. As part of the preconstruction survey(s), the surveyor shall inspect all trees and other possible nesting habitats in, and immediately adjacent to, the construction areas for active nests, while ensuring that they do not disturb the nests as follows:

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1. For projects that require the demolition or construction one single-family residence, ground disturbing activities affecting areas of up to 500 square feet, or the removal of up to three trees, the property owner, or a tree removal contractor, if necessary, is permitted to conduct the preconstruction surveys to identify if there are any active nests. If any active nests with eggs or young birds are identified, the project applicant shall retain a qualified ornithologist or biologist to identify protective measures.

2. For any other demolition, construction and ground disturbing activity or the removal of four or more trees, a qualified ornithologist or biologist shall be retained by the project applicant to conduct the preconstruction surveys.
c) If the preconstruction survey does not identify any active nests with eggs or young birds that would be affected by demolition, construction, ground-disturbing or tree removal/pruning activities, no further mitigating action is required. If an active nest containing eggs or young birds is found sufficiently close to work areas to be disturbed by these activities, their locations shall be documented, and the qualified ornithologist or biologist shall identify protective measures to be implemented under their direction until the nests no longer contain eggs or young birds. d) Protective measures may include, but are not limited to, establishment of clearly delineated exclusion zones (i.e., demarcated by identifiable fencing, such as orange construction fencing or equivalent) around each nest location as determined by the qualified ornithologist or biologist, taking into account the species of birds nesting, their tolerance for disturbance and proximity to existing development. In general, exclusion zones shall be a minimum of 300 feet for raptors and 75 feet for passerines and other birds. The active nest within an exclusion zone shall be monitored on a weekly basis throughout the nesting season to identify signs of disturbance and confirm nesting status. The radius of an exclusion zone may be increased by the qualified ornithologist or biologist, if project activities are determined to be adversely affecting the nesting birds. Exclusion zones may be reduced by the qualified ornithologist or biologist only in consultation with California Department of Fish and Wildlife. The protection measures and buffers shall remain in effect until the young have left the nest and are foraging independently or the nest is no longer active. e) A final report on nesting birds and raptors, including survey methodology, survey date(s), map of identified active nests (if any), and protection measures (if required), shall be prepared by the qualified ornithologist or biologist and submitted to the Director of Community Development or his or her designee, through the appropriate permit review process (e.g., demolition, construction, tree removal, etc.), and be completed to the satisfaction of the Community Development Director prior to the start of demolition, construction, ground-disturbing, or tree removal/pruning activities.

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CNDDB does not show any occurrences of special-status bats within the site vicinity or anywhere in Cupertino but does show records within several miles of Cupertino. The project applicant would be required to comply with CMC Chapter 17.04, Standard Environmental Protection Requirements. Specifically, the project applicant would be required to comply with CMC Section 17.05.050(D)(2) listed below, which would ensure that potential impacts to roosting bats during tree removal and construction would be less than significant:
29 CMC Section 17.04.050(D)(2), Avoid Special-Status Roosting Bats During Construction Permit Requirements
a) For all projects that involve demolition, renovation, or re-tenanting of an abandoned or vacant building or structure, where the property owner cannot show evidence to the satisfaction of the City of Cupertino Building Inspector that the building or structure was appropriately sealed at the time the building or structure was vacated to prevent bats from roosting, the project applicant shall retain a qualified biologist to conduct preconstruction surveys of the on-site buildings or structures prior to commencing any demolition, renovation, or re-tenanting activities. A building or structure is not appropriately sealed unless seal holes that are more than 0.5 inches in diameter or cracks that are 0.25 by 1.5 inches or larger are filled or closed with suitable material such as caulking, putty, duct tape, self-expanding polyurethane foam, 0.25-inch mesh hardware cloth, 0.5-inch or smaller welded wire mesh, installing tighter-fitting screen doors, or steel wool. b) The project applicant shall comply with, and the construction contractor shall include in the applicable construction documents, the following to ensure appropriate preconstruction surveys are performed and adequate avoidance provided for any special-status roosting bats, if encountered on the site. Preconstruction surveys shall:
i. Be conducted by a qualified biologist prior to tree removal or building demolition, renovation, or re-tenanting. Note that the preconstruction survey for roosting bats is required at any time of year since there is no defined bat roosting season as there is with nesting birds.
ii. Be conducted no more than 14 days prior to start of tree removal or demolition, renovation, or re-tenanting.
29 Cupertino Municipal Code Chapter 17.04: Standard Environmental Protection Requirements, Section 17.04.050 Part D, Biological Resources Permit Requirements.

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iii. Be repeated at 14-day intervals until construction has been initiated after which surveys can be stopped, unless construction activities are suspended for more than 7 consecutive days at which point the surveys shall be reinitiated.
iv. If no special-status bats are found during the survey(s), then no additional measures are warranted.
c) Protective measures shall be included in the applicable construction documents and implemented prior to issuance of permits, if any special-status bat species are encountered or for any roosts detected within the existing structures, where individual bats could be inadvertently trapped and injured or killed during demolition unless passively evicted in advance of construction activities.

Protective measures shall include:
i. If no maternity roosts are detected, adult bats can be flushed out of the structure or tree cavity using a one-way eviction door placed over the exit location for a minimum 48-hour period prior to the time tree removal or building demolition is to commence. ii. Confirmation by the qualified biologist that the one-way eviction door was effective, and that all bats have dispersed from the roost location, modifying any exclusion efforts to ensure individual bats have been successfully evicted in advance of initiating tree removal or building demolition.
iii. If a maternity roost is detected, and young are found roosting in a building identified for demolition, renovation, or re-tenanting, work shall be postponed until the young are flying free and are feeding on their own, as determined by the qualified biologist. iv. Once the qualified biologist has determined that any young bats can successfully function without the maternity roost, then the adults and young bats can be excluded from the structure to be demolished using the one-way eviction methods described above. v. Monitoring shall be provided by the qualified biologist as necessary to determine status of any roosting activity, success of any required bat exclusion, and status of any maternity roosting activity by bats, in the remote instance a maternity roost is encountered on the site.

3.4 CEQA GUIDELINES SECTION 15332(D): TRAFFIC, NOISE, AIR

QUALITY, OR WATER QUALITY
For the reasons stated here, the proposed project would not result in any significant effects related to traffic, noise, air quality, or water quality and therefore meets the criteria of CEQA Guidelines Section 15332(d).

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3.4.1 Traffic

3.4.1.1 VEHICLES
The project site is in the central region of the city along Stevens Creek Boulevard. Regional access to the project site is provided by I-280 via De Anza Boulevard to the north, and by Highway 85 via Stevens Creek Boulevard to the west. Vehicular access to and from the project site on Bianchi Way would not change from existing conditions.

The Governor’s Office of Planning and Research’s Technical Advisory On Evaluating Transportation Impacts in CEQA,
30 and the City’s White Paper SB 743 Implementation Decisions for the City of Cupertino,31 provides guidance on evaluating transportation impacts for redevelopment projects on infill sites and projects that are consistent with the Regional Transportation Plan (RTP)/Sustainable Community Strategy (SCS).

According to these guiding documents, a project that generates less than 110 daily trips may be assumed to cause a less-than-significant transportation impact.32 Plan Bay Area is the Bay Area’s RTP/SCS that identifies the sustainable vision for the Bay Area. An overarching goal of the regional plan is to concentrate development in areas where there are existing services and infrastructure rather than allocate new growth to outlying areas where substantial transportation investments would be necessary to achieve VMT reductions. The proposed project is an infill development project that would result in a slight increase in land use intensity in a portion of the city that has access to existing infrastructure and services. Therefore, the proposed project would not conflict with the Plan Bay Area.
33 As described in Section 3.1.1, General Plan, and Section 3.1.2, Zoning, the proposed redevelopment is consistent with the General Plan land use designation and zoning district. As shown previously in Table 2-1, Reasonably Foreseeable Development Projects in Cupertino (Net New), of this exemption in Section 2.4, General Plan Environmental Impact Report, the proposed project would not exceed the buildout projected in the General Plan EIR. Accordingly, implementation of the proposed project would be consistent with and have no effect on the VMT estimates presented in the General Plan EIR. 30 Governor’s Office of Planning and Research, Technical Advisory On Evaluating Transportation Impacts in CEQA, December 2018.
31 City of Cupertino White Paper SB 743 Implementation Decisions for the City of Cupertino: Appendix E, Small Project Screening for SB 743, February 2021.
32 Governor’s Office of Planning and Research, Technical Advisory On Evaluating Transportation Impacts in CEQA, December 2018, page 12 and City of Cupertino White Paper SB 743 Implementation Decisions for the City of Cupertino, Appendix E: Small Project Screening for SB 743, February 2021, pages 138 and 139. 33 Governor’s Office of Planning and Research, Technical Advisory On Evaluating Transportation Impacts in CEQA, page 18, December 2018.

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On February 16, 2021, the City adopted CMC Chapter 17.08, Evaluation of Transportation Impacts Under the California Environmental Quality Act, which provides screening criteria and VMT thresholds for land-use development projects, transportation projects, and other projects pursuant to CEQA. Under CMC Chapter

17.08, a project would be screened out from more detailed VMT analysis if the project is consistent with applicable General Plan policies and supported by substantial evidence demonstrating cumulative VMT is declining. Project screening may be used for projects that meet one or more of the following criteria:
 Projects within 0.25-mile walking distance of a high-quality transit corridor or major transit stop as defined by CEQA.
 Local-serving retail projects of up to 50,000 square feet.  Land use projects consisting of 100 percent affordable housing.

The project site is within 0.25 miles of the De Anza College major transit stop34 and therefore, the proposed project meets the City’s VMT screening criterial of being within 0.25 miles of a major transit stop.

Additionally, applying the Institute of Transportation Engineer’s Trip Generation Manual, 11th Edition, rate for single-family attached housing (Land Use 215) in a General Urban/Suburban setting for the seven proposed townhomes, the proposed project would generate approximately 50 daily trips. Applying this same rate for the existing single-family attached duplex units, the existing units generate approximately 29 daily trips for a total net new 21 trips to the project site.35 Therefore, the project also meets the Governor’s Office of Planning and Research (OPR) VMT screening criteria of a small project generating less than 110 new trips per day. Accordingly, it can be assumed to have a less-than-significant impact on VMT. Accordingly, there would be no transportation impacts associated with operation of vehicles from the proposed project.

3.4.1.2 PEDESTRIAN, BICYCLE, AND PUBLIC TRANSIT
The project site is in central Cupertino and would continue to be accessible to pedestrians, bicyclists, and transit users. The site is served by the existing Class II bike lanes on Stevens Creek Boulevard. 36Public transit
to the project site is provided by local municipal bus lines 23, 51, 51H, 55, and Rapid 523 operated by the VTA with bus stops less than 0.25 miles to the west at the intersection of Stevens Creek Boulevard and North 34 Public Resources Code, Section 21064.3, states that a ‘major transit stop’ is a site containing an existing rail transit station, a ferry terminal served by either a bus or rail transit service, or the intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods. 35 (7 townhomes x 7.2 daily trips per unit = 50 daily trips) – (4 single-family attached units x 7.2 daily trips per unit = 29 daily trips) = 21 net new daily trips.
36 Class I Bikeways are off-road paths and trails. Class II Bikeways are bike lanes for bicyclists that are generally adjacent to the outer vehicle travel lanes and have special lane markings, pavement legends, and signage. Class III Bikeways are bicycle routes, which are shared facilities with vehicles and other road users and are often marked by signs and sharrows.

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Stelling Road. Pedestrian, bicycle, and public transit access to and from the project site would not change from existing conditions.

The proposed project would not substantially increase the population at the project site resulting in a large number of vehicular trips and therefore would not result in changes to the City’s transportation and circulation system that could conflict with adopted policies, plans, or programs regarding transit, bicycle, or pedestrian facilities. The proposed project would not otherwise decrease the performance or safety of such facilities or cause a substantial increase in transit demand that cannot be accommodated by existing or proposed transit capacity or alternative travel modes. Accordingly, there would be no transportation impacts related to pedestrians, bicycles, or public transit during the operation of the proposed project.

3.4.1.3 CONSTRUCTION
During the construction period, the proposed project would result in temporary changes to existing transportation conditions. Temporary traffic would be generated by construction employees and construction activities, including haul trucks. During demolition and construction, vehicle, equipment, and materials would be staged and stored on a portion of the project site. The construction site and staging areas would be clearly marked, and construction fencing would be installed to prevent disturbance and safety hazards. Therefore, no significant hazards for vehicles, pedestrians, and/or cyclists in the area would occur during this phase.

3.4.2 Noise
Because the proposed project would include the redevelopment of the site with the same use and is consistent with the General Plan and zoning district (see Section 3.1, CEQA Guidelines Section 15332(a):

General Plan and Zoning Consistency), this analysis addresses increases in ambient noise levels for adjoining areas during construction and operation.

3.4.2.1 EXISTING NOISE CONDITIONS
The project site is within the 65 to 70 A-weighted decibel (dBA) community noise equivalent level (CNEL) noise contour according to the City of Cupertino General Plan Future Noise Contour (Figure D-1 in Appendix D of the Cupertino General Plan).37 The noise environment in the project vicinity is primarily characterized by vehicular traffic along Stevens Creek Boulevard to the north of the project site and South Stelling Road to the west of the project site. Operations and activities from adjacent commercial and residential uses also contribute to the existing noise environment in the project vicinity. 37 City of Cupertino, 2015. Cupertino General Plan Community Vision 2015-2040.

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As described in Section 2.2.1, Location, sensitive receptors include places with people that have an increased sensitivity to air pollution, noise, or environmental contaminants. Noise-sensitive receptors are measured from the center of the project site to the property line of the receptor. Accordingly, the nearest noise-sensitive receptor to the project site is the medical building (chiropractor) approximately 50 feet to the north.

3.4.2.2 PROJECT-RELATED CONSTRUCTION NOISE
Demolition and Construction
The proposed project would demolish the two existing buildings (four units) and remove the existing vegetation and trees on the project site. Demolition and construction work would be conducted between 7:00 a.m. and 8:00 p.m. on weekdays, as provided for in CMC Section 10.48.053, Grading, Construction and Demolition. Demolition and construction are not permitted on weekends or holidays for sites within 750 feet of other residential properties. Demolition debris, including soil, would be off-hauled for disposal in accordance with the City of Cupertino’s Recycling and Diversion of Construction and Demolition Waste Ordinance.38
During demolition and construction, vehicles, equipment, and materials would be staged and stored on a centrally located portion of the project site when practical. No long-term staging of equipment would occur around the perimeter of the site where adjacent to existing residential uses. No staging would occur in the public right-of-way. The construction site and staging areas would be clearly marked, and construction fencing would be installed to prevent disturbance and safety hazards. A combination of on- and off-site parking facilities for construction workers would be identified during demolition, grading, and construction.

Noise generated during construction is based on the type of equipment used, the location of the equipment relative to sensitive receptors, and the timing and duration of the noise-generating activities. Each activity phase (e.g., demolition, site preparation, building construction) of construction involves the use of different construction equipment, and therefore, each activity phase has its own distinct noise characteristics. No pile driving, rock blasting, or crushing would occur during the construction phase. Noise levels from construction activities are dominated by the loudest piece of construction equipment. The dominant noise source is typically the engine, although work piece noise (such as dropping of materials) can also be noticeable. Heavy equipment, such as a bulldozer or a loader, can have maximum, short-duration noise levels of 85 dBA at 50 feet. Noise from construction equipment is intermittent and diminishes at a rate of 6 dBA per doubling distance.
39 38 Cupertino Municipal Code, Title 16, Building and Construction, Chapter 16.72, Recycling and Diversion of Construction and Demolition Waste.
39 The sound attenuation rate of 6 dBA is generally conservative and does not consider additional attenuation provided by existing buildings, structures, and natural landscapes around the project site.

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The noise generated at each activity phase is determined by combining the Leq (equivalent continuous sound level) contributions from the top -three loudest pieces of equipment used at a given time. Based on the site plans, the project site is approximately 110 feet by 150 feet. This means that construction equipment could often operate within 50 feet of any adjacent land use property line, including the nearest noise-sensitive receptor to the north. Table 3-1, Project Construction Noise Levels by Activity Phase, shows the aggregate construction noise emissions, by activity phase, at a reference distance of 50 feet. Additionally, Table 3-2, Project Construction Noise Levels by Equipment, shows the noise emissions from each individual piece of construction at 25 feet. Construction equipment was modeled using the Roadway Construction Noise Model (RCNM).

TABLE 3-1 PROJECT CONSTRUCTION NOISE LEVELS BY ACTIVITY PHASE Activity Phase
a
RCNM Reference Noise Level at 50 feet in dBA Leq
b

Building Demolition 82
Site Preparation 79
Grading 81
Building Construction 82
Paving 80
Architectural Coating 71
Finish and Landscaping 71
Notes:
a. Equipment mix provided by the project applicant.
b. Noise level rounded to the nearest whole number.

Source: Roadway Construction Noise Model (RCNM)
As described in CMC Section 10.48.053, construction and demolition activities are exempt for the daytime noise standard of 60 dBA provided construction noise does not exceed 80 dBA at the receptor’s receiving property line or no individual piece of construction equipment exceeds 87 dBA at 25 feet. Only one of these standards is required to be met. The proposed project would meet the second criterion and no single piece of equipment would exceed 87 dBA at a distance of 25 feet (see Table 3-2).

TABLE 3-2 PROJECT CONSTRUCTION NOISE LEVELS BY EQUIPMENT Individual Equipment
a RCNM Reference Noise Level at 25 feet in dBA Leq b

Backhoe 80
Compactor 82
Compressor (air) 80
Concrete Mixer Truck 81
Concrete Pump Truck 80
Crane 79
Dozer 74
Drum Mixer 83
Dump Truck 79
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TABLE 3-2 PROJECT CONSTRUCTION NOISE LEVELS BY EQUIPMENT Individual Equipment
a RCNM Reference Noise Level at 25 feet in dBA Leq b

Excavator 83
Flat Bed truck 76
Paver 80
Pickup Truck 77
Pumps 84
Vibratory Concrete Mixer 79
Notes:
a. Equipment mix provided by the project applicant.
b. Noise level rounded to the nearest whole number.

Source: Roadway Construction Noise Model (RCNM)
Furthermore, CMC Chapter 17.04, Standard Environmental Protection Requirements, identifies standard environmental protection requirements that all construction projects must meet. Specifically, the project applicant would be required to comply with CMC Sections 17.04.050(G)(1) and 17.04.050(G)(2) listed below, which would further ensure impacts from construction would be less than significant:

CMC Section 17.04.050(G)(1), Notice and Signage. At least 10 days prior to the start of any demolition, ground disturbing, or construction activities, because the project site is between 0.25 to 0.5 acres, the project applicant shall send notices shall be sent to off-site businesses and residents within 250 feet of the project site. The notification shall include a brief description of the project, the activities that would occur, the hours when activity would occur, and the construction period’s overall duration. The notification should include the telephone numbers of the contractor’s authorized representatives that are assigned to respond in the event of a noise or vibration complaint. The project applicant shall provide the City with evidence of mailing of the notice, upon request. Additionally, the at least 10 days prior to the start of construction activities, a sign shall be posted at the entrance(s) to the job site, clearly visible to the public, which includes permitted construction days and hours, as well as the telephone numbers of the City’s and contractor’s authorized representatives that are assigned to respond in the event of a noise or vibration complaint. If the authorized contractor’s representative receives a complaint, they shall investigate, take appropriate corrective action, and report the action to the City within three business days of receiving the complaint.

CMC Section 17.04.050(G)(2), Manage Noise During Construction. a) The project applicant and contractors shall prepare and submit a Construction Noise Control Plan to the City’s Planning Department for review and approval prior to issuance of the first permit. The Construction Noise Plan shall demonstrate compliance with daytime and nighttime decibel limits pursuant to Chapter 10.48 (Community Noise Control) of Cupertino Municipal Code. The details of the Construction Noise Control Plan shall be included in the applicable construction documents and implemented by the on-site Construction Manager. Noise reduction measures selected and implemented shall be based on the type of construction equipment used on the site, distance of CC 01-17-2024
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construction activities from sensitive receptor(s), site terrain, and other features on and surrounding the site (e.g., trees, built environment) and may include, but not be limited to, temporary construction noise attenuation walls, high quality mufflers. During the entire active construction period, the Construction Noise Control Plan shall demonstrate that compliance with the specified noise control requirements for construction equipment and tools will reduce construction noise in compliance with the City’s daytime and nighttime decibel limits. b) Select haul routes that avoid the greatest amount of sensitive use areas and submit to the City of Cupertino Public Works Department for approval prior to the start of the construction phase. c) Signs will be posted at the job site entrance(s), within the on-site construction zones, and along queueing lanes (if any) to reinforce the prohibition of unnecessary engine idling. All other equipment will be turned off if not in use for more than 5 minutes. d) During the entire active construction period and to the extent feasible, the use of noise producing signals, including horns, whistles, alarms, and bells will be for safety warning purposes only. The construction manager will use smart back-up alarms, which automatically adjust the alarm level based on the background noise level or switch off back-up alarms and replace with human spotters in compliance with all safety requirements and law.

In summary, the construction activity would be compliant with the CMC noise standards and impacts would be less than significant.

Vibration
The nearest structures to construction activities such as grading, site preparation, and paving that would produce vibration from paving equipment, such as a ground compactor, a backhoe, and paver, and other heavy equipment, such as graders, bulldozers, and tractors, would occur within 15 to 25 feet of the nearest off-site structures (i.e., adjacent medical building to the north and carports to the south). Accordingly, the project applicant would be required to comply with CMC Sections 17.04.040(D)(1)(b) and

17.04.040(D)(1)(c), which require the use of a static roller in lieu of a vibratory roller for all paving activities and limits all off-road equipment for grading and earthwork activities to 100 horsepower or less, respectively. Compliance with CMC Sections 17.04.040(D)(1)(b) and 17.04.040(D)(1)(c) would ensure vibration levels due to construction activities would not exceed 0.2 inches per second peak particle velocity (in/sec PPV) at nearby buildings or structures. Accordingly, impacts from construction-related vibration would be less than significant.

3.4.2.3 STATIONARY OPERATIONAL NOISE
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to as HVAC equipment. The proposed project would demolish existing buildings and replace with new construction, replacing the previous HVAC equipment with new HVAC equipment. Therefore, the proposed project would not introduce a new noise source and would not result in a significant noise increase above existing conditions. Further, as a general rule, newer HVAC equipment is more efficient and quieter than the older HVAC equipment. Therefore, impacts would be less than significant.

3.4.2.4 TRAFFIC NOISE
As previously discussed, the proposed project is estimated to result in 21 net new daily vehicle trips. The addition of 21 net new vehicle trips when compared to the thousands of existing daily trips along Stevens Creek Boulevard would result in a negligible traffic noise increase. Therefore, impacts would be less than significant.

3.4.2.5 AIRCRAFT NOISE IMPACTS
Because the project site is not within two miles of a public or public use airport, which is the standard for assessing noise impacts under CEQA, the proposed project would not result in the exposure of people residing or working in the project area to excessive noise levels associated with the proximity of an airport.

Accordingly, impacts would be less than significant.

3.4.3 Air Quality
The proposed project is in the San Francisco Bay Area Air Basin under the jurisdiction of the Bay Area Air Quality Management District (BAAQMD), which regulates air quality in the San Francisco Bay Area. Within the BAAQMD, ambient air quality standards for ozone, carbon monoxide (CO), nitrogen dioxide (NO2), sulfur dioxide (SO2), particulate matter (PM10, PM2.5), and lead (Pb) have been set by both the State of California and the federal government. The State has also set standards for sulfate and visibility. The San Francisco Bay Area Air Basin is under State nonattainment status for ozone and particulate matter (both PM10 and PM2.5) standards. The San Francisco Bay Area Air Basin is classified as nonattainment for the federal ozone 8-hour standard and nonattainment for the federal 24-hour standard for fine particulate matter of 2.5 microns or less in diameter (PM2.5).40

3.4.3.1 CONSISTENCY WITH APPLICABLE AIR QUALITY PLANS
The applicable air quality plan is the BAAQMD 2017 Clean Air Plan/Regional Climate Protection Strategy, which was adopted on April 19, 2017. The 2017 Clean Air Plan/Regional Climate Protection Strategy serves as a roadmap for the BAAQMD to reduce air pollution and protect public health and the global climate. The 2017 Clean Air Plan also includes measures and programs to reduce emissions of fine particulates and toxic 40 Bay Area Air Quality Management District. Air Quality Standards and Attainment Status. https://www.baaqmd.gov/about-airquality/research-and-data/air-quality-standards-and-attainment-status, accessed August 28, 2022.

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air contaminants. Additionally, the Regional Climate Protection Strategy identifies potential rules, control measures, and strategies that the BAAQMD can pursue to reduce greenhouse gases (GHGs) throughout the Bay Area.

Consistency with the 2017 Clean Air Plan is determined by whether or not the proposed project would result in significant and unavoidable air quality impacts or hinder implementation of control measures (e.g., excessive parking or preclude extension of transit lane or bicycle path). As indicated in the analysis that follows, the proposed project would not result in significant operational and construction-period emissions.

Therefore, the proposed project supports the goals of the Clean Air Plan and would not conflict with any of the control measures identified in the Clean Air Plan as designed to bring the region into attainment.

Additionally, the project site is in an urban area and would increase housing within a TPA. Therefore, the proposed project would not hinder or disrupt implementation of any control measures from the Clean Air Plan.

3.4.3.2 CUMULATIVELY CONSIDERABLE NET INCREASE OF ANY CRITERIA POLLUTANT As described previously, the San Francisco Bay Area Air Basin is currently designated a nonattainment area for California and National O3, California and National PM2.5, and California PM10 air quality standards. Any project that produces a significant project-level regional air quality impact in an area that is in nonattainment adds to the cumulative impact. Due to the extent of the area potentially impacted by cumulative plus project emissions (the San Francisco Bay Area Air Basin), a project is cumulatively significant when project-related emissions exceed the BAAQMD emissions thresholds.

BAAQMD has identified thresholds of significance for criteria pollutant emissions and criteria air pollutant precursors, including ROG, NOx, PM10, and PM2.5. Development projects below the significance thresholds would not generate sufficient criteria pollutant emissions to violate any air quality standard or contribute substantially to an existing or projected air quality violation.

In addition, BAAQMD has developed screening criteria for a conservative indication of whether the proposed project could result in potentially significant air quality impacts. If the screening criteria are met by a proposed project, then a detailed air quality assessment of air pollutant emissions is not necessary.

Table 4-1, Single Land Use Construction and Operational Criteria Air Pollutant and Precursor Screening Levels, of the BAAQMD CEQA Guidelines, lists an operational screening size for general condo/townhouses of 637 dwelling units, and a construction-related screening size of 416 dwelling units.41 Because the proposed project is below this threshold, it does not require a detailed air quality emissions analysis. 41 Bay Area Air Quality Management District, 2023. 2022 CEQA Guidelines Chapter 4, “Screening for Criteria Air Pollutants and Precursors,” page 4-4.

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In addition, BAAQMD has the following screening criteria for carbon monoxide (CO) impacts; the proposed project would result in a less-than-significant impact to localized CO concentrations if the following criteria is met:
 The project is consistent with an applicable congestion management program established by the county congestion management agency for designated roads or highways, regional transportation plan, and local congestion management agency plans.
 The project traffic would not increase traffic volumes at affected intersections to more than 44,000 vehicles per hour.
 The project traffic would not increase traffic volumes at affected intersections to more than 24,000 vehicles per hour where vertical and/or horizontal mixing is substantially limited (e.g., tunnel, parking garage, bridge underpass, natural or urban street canyon, below-grade roadway).

As shown in Section 3.4.1, Traffic, the proposed project meets this screening criteria, and would not result in significant impacts regarding CO.

Regional Short-Term Construction Impacts
The following describes project-related impacts from regional short-term construction activities and regional long-term operation of the proposed project.

Construction activities produce combustion emissions from various sources, such as on-site heavy-duty construction vehicles, vehicles hauling materials to and from the site, and motor vehicles transporting the construction crew. Site preparation activities produce fugitive dust emissions (PM10 and PM2.5) from demolition and soil-disturbing activities, such as grading and excavation. Air pollutant emissions from construction activities on-site would vary daily as construction activity levels change. Construction activities associated with the proposed project would result in emissions of ROG, NOx, CO, PM10, and fine PM2.5.

Construction Fugitive Dust
Ground-disturbing activities during construction would generate fugitive dust (PM10 and PM2.5). The amount of dust generated during construction would be highly variable and is dependent on the amount of material being disturbed, the type of material, moisture content, and meteorological conditions. If uncontrolled, PM10 and PM2.5 levels downwind of actively disturbed areas could possibly exceed State standards.

Consequently, BAAQMD considers all impacts related to fugitive dust emissions from construction to be less than significant with implementation of BAAQMD’s best management practices, which are also required pursuant to CMC Section 17.04.050(A)(1), Control Fugitive Dust During Construction. The current best management practices that are required to be implemented by the project applicant are listed herein:
 All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved access roads) shall be watered two times per day.

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 All haul trucks transporting soil, sand, or other loose material off-site shall be covered.  All visible mud or dirt tracked-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.  All vehicle speeds on unpaved roads shall be limited to 15 miles per hour.  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.  Idling times shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to five 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.
 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.
 A publicly visible sign shall be posted with the telephone number and person to contact at the City of Cupertino regarding dust complaints. This person shall respond and take corrective action within 48 hours. The phone number shall also be visible to ensure compliance with applicable regulations.

Construction Exhaust Emissions
The proposed project would result in demolition, demolition debris hauling, site preparation, grading, building construction, paving, and architectural coating that would occur near existing sensitive land uses, as shown in Section 2.2.1, Location. CMC Section 17.04.050(A)(2), Control Construction Exhaust, requires projects that disturb more than one acre and are more than two months in duration to implement construction exhaust measures. The project site, approximately 0.3 acres, falls below the City’s threshold.

In addition, pursuant to CMC Section 17.04.050(A)(3), Control Volatile Organic Compound Emissions from Paint, the project applicant would be required to use low-volatile organic compound (VOC) paint (i.e., 50 grams per liter [g/L] or less) for interior and exterior wall architectural coatings. The project applicant shall include the use of low-VOC paint in the applicable construction documents prior to issuance of the first permit. Because the construction exhaust emissions are temporary, and the project site falls below the City thresholds regarding construction exhaust emissions, impacts would be less than significant.

Operational Impacts
Typical long-term air pollutant emissions are generated by area sources (e.g., landscape fuel use, aerosols, architectural coatings, and asphalt pavement), energy use (natural gas), and mobile sources (i.e., on-road vehicles). Types of land uses that typically generate substantial quantities of criteria air pollutants and toxic air contaminants include industrial (stationary sources), manufacturing, and warehousing (truck idling) land uses. These types of major air pollutant emissions sources are not included as part of the proposed project.

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The proposed project would not include stationary sources that emit toxic air contaminants and would not generate a significant amount of heavy-duty truck trips (a source of diesel particulate matter [DPM]).

Therefore, the proposed project would not expose sensitive receptors to substantial concentrations of air pollutant emissions during operation.

BAAQMD CEQA Guidelines states that if a project meets the screening criteria for operational-related criteria air pollutants, the project would not result in the generation of operational-related criteria air pollutants and/or precursors that exceed BAAQMD’s thresholds of significance. As previously stated, the proposed project’s seven units on a 0.3-acre site falls below BAAQMD’s thresholds (general condo/townhouses of 637 dwelling units and a construction-related screening size of 416 dwelling units) and City thresholds for quantifying air pollutants(less than one acre of disturbed land), and therefore would also not generate air pollutants that would cause a significant impact, and operational air quality impacts would be less than significant.

Carbon Monoxide Hotspot Analysis
Areas of vehicle congestion have the potential to create pockets of carbon monoxide (CO) called hotspots.

These pockets have the potential to exceed the State 1-hour standard of 20 parts per million (ppm) or the 8-hour standard of 9 ppm.

Under existing and future vehicle emission rates, a project would have to increase traffic volumes at a single intersection by more than 44,000 vehicles per hour—or 24,000 vehicles per hour where vertical and/or horizontal mixing is substantially limited—to generate a significant CO impact. As described in Section 3.4.1, Traffic, the proposed project would result in 21 net new daily vehicle trips. Thus, the proposed projectwould not increase traffic volumes at affected intersections by more than 44,000 vehicles per hour or 24,000 vehicles per hour where vertical and/or horizontal mixing is substantially limited.42 The proposed project would not have the potential to substantially increase CO hotspots at intersections in the project vicinity.

As a result, the proposed project would not increase CO concentrations at intersections. Therefore, impacts would be less than significant.

3.4.3.3 ODORS
During project construction, some odors may be created due to diesel exhaust. However, these odors would be temporary and limited to the construction period. The proposed project would not include any activities or operations that would generate objectionable odors and once operational, the project would not be a source of odors. Therefore, the proposed project would not create objectionable odors affecting a substantial number of people and impacts would be less than significant. 42 Bay Area Air Quality Management District (BAAQMD), 2011 Revised. California Environmental Quality Act Air Quality Guidelines.

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3.4.3.4 GREENHOUSE GAS EMISSIONS
A project does not generate enough GHG emissions on its own to influence global climate change; therefore, this section measures the proposed project contribution to the cumulative environmental impact associated with GHG emissions. Development of the proposed project would contribute to climate change through direct and indirect GHG emissions from the construction activities needed to implement the proposed project, which would generate a short-term increase in GHG emissions.

Construction Impacts
BAAQMD does not have thresholds of significance for construction-related GHG emissions, which are onetime, short-term emissions and therefore would not significantly contribute to the long-term cumulative GHG emissions impacts of the proposed project. Implementation of the BAAQMD basic construction best management practices, refer to Section 3.4.3.2 [Construction Fugitive Dust]) required pursuant to Section

17.04.050(A)(1), would reduce GHG emissions by reducing the amount of construction vehicle idling and by requiring the use of properly maintained equipment. Therefore, project construction impacts associated with GHG emissions would be reduced to the extent feasible, as required by the BAAQMD, and would be less than significant.

Operational Impacts
The proposed project would generate a net increase in 21 daily weekday trips compared to existing on-site land uses. Because transportation emissions would generate the majority of GHG emissions associated with the proposed project, this net increase in daily trips would not substantially increase GHG emissions in the city. Additionally, the new buildings would be more energy efficient than the existing structures and would be built to achieve the latest Title 24 Building and Energy Efficiency Standards.

BAAQMD has the following thresholds for land use projects in analyzing GHG emissions impacts; projects must include conditions listed under either A or B:

A. Projects must include, at a minimum, the follow project design elements:

1. Buildings
a. The project will not include natural gas appliances or natural gas plumbing (in both residential and nonresidential development).
b. The project will not result in any wasteful, inefficient, or unnecessary energy usage as determined by the analysis required under CEQA Section 21100(b)(3) and Section 15126.2(b) of the State CEQA Guidelines.

2. Transportation
a. Achieve a reduction in project-generated vehicle miles traveled (VMT) below the regional average consistent with the current version of the California Climate Change Scoping Plan (currently 15 percent) or meet a locally adopted Senate Bill CC 01-17-2024
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743 VMT target, reflecting the recommendations provided in the Governor’s Office of Planning and Research's Technical Advisory on Evaluating Transportation Impacts in CEQA:
i. Residential projects: 15 percent below the existing VMT per capita ii. Office projects: 15 percent below the existing VMT per employee iii. Retail projects: no net increase in existing VMT
b. Achieve compliance with off-street electric vehicle requirements in the most recently adopted version of CALGreen Tier 2.

B. Projects must be consistent with a local GHG reduction strategy that meets the criteria under State CEQA Guidelines Section 15183.5(b).

As described herein, the proposed project would meet the conditions listed under criterion B, for being consistent with a locally adopted GHG reduction strategy. In addition, it would not include natural gas appliances or plumbing, or result in any wasteful, inefficient, or unnecessary energy usage, as previously explained.

Cupertino Climate Action Plan
The Cupertino Climate Action Plan 2.0 (CAP 2.0) is a strategic planning document that identifies sources of GHG emissions within the city’s boundaries, presents current and future emissions estimates, identifies a GHG reduction target for future years, and presents strategic goals, measures, and actions to reduce emissions from the energy, transportation, land use, water, solid waste, and green infrastructure sectors.

A specific project proposal is considered consistent with the Cupertino CAP 2.0 if it does not conflict with the required GHG reduction measures contained in the adopted CAP. Project consistency with the adopted GHG reduction measures is shown in Table 3-4, Cupertino Climate Action Plan Consistency Matrix:

TABLE 3-4 CUPERTINO CLIMATE ACTION PLAN CONSISTENCY MATRIX Measure Consistency
Measure BE-1 Reduce non-SVCE usage rate to 2 percent
for residential and 10 percent for commercial by 2030 and maintain through 2040.

Consistent. The proposed project would comply with the current California Building and Energy Efficiency Standards to reduce energy consumptions.

Measure BE-4 Require new residential and commercial
development to be all-electric at time of construction.

Consistent. The City of Cupertino has adopted the California Energy Code (CMC Chapter 16.54) that requires all newly constructed buildings to be All-Electric Buildings. Therefore, the proposed project would comply with this measure.

Measure TR-1 Develop and implement an Active
Transportation Plan to achieve 15 percent of active
transportation mode share by 2030 and 23 percent by
2040.

Consistent. The City is the responsible party for this measure. As stated in Chapter 2, Project Description, while the proposed project does not propose any new bicycle lanes or routes, the site is accessible via the existing Enhanced Bike Lanes on Stevens Creek Boulevard and South Stelling Road. As such, the proposed project CC 01-17-2024
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TABLE 3-4 CUPERTINO CLIMATE ACTION PLAN CONSISTENCY MATRIX Measure Consistency
would not conflict with the City’s 2016 Bicycle Transportation Plan.

Pedestrians would also have access to the site via the existing sidewalks that will connect to the pedestrian network surrounding the project site. Therefore, the proposed project would promote and would not obstruct these alternative modes of transportation.

Measure TR-2 Implement public and shared transit
programs to achieve 29 percent of public transit mode
share by 2030 and maintain through 2040.

Consistent. The City is the responsible party for this measure. The proposed project is a redevelopment project near the De Anza College major transit stop served by VTA bus routes 23, 51, 51H, 55, and Rapid 523. The proposed project would not conflict with implementation of this measure.

Measure TR-3 Increase zero-emission vehicle (ZEV)
adoption to 35 percent for passenger vehicles and 20
percent for commercial vehicles by 2030 and 100 percent for all vehicles by 2040.

Consistent. The proposed project would result in an increase in land use intensity in a portion of the city that has access to existing transportation infrastructure and services, including the VTA bus routes 23, 51, 51H, 55, and Rapid 523. To encourage transition to electric vehicles (EVs), the proposed project would be required to install EV charging stations pursuant to the City’s code. The proposed project would be conditioned by the City to install 6 Level 2 EV Ready Circuits and six 6 Level 1 EV Ready Circuits, one of each in each of the townhome units, and therefore would be consistent with this standard to increase this to the minimum of EV-capable charging spaces to comply with the voluntary Tier 2 standards of CALGreen as required by BAAQMD.

Measure W-1 Implement SB 1383 requirements and
reduce communitywide landfilled organics 75 percent by
2025 and inorganic waste 35 percent by 2030 and reduce
all waste 90 percent by 2040.

Consistent. The City is the responsible party for implementing this measure. The proposed project would include compost and green waste disposal services through the City’s contracts with Recology South Bay. The materials would be collected by the City garbage waste hauler (Recology). The proposed project would not conflict with implementation of this measure.

Measure W-2 Reduce overall waste disposed to garbage,
recycling, and compost per capita by 15 percent by 2035.

Consistent. The City is the responsible party for implementing this measure. The proposed project would include compost and green waste disposal services through the City’s contracts with Recology South Bay. The materials would be collected by the City garbage waste hauler. The proposed project would not conflict with implementation of this measure.

Measure W-3 Meet or exceed the SB 1383 recycled
organics products procurement requirements and
sequester or avoid at least 0.018 MT CO2e per person by through 2045.

Consistent. The City is the responsible party for implementing this measure. The proposed project would include compost and green waste disposal services through the City’s contracts with Recology South Bay. The materials would be collected by the City garbage waste hauler. The proposed project would not conflict with implementation of this measure.

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