Planning Commission - Regular Meeting

Chair, we're all set to begin. We ready to begin.

Good evening. Let's call to order the Planning Commission meeting of August 10th 1926 at 7 o 4 p.m The city does not tolerate disruptive behavior in our meetings. Sunnyvale prides itself on the rich diversity of our residents. We are committed to creating a culture of belonging where members of our diverse community feel included, safe, and respected. This planning commission meeting is considered a limited public forum, which means the commission can regulate the time, place, and manner of speech. Speaker comments must be limited to the agenda items being considered by the commission for consent calendar or public hearing items. Speaker comments during oral communications must be limited to matters within the commission's authority, generally referred to as within the commission's subject matter jurisdiction. If a speaker's comments are not related to an agenda item, the presiding officer will rule the speaker out of order. A speaker will not be ruled out of order because of a disagreement with the content of the speech. Location and online meeting details are available in the planning commission agenda. Use the show captions button to view captions on Zoom. Comments on matters not on the agenda must be submitted prior to the time I call the item for oral communications. Comments on agenda items must be submitted prior to the time I close the public hearing on the agenda item. Speakers are requested to keep their comments to the time period set for public comments for the agenda item, which will be strictly enforced. Guidelines are posted on the city's website and on the Planning Commission meeting agenda. Please stand if you are able and join me in the salute to the flag.

I pledge allegiance to the flag of the United States of America, due to the authority for which it stands, one nation under God, indivisible, with liberty and justice for all.

Recording officer, may we please have the roll call.

Commissioner Iglesias?

Present.

Commissioner Pine.

Present.

Commissioner Shukla.

Present.

Chair Cerrone.

Present.

Vice Chair Davis. Present. We have five commissioners present. Commissioner Segura's absence is excused. Commissioner Fagoni's absence is unexcused.

Okay. Um, now let's move to oral communications. This is now the public's opportunity to address the commission on topics not listed on tonight's agenda. This section is limited to 15 minutes and may be extended or continued after the public hearing, uh, general business section of the meeting individuals may only speak once during oral communications. This planning commission meeting is a limited public forum, and the commission can regulate the time, place, and manner of speech. Speaker comments during oral communications must be limited to matters within the commission's authority, which is known as a commission subject matter jurisdiction. If a speaker's comments are outside the commission subject matter jurisdiction, the presiding officer will rule the speaker out of order. This allows the Commission to conduct its business in a reasonably efficient manner and protects the rights of other speakers. A speaker will not be ruled out of order because of disagreement with the content of their speech. Please submit a speaker card to the recording officer, raise your digital hand now, or dial star nine on a telephone to indicate you wish to speak. I will call on members of the public participating in person first, followed by remote participants.

Speakers will have three minutes to speak.

I don't have any speaker cards. Recording officer, do we have any remote speakers?

No, we do not, Chair.

All right. So I will go ahead and close oral communications. So let's move to the consent calendar. I will go ahead and open public comment on consent calendar items, please submit a speaker card. To the recording officer raise your digital hand now or dial star nine on telephone to indicate to which to switch to speak, I will call on members of the public participating in person first followed by remote participant. Chair, do we have any remote participant recording officer, do we have any remote participants, no, we do not thank you. Uh, so I will close public comment and, uh, ask for a motion from my colleagues. Uh, commissioner pine.

Thank you, chairman of the consent Congress of measured, uh, commissioner and glaciers.

Second, is there any discussion or advocacy on the motion? Seeing no hands, recording officer, please conduct a vote.

The motion passes with six yeses and Commissioner Segura absent.

Okay, at this time, so we're going to go a little bit out of order here and move to... Instead of item two, we're gonna move to item three, 26-0646, proposed project related applications on a 0.57 acre site. Location is 781 South Wolf Road. So... I think we want to ‑‑ is there a staff presentation?

No presentation, but we are requesting that the project be continued to a date certain of September 14, 2026. All right.

So before I open public comment, any, oh, Commissioner Pine.

Thank you, Chair. Just quickly, just in the spirit of trying to save paper, are we expecting a resubmittal of the, whatchamacallit, the plan sheets, or should we just keep the current ones?

You can just keep the ones you have. That would be great.

Okay, thank you.

So I think you're saying nothing is going to change on those.

We might have one sheet that changed, but we'll just provide an exhibit or something to show that.

Right, right. So I'll open comment on public comment, open the public hearing on this specific item. Now, Normally, for something like this, if it's noticed that way, we would say the comments are limited to discussion of the postponement. But this was noticed in terms of the entire project. So should we accept comments on the entire project?

You should take comments on the entire project the way it was noticed.

OK. All right. Well, let me open the public hearing on this item. Is there an applicant presentation? Okay, well, so 10 minutes is provided at the beginning of the public hearing to address flight permission. We'll have five minutes at the end of the public hearing. Please submit a speaker card to the recording officer, raise your digital hand now or dial nine on the telephone to indicate you wish to speak. But go ahead with the...

Good evening, Commission. I was under the impression you're pushing this item back to September 14th. So, I don't know. Are we going forward with this? No.

We still have to open public comment.

Oh, okay. Well, I guess I'll wait until September 14th to give a formal presentation, I think. Sure. Okay.

Okay. So I will call on members of the public participating in person first, followed by remote participants. I don't have any speaker cards. And are there any remote speakers?

No, there are not.

All right. So unless the applicant has any other comments, then I'll close the public hearing and ask for a... motion from my colleagues. Commissioner Pine?

I'm ready with a motion, but I saw Commissioner Glacius's hand pop up, so I'd be prepared to yield him if he had something you wanted to say before the motion.

Thank you, Commissioner Pine, Chair, if I may. I just point of clarity and procedural question. If we were to open this up for public forum now, and then members of the public were allowed to speak to give their opinion, the three minutes on this, wouldn't they then have another opportunity to give them another three minutes? And the exact same thing?

Yes, because the whole item is being continued in that September 14th date.

Totally understood. That's why, as just a point of clarification, I guess my concern is, and I want to, this is my own clarification and also for all of us, that if we had gone forward and then we're not just speaking on the continuance, but we're actually presenting or allowing people to speak on the noticing, would that prevent their ability to then speak in the future?

on what was noticed i don't believe so no they would still have their three minutes okay thank you and this does not count as one of the limited number of meetings that correct this does not count as one of the limited number of meetings is that correct um technically this one would because it's we have a public hearing for it But this is, I think, only the second hearing for them. All right.

Okay.

I'm still ready with the question. Yeah. To note, I think the reason we ran into meeting count issues with the one previous with the item previously is because it also had to go to heritage preservation, which chewed up and may have even got which chewed up a meeting, but which is not something you would expect to see on a regular basis. Anyway, I move which what I believe to be alternative a non-listed alternative, so-called alternative four, which is to continue the item until September 14th per staff recommendation.

And Vice Chair Davis? I'll second the motion.

Yeah, I don't see a point in trying to proceed with the item against everybody's recommendation. Thank you.

Likewise, I'd just like to make a note to staff that we make sure that they know to have the sign up before the September 14th meeting so we don't have a repeat of that. But yes, I see no objection to continuing to September 14th. Thank you.

All right. Recording officer, please take the vote.

The motion passes with six yeses and Commissioner Segura absent.

All right. Now we can go back to agenda item number two, 26-0681. Proposed project is regarding a tree removal permit. Appeal of a decision by the Director of Community Development denying a tree removal permit.

one 32 inch diameter deodor deodor cedar tree in the front yard is there a staff presentation yes uh good evening honorable chair vice chair and members of the planning commission my name is gino victoria and i'm the staff planner for this item tonight i've prepared this presentation to provide an overview of the tree removal permit and the appeal So on April 28th, potting staff received a tree removal permit application without an arborist report to request for the removal of the Deodar cedar. It was submitted by the applicant, Michael Appio. The city arborist and public works supervisor, James Lemasters, performed a site visit on May 15th. and returned back to staff a inspection report on May 18th. Based on that report, staff issued a decision letter to deny the tree removal permit on May 20th. And on May 28th, the applicant, Mr. Appio, had filed the appeal of this decision. So here we have the site context. In the middle is the subject site with the two structures centered in this image. And circled in red is the tree requested for removal, the Deodar Cedar. Here are two images of the tree. On the left, this represents the planting location and showing the spacing in center of the front yard. And on the right, demonstrates the overall structure and health of the tree. So here's another image of the front yard. Dr. Appio has provided the following reasons to request for the appeal of the permit denial. First is the DNRC poses a potential hazard if a limb breaks, falls, and damages the house. In the appeal letter received by staff, Mr. Appio claims that a branch did fall a couple years ago during a heavy storm and led to damage of the house's gutters, corner beams, and led to the falling of a fence. Second reason stated is that it restricts reasonable use of the property because of the spread of the tree roots impacting soil quality and reducing the owner's ability to plant fruit trees and vegetables. In the appeal letter, Mr. Appiah states that his family has been growing fruits and vegetables on this property for generations. His family is a longtime residents of Sunnyvale. Third reason provided is that the theater cedar is not a native tree and was planted in the late 70s for screaming by his grandfather. This was prior to the subdivision of the neighborhood and leave the driveway had connected to Fremont. And final reason that was provided is that the tree has outgrown its useful landscape value due to its inappropriate species size and location relative to the existing structures on the property because it results in 25% of the soil being rendered unusable for gardening and planting fruits and vegetables. In response to the reasons provided by Mr. Appio, staff performed additional research into the matter and came up with the following reasons and responses. So ultimately, the denial of this permit was decided upon because the tree did not keep the criteria for the removal criteria found in something about Municipal Code 1994-060. So first is that the tree was not found to be diseased or damaged. Based on the inspection by Mr. LaMasters on May 15th, he found that the tree was healthy and without structural defects. Second, the tree does not represent a potential hazard to people, structures, or other trees. In a memo received by Mr. Rios, urban landscape manager, to planning staff, it was suggested that the industry best management practice to provide routine structural pruning via with periodic inspections are appropriate measures to reduce branch weight and to maintain clearance from nearby structures and to mitigate the potential for future limb failures. Next, we found that the tree does not restrict the owner's ability to enjoy the reasonable use or economic potential of the property. This property is zoned R0, which is a low density residential use, as the primary use. Because we found that this is such a large lot, there is a lot of space on the property to accommodate planting of fruit trees. So another thing that was researches that Theodar Cedars are commonly planted in California and are well adapted to the USDA plant hardiness zone 9b in which Sunnyvale is located in. They've been proven to be drought tolerant and are ultimately shown to be a suitable tree species within the Mediterranean climate of the Bay Area. For broader consideration, a tree provides significant environmental benefits as listed by Mr. Rios in the staff memo. That includes long-term carbon storage and annual carbon sequestration, stormwater interception, atmospheric cooling through shade and evapotranspiration, improved air quality, and natural habitat for wildlife. The tree is approximately 50 years old, as estimated by the planting date provided by Mr. Appio. And in this urban landscape, the Deodar Cedar has an expected life expectancy of 150 years. So ultimately, the benefits I mentioned in the previous slide can still be provided for another 100 years or so. So the benefits cannot be replicated by newly planted replacement trees of the minimum standard, which is a medium stature tree, a 24 inch box tree, and would not be replicated by the numerous fruit trees that the applicant intends to plant if tree removal is granted. Additionally, the preservation of the tree is consistent with the general plan. First is from chapter two of the general plan, the community vision, specifically citywide vision goal number two, attractive community, which is to maintain and enhance the appearance of Sunnyvale and to distinguish it from surrounding communities through the promotion of high quality architecture, the preservation of historic districts and structures, the maintenance of healthy urban forest and provision of abundant and attractive open space. It's also consistent with chapter three, land use and transportation. That includes policy LT 2.4 is to maintain and regularly review and update regulations and practices for the planting protection, removal, replacement, and long-term management of large trees on private property and city-owned golf courses and parks. Subsection to that is LT 2.4a, which is to strictly enforce chapters 13.16 city trees and 19.94 tree preservation to prevent unauthorized removal, irreversible damage, and pruning of large protected trees. Another policy that this is consistent with is policy LT 2.5 to recognize the value of protected trees and heritage landmark trees as defined in city ordinances to the legacy, character, and livability of the community by expanding the designation and protection of large signature and native trees on private property and insert city parks. That one's also followed by LT 2.5a, which is to expand community education on the value of trees and the benefits of tree planting and preservation. And LT 2.5c, which is to emphasize tree relocation, site redesign, or special construction provisions over removing and irreparably damaging healthy heritage landmark trees and protected trees. and to consider more than the economic value of a tree. With this information, staff presents three alternatives. Alternative one is to deny the appeal and uphold the decision of the Director of Community Development to deny the tree removal permit. Alternative two, to grant the appeal and approve the tree removal permit with the recommended conditions of approval. And alternative three, which is to grant the appeal and approve the tree removal permit with modified conditions of approval. With that staff recommendation is alternative number one to deny the appeal and uphold the decision of the director of community development to deny the tree removal permit based on the recommendation recommended findings for denial and attachment to. OK. And that concludes this presentation. The applicant, Michael Appio, is available in this Zoom call and would be open to questions.

Thank you. All right. Thank you for that presentation. I will now ask for questions from my colleagues, Vice Chair Davis.

Thank you, Chair. Thank you for the presentation. First thing, you said it's 100.5 inches in um diameter did you mean to say circumference yes yeah um it's a big tree but it's not eight feet across right so okay um and if i understand the if we were to approve the appeal of the recommended conditions of approval there are it would require three replacement trees

In this case, for single family dwellings, it would only require one replacement tree of a 24-inch box or three 15-gallon replacement trees.

So there's some flexibility. How big is 15 gallons?

The like.

So what is 15 gallons measuring is that the pot that you buy it in. Yes, yes. Okay. All right. So it's the size of three water jugs. Okay. And if I understand correctly of fruit trees would not qualify as replacements. No fruit trees and palm trees do not count. Okay. All right. I just want to make sure I was clear on that. Thank you. Commissioner pine.

Thank you chair, thank you staff for the presentation. So there was a previous application on the site back in 2011. Does staff have any clarity on to which of which if and obviously multiple are possible of the three findings it was able to make for the removal of the one tree back in 2011.

Staff did not find the inspection report from 2011.

Okay. Thought it was worth asking. Thank you.

And I just had a question about the, I think it was referred to in the, maybe somewhere in the presentation, but there are restrictions on how much an owner can trim a tree, right? They can't trim the branches completely off, for example, or there are restrictions on how much you can trim a tree.

Yes, I believe the general guideline is best management practices to maintain like a robustness and health of the tree. And with other considerations such as not trimming off too much, which would say create an imbalance.

Okay. Commissioner for going

I might have missed it, but is there anything that shows how close the tree is to the foundation or if there's any water lines near there or power lines near the tree?

It was not observed during the inspection, but perhaps the applicant, Mr. Appio, can answer to that.

Okay, I'll let the applicant respond to that.

I am, I'm here. I don't know. Do I need to have the floor to speak or do I, if you answer me, you know, are you asking me a question?

We'll open the public hearing in just after we've heard from all the commissioners. Commissioner Iglesias.

Thanks, Chair. Quick question. So regarding the code 19.94.030, under section C, number 8, the other justification can be any other information the director of community development finds pertinent to the application. Can you give some examples of what that might be?

Thank you.

I think it would be the beginning of subsection C discusses the restrictions on the owner's ability to enjoy reasonable use or economic potential of the property or unreasonable restrictions on the adjoining property owner's use. So I think it could be any other factors that aren't listed in subsections C1 through 7. that aren't specifically listed in those, but relate to reasonable use, economic potential, impact to the neighbor.

Okay, that one, I appreciate that. I'm a little bit nervous just about that because to me, it's a bit of a catch-all where as I interpret it, it would allow the city to find something that justifies, but not necessarily the resident. And if we were to have some form of precedent of specific examples that have been used, that would help me better understand a consistent interpretation of that. Thank you.

OK. I will go ahead and open the public hearing on this specific item. Please submit a speaker card to the recording officer. Raise your digital hand now. or dial star nine on a telephone to indicate you wish to speak. If there is an applicant presentation, 10 minutes is provided at the beginning of the public hearing to address the planning commission, along with five minutes at the end of the public hearing. Is there an applicant presentation?

I am here. I do not have a presentation, but I would love to speak for a minute for sure.

Go ahead.

So as you know, you guys have seen the photos of this tree. It's by no means a scenic tree. It's by no means a heritage landmark tree like they talk about in LT 2.8. It's not a native species, as you heard from Gino. We've had to cut this tree multiple times in the past, and that's why it looks how it is now. I am aware of the 15% reasonable cut rules with removing a tree and all that. Just the criteria for removing these trees on your posted paper on the internet, it's that number three that has the bullet points that follow it. Having the city decide what's a reasonable use of your landscape and land, it seems that they just called it a healthy tree. There's nothing beyond that that they denied this permit because it's a healthy tree, cool. so i don't see how the reasonable use of growing a garden it wouldn't all be fruit trees it could be other things i don't see how you don't have the right to you know landscape in a way that you would like to obviously within reason you know we're not farming but uh You're not having to crowd all your garden in one area, or just not having to crowd things into one corner. As you can see that tree, I mean, it drops needles all over. It's a mess. It slowly makes the soil more acidic. Nothing grows underneath it. I couldn't even put grass underneath it. It's just dusty mess. So yeah, I mean, my family's been here since 1950. We're one of the original Sunnyvale families. It was apricot orchard. All of this area originally was, and we still can dry our fruit. And you know, it's like a family thing. We pass that down. My great grandfather and my grandpa and my dad and me, and then I'm trying to pass this on to my younger daughter as well. Um, the tree is in good condition, but it restricts the ability to, for reasonable use or economic potential. I don't see how that wouldn't apply to exactly what this is. Um, yeah it's just i wrote do you guys have what i submitted to gino i kind of submitted an official letter is that something that you guys had access to yes we have that yes so you you guys have read that so um you guys asked a question about distance from the foundation um this tree is about 14 feet from the foundation I'm in the, you guys are calling it the front of the house. It's really the side of the house. Um, so there's that, but these roots I've, I've planted stuff, you know, 25 feet away from this tree. And I've found roots from this tree as far as 25 feet away. So they're definitely under there. Do I have any, you know, photographical evidence of anything like that? No, I do not. Um, The risks of limbs falling, we've had that incidence once before it was cut back heavily. I have had it fall on the fence and knock part of the house off. We did have to do repairs. So yeah, I just feel like this tree has zero landscape value. our whole you know what is now our front yard is a dirt with this one cedar tree that's a non-native species if it's a redwood i would understand keeping it it just doesn't make sense to be forced to be told what is reasonable use of what you can enjoy. And then the economic part, I'm not sure exactly what they're getting to in wording of that law, but growing your own fruits and vegetables and having that right to be able to do that is if that doesn't apply to economic, I don't know how it doesn't. In section 15304, In that because we are in our environmental review of 15304 class for at the bottom of that excerpt in the definition of that law. It says categorical exemption which covers the minor public or private altercations in the condition of land water vegetation imagine the vegetation parts what we're talking about. These activities must not involve the removal of a healthy mature tree, except for. Forestry or agricultural purposes. I mean, if we're using it for food and it's something we're doing, I don't see how that's not in the definition of agricultural purposes just for personal use. So that's all I have. You guys do have alternate. It was one, two, or three. I saw the alternate. number two or three we're open for being told to plant you know a certain box tree in an area of the yard that suffices to make the sunnyville you know happy and follow all that but number one the pure denial just seems seems unjust for what we're doing here that's all i have for you guys thank you all right thank you um

Uh, I don't have any, uh, speaker cards, uh, recording officer. Do we have any remote participants? No, uh, commissioner pine.

Thank you, Chair. A couple questions for the applicant. In the record, we have that there was a previous tree, tree removal permit action on this property in 2011. And the application to approve this removal of this tree specifically was denied. Can you speak to what has changed since 2011?

I was out. At that moment, I was actually in college, not in the area. What has changed from that moment? Are you talking about in terms of what we want to do with the yard? Why now? I'm looking at this from a very legalistic perspective.

We had a decision on this site in 2011 that was that was to deny removal of the tree. We are being asked today in 2026 to essentially over to make the opposite decision. Basically, what are the factors we should consider in saying, and respect i i would like to respect the 2011 president but i also want to be open to saying hi that was 15 years ago so basically what i'm looking at looking for is what's like what fat what has changed in the past 15 years that would have led to an alteration in the factors to approve this so one thing that i did mention on that we had those crazy storms a couple years ago

That is when I had a couple of branches are fairly large come down from that tree. And if you guys see in that picture, we have a brand new fence up now because of that. But yeah, knock down the fence. We're lucky it didn't hit a bedroom, which right there in that corner of the house is the main master bedroom. So that was one of the reasons that we're like, OK, so if this if something falls on our house, you know, it's. Whose fault will it be? It won't be the city's fault for denying this if that happens. We're just trying to mitigate these. Obviously, you don't want that, right? Other things is just we're trying to up the look of the yard and improve what we have going on in our front yard there.

Thank you. And the other question I had is there's been discussion about native species versus non-native species. Would the trees you're proposing to replace this with be native species?

If you had the, there's alternatives that it looks like you're going to possibly think about. Two and three, I believe, would be under the city guidelines, right? The box trees would most likely be a species that the city would like. Um, the trees I would want to plant would probably be some fruit trees and there'd probably be some organic garden area in between that.

Yeah, I was just asking because the list of recommended trees from the city includes a large number of non-native species. This is something I have been complaining about for several years.

I would love to, if one of the alternatives was to put a 24 box tree of native species, we would be happy to do that.

Yeah, just, okay, thank you.

Vice Chair Davis. uh thank you chair um thank you mr rapio um i i live fairly close to here so i came um I went by your property yesterday and I noticed that you have a large section where it looked like you're growing wildflowers. It was well delineated. I guess my question is then, if you're looking to grow produce, to grow food there, Is there something that allows you to grow wildflowers right there, but not, uh, whatever vegetables you want to grow?

So in a right, I guess you're right there, quote unquote, that's the front of the house. That's not underneath that tree at all. That's like, you know, 20, 30, more than that, really probably like 70 feet away from there. The shade and the needles dropping the acidic, uh, it slowly makes the soil more acidic. Yeah. Nothing will grow under that tree. Would love to put the flowers out there. right and have them grow because that's they look nice we've uh i put those in every spring and they usually last until um the start of the fall but yes that's if that's yeah the answer to your question is those wouldn't grow under the tree oh no i guess the question is is um what's keeping you from from growing food there instead of flowers uh i guess the front of the yard like to keep that for you guys aesthetics

Okay, okay, understood. This is my only question. Thank you.

Commissioner Shukla?

Thank you. Um, I have a question about, um, about the benefits of that tree had given to you in last few years, because I'm just thinking because it's in the direction where sun goes Southwest. So your bedroom is probably very, very cool in the summertime because the shades of the tree, have you noticed that or.

No, not really. The way the house is laid out, the sun rises in the east. No sun's coming in through the windows on the east of the house. It's setting windows on the west of the house. There's not much shade in making it much cooler in an old house like this with no air conditioning.

okay because i i feel that i mean i have um kind of similar direction my houses but it's not the same cedar trees they are a little bit a little bit um not that tall but it does make uh lots of difference in time when in summer but you don't have windows on that side too so you don't get to see the trees too because you haven't really i i feel that if you i know this is it's nothing to do with just the question that if you had a window and if you're enjoying the tree and maybe maybe you could you could have a different relationship with the tree but anyway that's uh that's not the question i want to ask about it but i feel that i just want to bring this out that this is a pretty good um decent i mean what i researched that native native americans now believe that this is one of the uh the trees they considered like you know kind of healing tree or ancient tree i was just researching and i found out and i know that it can be a landmark for a lot of people in your neighborhood because when they walk They can, I mean, it's kind of sometimes I have trees in my neighborhood and I'm like always like enjoying trees further away. So I think it's like, it's like a historical resource we have for the houses. And this is like natural resource for the neighborhood. But, but I can't, I know that you want to do the land, but yeah, go ahead. You were saying something.

No, no. the great opinions. I appreciate hearing all that. I'm out in my yard a lot and I have way more people stop and talk to me about the fruit trees they used to have when they lived here in the 80s and how they remember this apricot orchard. And I help my neighbors prune their trees and help them out when they got issues with their fig trees or whatever they may have. But definitely in terms of of landmarks um people come by our house because they know it from you know a long time ago and uh and like to talk about the fruit trees and what sunnyvale's heritage is really is but that's not related to any opinions on what cedars are but just in terms of our landmark of our our property itself okay thank you commissioner iglesias

you chair um i had a couple clarifying questions for uh staff and the um arborist um first was for section c uh the tree is basically sound condition but or 60 owner's ability to enjoy the reasonable use my question there is at what point is i mean we can see the pictures and when i look online i see that uh the tree roots grow on average around 12 inches deep and they they steal resources and water and And they, the needles are acidic and which prevents other things from growing. At what point would that be crossing the threshold of like reasonable use?

I think it might be site by site. When we look at this site, it is a larger site and there are other areas on the property where gardening can also occur. There's a balance, I think, between what the city prioritizes as protected trees and the broader community benefits for that versus individual property where There may be some property owner interest and certain use, certain landscaping goals. But I think part of the reasons for having this process, including the appeal process, is to look at that and establish what is that reasonableness. And given the facts that we have, given the general plan policies, given the city's zoning code about heritage preservation, and just overall the community's interest in preserving older trees that are healthy, staff has weighed that and provided more weight on these broader considerations, given the city's policies and the zoning code requirements.

I think I really appreciate that answer. When I look at this particular situation, the way that I observe it is that the trees I mean, living in Sunnyvale, let me just say it differently. Living in Sunnyvale in my backyard, I can probably grow almost anything. In fact, I have to stop things from growing constantly. Like tomatoes take over, strawberries take over, peach tree that I thought was dead came back. Like our soil here is just incredible with what we can grow. So to see a space that has like... that's effectively barren around it that just seems very inconsistent with what I'm used to experiencing. And then my other question, that was my statement, and then my other question I had was regarding subsection 5 of C, which was current and future visual screening potential. Now, help me understand, does that mean that the tree is providing too much screening, isn't providing screening. I just want to make sure that I understand also how to interpret that.

I think given this tree's location, that's probably not fully applicable. I can see that section being applicable is if you have an addition and you have trees that are two-story homes and you have existing trees that provide that screening value. But given this location in the front yard, there's really nothing that I can think of in this context for that screening value.

so my only challenge with understanding it that way is the other ones are all about a reason to remove and if it's a second story house that screening would be beneficial and that would be a reason to keep versus versus a reason to remove and so for instance topography of the land um on action on water retention approximate age of the tree relative to its lifespan the potential effect of removal and soil erosion so there's all reasons justifications to remove so this is that's why when I see the current future visual screening is it that this doesn't have the potential to screen. That's why I'm not really certain that that makes sense, at least to me.

I know. I think it's hard because this is written in a non-intuitive way. But I think you hit it exactly. In terms of the screening potential, the future screening, the value of that, what is it screening? I think in this case, That's why I was saying, you know, it probably isn't really applicable in this situation. You know, it's not that you have to meet all of these requirements.

I agree. Okay.

Thank you. Commissioner Shukla, did you have another question?

I have a question for staff actually. If the client wants to have an ADU there, then the situation changes, correct?

Correct. State law trumps local law, you know, local tree preservation law on that.

Yes, so exactly. So that's compared to like growing fruit trees compared to the like our agriculture land or growing some wheat or something. And we can't probably do that in the front yard, growing like grain or something.

I wouldn't be able to speak to that. I'm sorry.

Just, just, okay. Thank you.

Okay, still I have no speaker cards. Recording officer, are there any online, any remote speakers?

No, there are not.

All right. Let's see, the applicant, if the applicant wants, has five minutes for any further comments.

um i mean sunnyville really promotes this heritage heritage lifestyle with our heritage parks and heritage orchards and and all this and i still feel like we should have the right to do within reason um you know grow some fruit trees and would be happy to go to some of these alternative judgments they would include a box trees you know one or two or whatever it may be um could be native species um just yeah overall this this this tree has zero landscape value due to its location species and size and like like you guys have heard so i don't i don't need to speak anymore about i believe everyone has heard what i needed to say i hope that you guys approve of the removal of this tree and an ultimate alternative judgment is great thank you thank you

I will now close the public hearing.

Before you close the public hearing, I see Commissioner Glacius has his hand up.

Sorry, Commissioner Glacius. All right, I'll close the public hearing and now ask for a motion from my colleagues.

THANK YOU CHAIR THIS ISN'T A MOTION THIS IS PART OF MY DISCUSSION BUT ACTUALLY ONE POINT OF CLARIFICATION I HAVE THAT COMMISSIONER PINE ACTUALLY STIRRED WAS SO THIS HAS BEEN BROUGHT BEFORE FOR A DECISION IF WE WERE TO VOTE ON TODAY WHAT WOULD HAPPEN IF WE WERE TO APPROVE IT WHAT WOULD BE WHAT WOULD BE THE NEXT STEPS FOR IT IT GOES FORWARD THEY CAN DO IT AND IF WE DENY IT WHAT'S NEXT STEP

Sorry, save the question.

I want to make sure that I understand procedurally. So if we say we're to deny it, what could the applicant do?

I think the appeal stops here, right? Yeah, it stops here at Planning Commission.

Okay. But it was before the, did you go to Planning Commission back in 2011? Or was that only just at the department level that it was? Do you know? yeah uh for the 2011 permit um the decision on denial was not appealed so it stayed with the staff level so so i guess my question is are we by voting on this again are we circumventing our own process because if we were to deny it today in order to come back in 10 years would that be something to be legitimately brought back in front of us and they could come back in 10 years and apply for the same thing i thought that it was but it was if there's So isn't that effectively appealing it though?

Can you say that again?

Isn't that effectively appealing it?

No. I mean, 10 years, sometimes a tree can change.

Okay.

Fair point. It's true.

Okay.

Thank you. Commissioner Pine.

Thank you. Yeah, kind of further to that question. What is there an actual required cool down period between apple tree removal permits for a on a given tree?

No.

Okay, thank you.

uh so i'm still open to a motion from my colleagues uh uh commissioner glacies thank you chair um and i'm gonna go ahead and share my

position without making a motion quite yet to maybe stir some discussion. I do think that as I read the requirements to allow for a tree removal permit, there are elements that are flexible in there to me. I think that there's space for it to be interpreted either way. And in general, I think that when there is that level of flexibility, my inclination is to support the homeowner, in this instance, I love trees, Sunnyvale loves trees. And I think that I would be in a different, I have a different perspective if this was a native tree. I think I'd also have a different perspective if I didn't think that this is somewhat of a bully of a tree, if I'm like, not to, it sounds ridiculous, but in the sense that like, if it's something that doesn't allow other things to grow, I don't think that that's something that necessarily is consistent with the type of tree that it's like it's it's not the homeowners not able to enjoy their property um if they can't if the only thing they can effectively put out there is rock in that space that to me is I don't think that that's necessarily uh consistent with our promise of being able to of guaranteeing people's right to have a reasonable use and enjoyment of the property

Vice Chair Davis?

Yeah, just continuing the discussion. I live, I don't know, probably less than half a mile from the applicant. And I have protected trees on my property as well. My lot's actually one of the larger ones in the neighborhood, and yet it's less than half the size of this lot. And perhaps it's just my property, but all the trees in this neighborhood seem to be bullies. You can't grow anything under any of the trees that are prevalent in the neighborhood. I don't know if it's our particular soil, if it was the species that were chosen. I don't have this particular species in my yard. The three trees are all deciduous trees. and I can't get anything to grow. And this includes the roots actually going under my driveway. And so I couldn't grow grass in my front yard without going to extreme golf course measures. It's interesting there was grass there when I bought my house. I think that was staging by the real estate agent and it died three months later. So I've had to personally go in a completely different direction with the landscaping in my yard. And just making peace with the, I have these trees, Sunnyvale loves trees. Similarly with limbs falling down, that's what happens with trees. I've been fortunate that they haven't fallen onto the house, but they've fallen onto my cars. Right. And so I just personally rack it up to the cost of homeownership in owning a single family home is let's be blunt, is luxurious. And if you don't want to deal with stuff like that, then maybe one of the seemingly infinite number of townhomes that are being built in this city with an HOA would be better for you. So I'm not very sympathetic to the... I guess, normal enjoyment of your property argument. Though emotionally, I really, really want to be. I personally think our tree ordinance is a little bit too strict. And there should be ways to remove trees, especially because your insurance doesn't like them. There should be more ways. But it's a quasi-judicial body. So yeah, I'm in a position where I can't make a motion where I couldn't make a motion to accept the appeal. Um, unless I hear a very compelling argument, um, convincing argument from one of my colleagues. So that's where I stand right now.

Uh, commissioner for Goni.

So, um, I do I do a lot of yard work at my house. So a lot of empathy for when you're trying to do your yard and you want to have it easy to clean up and you know, you don't want to have leaves everywhere and stuff. I totally get that and understand with regards to pine needles because they are very acidic. So As a homeowner, some of us pay quite a bit in property tax. And I believe that we should be allowed to, if the situation arises and it's appropriate, to make adjustments to our property. The ironic thing is if the applicant, I think it was brought up by another commissioner, that if the applicant was to do an ADU, this would be an issue, which is very ironic. So it's really not, it's interesting if you think about that, Sophie. I would tend to allow to support this in that If the applicant wants to put grass down there and do whatever, that should be their privilege to owning that house. And if they want to put fruit trees there, that's fine too. But yes, the tree is there, it's serving a purpose, but there's other trees in the city too. But I would just tend to support this because I think it makes sense to me in the fact that if the applicant is willing to incur the cost, the time and the labor to do it, and they wanna make their yard look nice, I mean, and enjoy it. That's part of having a house, I believe, is enjoying your property and being out there. So it's just my perspective on it, but thank you.

Commissioner Shukla.

Yeah, I think I'm kind of torn, too. I remember that if the PG&E electrical wires go above the tree, then they cut your tree. And sometimes, because they have to keep coming back so much often, like some fast-growing trees, they even offer to completely cut your redwood. Not redwood, but Italian cypress. and it's like you they shared the cost with the homeowner and then they cut your tree so i am like i think if it's um utilities if it obstructs the utilities to provide the other neighbor neighbors then we allow them to cut the trees and we have a street trees which is helpful for the neighbors and all. But we do have a general policies and I'm a lover of trees and I have worked in the environmental committee where we protected trees beyond 12 inch in circumference. whether whatever the species they are they are heritage tree or not necessarily it has to be native if they are beautiful looking tree or they are larger than 12 inches then they are native trees i mean they are like heritage trees so our city i don't think it's very stringent um audience about the trees its only thing is this the location of the tree is a little bit here uh is like um not serving purpose for their house so i think i'm just looking at them at uh if that tree is going to obstruct the whole let's say 30 feet around the property uh what they can do i mean of course they can plant fruit trees in the containers but that's very expensive and you have to maintain it and all but i i think they really need to have either the landscape architect or landscape gardener designer and do something and include that in the tree if we are going to deny the appeal so I don't know it's like if somebody makes a motion I think I'm willing to move with uh move and like grant them with conditions with two like larger trees rather than just 24 inch box tree so that's what i would say it's like modified conditions but that's my just suggestions commissioner pine thank you i

was prepared to make a motion. I suspect the motion I have made is unlikely to pass, so I'm tempted to withhold it because I'm, but I will, because I feel like we've done a lot of discussing without a motion, I'd frankly prefer we actually discuss with a motion on the floor. So, I'm actually going to put my hand down, mostly because I think the motion I make does not have four votes at the moment. And I'll defer to somebody who would. Thank you.

Missioner Galicius. All right, I'm ready to make a motion.

Okay, I will move option excuse me alternative to grant appeal and approve the tree removal permit based on findings that the post removal meets one of the standards which i'll explain in a second and subject to recommended approval conditions of approval attachment three. So, for the particular. portion, I think it qualifies under section C, the tree is basically sound condition, but restricts the owner's ability to enjoy the reasonable use. And then subsection seven, the tree has outgrown its useful perfect landscape value due to its inappropriate species, size, and location relative to the existing structures on the property. I think that it's clear that the information that's available online for this- Point of order. Sorry, that's my motion.

Discussion lacking a second.

All right, do we have a second for this motion? Commissioner Pyne?

Second for purposes of discussion.

OK. Commissioner Glacius?

Thank you, Commissioner Pyne. So for the purpose of discussion, what's been presented to us is a tree that may at one point have been useful to the property, especially when we hear about when it was originally planted there and what the property was originally used for, that being in the 70s. Now I think that what's been clear to us is that it's inappropriate in the sense that it prevents other use of the property. What's curious is the tree if there were actually other trees on the property now underneath it they would almost certainly be impacted the inability to grow a fruit tree and then it would qualify under section b which is the tree represents potential hazard to other trees so i i think that there is an element of catch-22 but its own by its own metrics i think it qualifies under section c and uh subsection seven

um commissioner pine to your second sure uh i seconded for per mostly for discussion i was curious if someone was going to jump in with any friendly amendments on alternative three i did for on the conditions of approval given some comments from other commissioners but uh and i will say that i'd be amenable to supporting them however i'm actually not inclined to support this motion because i I am unable to make the finding under 19.94.060 because I think the words relative to the existing structures on the property have weight in that clause. And I will also note that in 20 and I think what's bothering me a lot about the situation is that we did we not we us but we the city of Sunnyvale did deny the application on the site in 2011 so to me to grant this we kind we were either saying a we got it wrong in 2011 and i don't think there's evidence on the record to support that and or b this situation has changed since 2011 and i'm not convinced that honestly anything in clause c has really changed much since 2011 i don't know that it's outgrown its landscape value since then i the reason i've been kind of hesitant to put my mic up is because I do think there's a clause B argument here, given the limbs. But we also do have contrasting evidence on the record about that it could be managed via proper pruning. And there's also been discussion about there's to a real extent almost any mature tree is going to represent a potential hazard to people structures or other trees it's difficult like just because trees have limbs and they fall like you i don't i think we i don't want to read be so broadly that it could be used to essentially grant almost any true removal permit that being said i actually do I am broadly sympathetic to the points being made that the tree removal permit ordinance is actually rather stringent and could use some loosening. I am actually quite sympathetic. Where I've been a little stuck is I'm actually quite sympathetic to the moral argument here that this isn't a great fit and we should probably do something about it. Well, we do something about it. I mean, the applicant be able to do something about it. I do think we are charged with interpreting the ordinance as written, and I'm not able to make any of the required findings by this ordinance. I will say that also to the ADU point that's been made, the state has made a determination that due to the severity of the housing crisis, the need to build additional housing overweighs any of the other factors in retaining trees, et cetera, et cetera. That is essentially a termination by the people of California as expressed in the state legislature. That to my mind is actually completely irrelevant to this discussion tonight. We're not proposing building more housing on the site. improved landscaping on the site. We, as either a city or a state, have not made a determination to prioritize improved landscaping over tree preservation. Well, to the extent we've made a discussion about improved landscaping versus tree retention, we are not, as a state, having a landscaping crisis anywhere to the extent that we are having a housing crisis. So I regret the ADU argument essentially as irrelevant. Thank you. I'm going to urge a no vote on this motion, but I'm also going to ask Steph because, and I know we haven't heard from everybody yet in the discussion, but just to put it out there, what happens if we deadlock? What happens if nothing can get four votes? There are six commissioners present.

A tie is no action.

What would that mean in this case? Because we are the final point of decision.

Probably we would say continue to a meeting where you do have seven.

Okay. I was going to potentially suggest that, but I wanted to make sure it wouldn't break something horrific. Thank you.

by chair davis uh thank you chair um like commissioner pine i i just can't make the findings um so on item c um reasonable use or economic potential of the property whoever planted the tree knew what they were doing they put it in a spot where it's not going to impact the neighbors at all. The neighbor question is out of it. The property is so large, and it's facing the street. I can't squint hard enough to find that you can't reasonably enjoy the property. Everything that's been discussed that they want to do, there's adequate space on other parts of the property to do. saying that the tree has outgrown its useful landscape value due to its inappropriate species size and location. It's a drought tolerant. It's well adapted to our climate. Yes, it's not native. Neither are we, correct? Our species is not native here either. It's a gorgeous, gorgeous tree if you see it up in person. Now, I understand that if I was living with it and it was keeping me from doing what I wanted to do, it would get ugly to me. But I think from an outside perspective, it's a gorgeous tree. Not too far away from there, there's a metasequoia tree. in the same neighborhood that has an enhanced protected status. And honestly, this tree, after 50-something years, has kind of achieved the same kind of beauty that this metasequoia has. So ideologically, it's your property. You should be able to do what you want as long as you're not hurting your neighbors. But I'm here to uphold the city code as it's written. And as it's written, I just can't make the necessary findings. I'll tell you, we had one of these before for an ornamental, more nuisance species. And the killer condition for me was that they were struggling to get a homeowner's insurance Okay, that to me crosses a threshold that the tree is economically, it's economically hurting the value of your property if you can't get insurance. But we haven't had any evidence like that. Basically what we've been told is, you know, I wanna grow fruit facing, but it'd be facing the street. So it's just, yeah, I just can't make that leap. Thank you.

Chair, can I clarify my prior advice? So if you do vote tonight and it's tied three to three, that decision would be no action and the staff determination to deny the permit would stand. You could also continue it if you don't want to have a tie vote with no action. Any questions about that?

I have a parliamentary inquiry on that actually. Okay, so a three to three vote is not an action. On a three to three voting motion does not carry. It is my understanding that it is in order following a motion that does not carry to make subsequent motions.

Can you say that again?

What I'm proposing is that we vote on motion. What I'm proposing, and I believe it would be in order, so correct me on this if I'm wrong, is we do actually vote on an actual alternative. And if it's clear that if a motion to take an alternative does not carry, I believe it would then be in order to vote. Since we have not passed a motion and the item would still be before us, we could then have another motion afterwards, that would be a motion to continue.

Okay.

I'm suggesting, and again, I don't, and again, this is, I'm not even saying this is going to happen. Commissioners, Chair Cerrone has not raised his mic yet. Like I don't, I'm just, so maybe this just, so maybe there, and we haven't had, we have had commissioners not kind of have opinions, but not speak directly in motion. So I'm not even saying it's going to be a 3-3 vote, but like if, What I'm saying, like if when I, the course of action I'm saying is let's say this motion goes three, three. Okay. So if like, if it goes, okay, so there's three things that could happen. The motion goes, well, there's multiple things that could, there's a lot of things that could happen, but okay. So let's say this motion goes three, three, the motion does not pass because it fails to receive a majority. Is it my understanding? Correct. That it would then be in order to offer subsequent motions. The question is put on alternative two. There are three yes votes, three no votes, and the motion does not pass because it fails to receive a majority. Would it then be in order to offer a subsequent motion?

So the motion on the table would be to grant the appeal.

The motion on the table is alternative two.

To grant the appeal. If you determine not to grant the appeal...

Well, we would not have made a final determination. We would have built on alternative two. We could still adopt a different alternative.

I think that that's right, because then you could propose something different along with alternative three.

Or alternative four, which would be a continuance.

Yes, which would be alternative three.

Sure. The point is, we don't have to tie ourselves into parliamentary knots trying to take this motion off the table if we're worried about it going 3-3.

I mean, I think my point to your original question was if you take a vote and it's three to three, that's not taking an action. So if your vote is three to three on alternative one, then the staff determination would stand.

Right. I'm just saying we don't get stuck. If there's three to three, we can still do something afterwards. If we can get something else that has more than three votes.

Commissioner Klein, sorry, Commissioner Pohn, just to clarify, you're looking to see essentially a show of hands vote before a formal action is taken?

No, that's not what I'm trying to do. What I'm trying to do is say, if this goes 3-3, I want to move a continuance afterwards, is what I want to do. yeah you're looking to see yeah if there's a three three vote without making that a formal vote i do want to make that a formal vote i want to take the vote on the motion and if it passes it passes and if it fails two to four then we vote on then i'll move alternative one if it fails three three i want to move up i want to move a continuance

I think if you take a vote, your vote is your vote. And if it's a tie, that is no action.

Right. But I'm saying we don't have to move on from this item after the first vote.

I think that you do.

No, because, okay, I'll put, but I'll, I don't agree because if the alternative, if this was, let's say this failed 2-4, would it not be in order to, I think it would be clearly in order to move alternative one if this failed 2-4.

If you're well, if your motion fails, that's a different question.

Is it not a failed vote under Sturgis? Is it not?

A tied vote is an action and the action is that no decision was made.

Okay. I would respectfully request that you cite the provision of Sturgis where it says this, because I disagree.

You're saying two, four and three, three, in either case, the motion fails. And, uh, you're saying those are different.

A tie vote is, the action wasn't taken.

It is my understanding of general parliamentary law that a tie vote is considered to have failed on the tie. I would respectfully request a direct citation if I'm wrong about this. Because frankly, this is... I would be attempt, because frankly, I fairly strongly disagree. And if it's not a direct citation, I would be prepared to ask. Well, this isn't actually before the body yet, properly before us, because we haven't actually gotten to that point in the tree, but.

No, I can look at it while they're talking. It's fine.

I apologize. I apologize to everybody. I thought this was going to be very straightforward.

Uh, let's see, can we continue the comments and come back to this before we take a vote? Sure. Uh, commissioner Iglesias.

Thank you. I'll go ahead and what I would ask all my commissioners to do before we vote is to go in your computer, if you have it, and go to 1365 Fisher Hawk Drive. Google Earth, Google Maps has generously taken three pictures over the last several years. This is in addition to the pictures that have been given to us already for this presentation. What you'll notice from 2019, 2020, 2022 is the picture from Google Maps of this property. In the front of it is abstract death. And it sounds like I'm being dramatic, but there is dirt with nothing in it. in all four times. So now I would ask you before you vote, thinking of the clause that says section C, this tree is basically sound condition, but restricts the owner's ability to enjoy the reasonable use or economic potential. So my statement has thus far been reasonable use. But also, if you look and I would ask all of the commissioners to look, look to see what you see of that. I think of the curb appeal. Think about the ability that that's going to have on a homeowner, not only having pride of their property, but even being able to sell it that very clearly. And then if you want on Google Earth, you can then scan around, look at the opposite side of the street, which has is lush like the the property. looks it looks out of place as I as I screen around. I see other people that have wood chips and other plants, but I do not believe that there's just no evidence to me that there's ever been a point in period, a period of time that this has been able that this hasn't had this impact on this property.

All right. Let me go ahead and comment on this. I am inclined to oppose the motion. There are, as we have seen, there are many ways to remove a tree, a long list of things. And it is almost extraordinary in my reading to find a tree that so clearly does not meet any of the criteria for removing the tree. It almost feels to me like a test case put in front of the commission to see if we uphold our municipal law with respect to removal of trees. I definitely sympathize with the owner. I have a similar tree. uh, over my yard, which happens to be in my neighbor's yard, right on the property line. It is much bigger than this tree. And there is a stretch of, uh, land there that I, uh, uh, cannot grow anything on because of the needles just as described, but that's, that's the nature of a tree like this. And, um, I think if we say that the presence of pine needles or needles under a tree is a justification for removal, I think we're opening a broad can of worms here that we'll see a lot of trees taken down. I mean, under a tree, I also have a large eucalyptus tree in my backyard, and it's hard to grow something under that. That's kind of... way trees uh operate and uh and the roots are an absolutely a problem but again that's that's what trees do and and this tree which is next that i'm describing next to my driveway if it gets windy i move my car because it is a very big tree one of those limbs would take out my uh my car, maybe both cars entirely. So I will oppose this motion. And I mean, it's been mentioned, certainly in Sunnyvale, if we build, as we'll see later, if we're building anything and a tree gets in the way, regardless of how big it is or protected it is, the tree goes. Uh, but, uh, but we don't have that here. Um, so, um, and maybe we should change the law, but as I read the law, this, uh, tree, uh, does not meet the criteria to be removed. So, um, do we want to clarify the parliamentary issues? before we take a vote?

A tie vote is a no-mixing. You could continue voting, but if you were to be deadlocked, I think then the motion has to, then you can get motions. A tie vote is a motion.

I agree. My point was only that it does not stop us from acting on further motions.

I guess my point was if you continue in a deadlocked position, Um, the staff decision stands.

Yes, I, I agree with that. It's just my intention if this is 33 ways to offer a a continuance and I hope the continuance would not be deadlocked.

Should take it would make it clear.

That's fine. The argument was that this was going to preclude further action. I would have. asked my colleagues to vote against, even if they thought, even if they were supportive in order to avoid that. But I don't think that's necessary. Thank you.

All right. Recording officer, please take a vote.

Can we, for the record, can we restate the motion with the findings? Because we do need clear findings for this.

It's alternative to. which is grant the appeal and approve the tree removal permit based on finding that the proposed removal meets one of the standards in SMC 19.94.060 and subject to the recommended conditions of approval in attachment three and the particulars I was citing in section 19. dot 94.060 with section c um subsection seven which the tree has outgrown its useful landscape value to say in its inappropriate species size and location relative to the existing structure of the property so this motion would up hold the appeal and allow the tree to be removed correct

Okay, recording officer, please take a vote.

The motion fails with four nos and two yeses from Commissioners Fagoni and Iglesias. Commissioner Segura is absent.

Commissioner Pine.

Thank you, Chair. Before I make an, I'm prepared to offer another motion, but I would actually, be prepared to yield to Commissioner Shukla because Commissioner Shukla, I'm not sure, I think you are the deciding vote on whether we have four votes to do something tonight. So I'd be interested to hear what you'd be interested in doing.

Can I speak something?

I yield to Commissioner Chukwu.

Oh, thank you. I was questioning both sides because I was, I was giving the applicant some ideas that they, if there is a, there is a PG&E is going, yes, you can cut or you feed, there is ADU, you can do it, but you can also have contained, you can have the hire the landscape architect and design around the tree. So I do, I want something like I would go with the staff if, because I don't have that much power to just grant, or I don't have even that many ideas to give, make a motion to go strongly to cut the tree. So I was in the middle and I think I would, I'm going, I do a, agree that the property owner has right, but they have many options. And I've seen that it's like they haven't made the relationship with the tree. They haven't enjoyed the tree. They haven't explored fully that whole site. So I am. So that's what I came. Thank you.

Thank you. Okay. In that case, I am going to move alternative one, deny the appeal and uphold the decision of the director of community development to deny the true will parent based on the recommendings findings for denial and attachment to.

vice chair davis yeah i kind of regretfully seconded yeah thank you i think i've said all i have to say on this at this point uh likewise um this is one of these situations where your personal values conflict with the law and so we're up here to uphold the law um And yeah, so I urge my commissioners to vote for this motion. Thank you.

All right. And to be clear, now this motion is to deny the appeal, which would prevent the tree from being removed.

uh commissioner iglesias hey chair um i will not be supporting it um i i don't agree with the interpretation uh that we our hands are tied i do agree that uh that we are a quasi-judicial organization um but i do looking at the again at the code it is written in a way that is don't know if it's deliberately vague but i think it's probably the reason the reason the commission exists is for the exact purpose of the interpretation of something that's vague as this um and two the staff's point that when asking the question what qualifies as as reasonable like that that ultimately does come uh up to us and and the last thing i would i would just urge my fellow commissioners are honest if if their front yard is effectively impaired I think that that has both impacts their reasonable enjoyment of the property as well as the economic value of the property.

Thank you. Commissioner Pine. I have to lower. Vice Chair Davis. All right, well, I'll be supporting the motion because as, you know, my reading of the law indicates that there is not justification for removing this tree. And that's, I think, well, I think we've had enough comments about this, so.

uh recording officer please take the vote the motion passes with four yeses and commissioners fogoni and iglesias voting no commissioner segura is absent so what is the uh

fate of this motion?

The item passes with alternative one, which means the entry is denied for removal.

All right. Thank you. So now let's move on to item number four. 26-0684. Proposed project related applications on a 1.45 acre site. The use permit to demolish an existing commercial site and construct six three-story residential buildings with a total of 28 townhome units. And the vesting tentative map to subdivide the existing lot into 28 lots and one common parcel. Is there a staff report?

Yes, there is. Thank you. Can everyone hear me?

Yes.

Great. Good evening, Chair and members of the Planning Commission. My name is Wendy Lau. I am the staff project planner. The item before you this evening is Planning Application 2025-0384 for a proposed residential project at 491st South Bernardo Avenue. Next slide, please. The application consists of a use permit to construct a 28-unit, three-story townhome development totaling 3,706 square feet. The application also includes a vesting tentative map to subdivide the existing lot into 28 lots and one common parcel. Next slide, please. The project site is located in the southwest corner of South Bernardo Avenue and West Olive Avenue. It is currently occupied by a one-story building that was most recently used as a childcare center and is now currently vacant. The site is surrounded by two-story multifamily residences to the north, one- and two-story multifamily residences to the east, one-story single-family and duplexes to the south across Olive Avenue, and two-story multifamily residences across Bernardo Avenue. Other commercial uses including a grocery store and restaurant are located further to the south along El Camino Real. Next slide please. The site is 1.45 acres in size or 63,235 square feet. The site has a general plan land use designation of residential medium and has a zoning designation of R3 for medium density residential. The proposed project would demolish the existing building, which was constructed in 1958, to allow for the new multifamily development. Next slide, please. On the screen is the site plan. The proposed project consists of six buildings totaling 28 units. The project would have two driveway entrances accessible from Olive Avenue connected by a U-shaped internal drive aisle to serve the townhome units. Each unit would have three to four bedrooms and attach two car garages. The site also includes eight visitor parking spaces towards the east of the site. One of the spaces would function as a shared loading zone during daytime hours between 8am to 6pm and serve as visitor parking during nighttime hours. The site includes a courtyard which consists of trees, landscaping, and seating. The site also includes seven bicycle parking spaces located towards the front and center of the site, and four transformers located towards the center and rear of the site. There will be multiple bioretention areas throughout the site, including a larger one in the courtyard and several smaller ones along the units of Bernardo Avenue and toward the rear. Next slide, please. On the screen are the elevations for the four-unit townhomes. There are four four-unit buildings, including one located at the intersection of Bernardo and Olive Avenue. The buildings are three stories tall and would reach 40 feet and 8 inches in height. The exterior materials include gray brick veneer, brown wood and vertical lap siding, dark cementitious panels, and gray and white stucco. The interior units have a standing seam metal awning above the third floor windows. Next slide, please. Here are the elevations of the five-unit building, of which there is only one facing Bernardo Avenue. Next slide, please. Here are the elevations for the seven-unit building, which is located at the rear of the site. Next slide, please. On the screen are the streetscape elevations of the proposed project from Bernardo Avenue and from Olive Avenue. Next slide. Here is an image of the materials board showing the proposed exterior materials and colors in more detail. The entry doors include vivid colors, such as green and orange, to add visual interest to the buildings. Next slide. Here's a streetscape rendering of the proposed project from the intersection of Bernardo Avenue and Olive Avenue looking northeast. Next slide, please. Here's a streetscape rendering of the project from Olive Avenue looking north into the courtyard. Next slide. The project proposes four below market rate units at the moderate income level, which complies with the city's inclusionary BMR housing program ordinance. As a result, the project is entitled to one concession and any member waivers or reductions of development standards that would physically prevent the project from being built at the permitted density. The project proposes one concession and 16 waivers. Next slide, please. On the screen are the list of concessions and waivers. The applicant proposes one concession for the reduction of building articulation requirements. The objective design standards require 100 points, and the project proposes 50 points through their use of varied window sizes, covered porches, and scoring lines on the wall surfaces. The applicant also requests 16 waivers related to lot coverage, building height, setbacks, parking and loading spaces, balcony dimensions, landscape buffers, parking lot shading, roof views, and pedestrian walkways. Staff supports the requested concession and waivers for the proposed project. Next slide please. The applicant held a neighborhood meeting on February 5, in which approximately seven members of the public attended the meeting. Many attendees expressed support for housing, building design, and the tree plan, while raising questions and concerns related to traffic, safety, and the absence of a loading zone. This project was also heard by the Plan Commission at a study session on February 9, in which the applicant received comments about the building design, landscaping, parking, and a dual-use loading zone. Staff has not received any additional public comments as of date. Next slide, please. Under State Law AB 130, which took effect on June 2025, certain qualifying infill housing projects are exempt from CEQA review. The proposed project qualifies for this exemption because it satisfies the applicable eligibility criteria, including requirements related to lot size of no more than 20 acres, urbanized location, consistency with the general plan and zoning, minimum residential density, and no demolition of the historical resource. Accordingly, the project is exempt from CEQA and no further environmental review is required. In addition, in accordance with AB 130, the city initiated and completed the required tribal consultation. Two Native American tribes requested cultural resources awareness training for the construction personnel or tribal monitoring during excavation, which the applicant has agreed to and is incorporated as a condition of approval. Next slide, please. This slide provides the Planning Commission with alternatives for your decision tonight. Staff recommends option one, which is to find that the project is exempt from CEQA per AB 130 and approve the Use Permit Investing Tenant Map based on the recommended findings and subject to the recommended conditions of approval. Next slide, please. This concludes staff's presentation. Staff is available for any questions the Commission may have. The applicant is also here tonight to provide a presentation. Thank you.

Okay, thank you for the presentation. I will now ask for questions from my colleagues. Commissioner Pine.

Thank you, Chair. Thank you, staff, for the presentation. I just had one question, and it's that in the bonus, in the density bonus request letter on attachment five, there's 20 waivers listed in the staff report. We have 16 waivers. What's going on?

From what I recall, some of the requested waivers were not necessary. They were maybe incorporated into the project as a condition approval, for example, which the applicant has agreed to. So that's how we arrived at 16 waivers.

Okay. Honestly, the biggest reason I asked is I agree with the comment that Well, I'm not going to say before the public hearing that I agree with inherently that they were unnecessary. I will say that the waivers that I noticed that were in the letter that were not on the staff report were the ones where I was planning on asking the applicant to be very specific on how they physically precluded the development of residential sites. Because I actually thought most of the letter in attachment five was actually very, well put in that it very specifically stated how a lot of the waivers were necessary to or otherwise the project would lose residential units which unfortunately made something like a requested waiver 20 regarding transformers and generators stick out even more where it said we need this because PG&E says so which I mean I'd personally be kind of inclined to grant a deviation because PG&E says so, but I would have extreme difficulty finding that it would have that PG&E being vaguely evil physically precludes the construction of has the effect of physically precluding the construction of a development at the density required under state law. So I'll stick a pin on that for the public hearing, but it just was very noticeable. Thank you.

Vice Chair Davis.

Okay. I ask this for every one of these. We got the letter, I think from the Housing Defense Fund, asserting that this is covered by the Housing Accountability Act, which means that we can only deny this if we can find safety or health concerns, which has a very high bar. I just want to confirm that that is true. Just for the public's sake, I know that it is.

That is correct. This project is subject to the Housing Accountability Act.

Okay, thank you.

Uh, I don't see any other hands. Uh, I did have one question. Uh, the ground floor plate height has been reduced from 14 to eight feet, one inch. And this is, these are the garages, right? Uh, is that, uh, high enough for, uh, for garage? And what is the height of the door opening?

To clarify, the objective design standards requires the ground floor to have a minimum of 14 feet height. However, staff typically understands when the applicants do not include this in their townhome project, as that would be just not typical for a townhome development. So we've incorporated it as a requested waiver.

So, well, I understand the 14 feet, maybe too much, but i'm just asking as a practical standpoint is eight feet one inch. High enough for typical cars and how how big is the. garage door opening.

This is Julia Klein. Most garage doors, the typical, is about seven feet. So interior height for living or a garage, you know, that's eight feet. One is fine.

Okay. All right. Well, seeing no other hands, I'll go ahead and open the public hearing on this specific item. Please submit a speaker card to the recording officer. raise your digital hand now or dial star nine on the telephone to indicate you wish to speak. If there is an applicant presentation, 10 minutes is provided at the beginning of the public hearing to address the planning commission along with five minutes at the end of the public hearing. Is there an applicant presentation?

Yes. I thought that first item on the tree was going to be short. Sorry, my name is Forrest Mozart. I'm on the development team. We think this proposal brings much-needed housing to Settleville. um it was designed to fit the offer within the neighborhood uh while supporting the city's housing objectives we focused on quality design compatibility and return community benefit so i am here to uh respectfully request that you approve the project and we can move forward with it and i have my architect here in my civil engineer and my land use attorney just to uh answer any questions that you guys may have. So Eric, if you want to go ahead and give your presentation.

Thank you. Are you able to hear me?

We can hear you.

Great. So, good evening. Thanks to Wendy for the comprehensive staff report. There'll be some overlap in our presentation. My name is Eric Muzzi. I'm a senior planner at Dolan Architecture. Happy to be presenting this project to the Planning Commission again. Next slide, please. Here's the site context sheet. As mentioned, the existing use on site is commercial. The site is surrounded by residential development. The proposed project is compliant with the general plan designation here. Next slide, please. Here is our illustrated site plan, three-story townhome buildings. There are 28 homes in total, and this includes four below market rate units. The project hasn't changed much since the study session, but there were some updates to better comply with city standards. So I'll note a few of those. Some updates include landscape plan revisions to increase shade and the use of native species. We adjusted some lighting locations to meet lighting level requirements. In addition, the applicant agreed to conditions of approval regarding transformer screening and common open space design. Those were two of the waivers that were removed from the waiver request letter. Next slide, please. Here's our parking and circulation plan. It shows some homes facing adjacent streets, loop road for convenient vehicular circulation and emergency access. We have walkways linking entries of homes to the adjacent streets and open space. A couple of updates since the study session. One is that we converted one guest parking space to a dual use parking and loading zone. Based on comments, we also realigned pedestrian ramps per city comments. Next slide, please. Here's the rendering with a view from the corner of South Bernardo and Olive. The architectural design was well received during the neighborhood meeting and the study session, so very little has changed in that as well. One update is that we revised the ground level building color to comply with city reflectivity standards. Next slide, please. Here's a view of the common open space from Olive Avenue. Since the PC study session, the applicant agreed to revise ground level window design to comply with city standards as well. That was another waiver that was removed from the waiver request letter. Next slide, please. And here's a view of the rear and side elevations from the private loop road. The design includes articulation on all sides of the proposed buildings. Accessible gas parking is also visible in this rendering. Next slide, please. Here are the color and materials that were shown. A variety of high-quality materials are proposed, and we feel the project will contribute to the existing neighborhood. Next slide, please. So thanks for the opportunity to present the project, and we look forward to any questions or comments that the Commission may have. Thank you.

Thank you. So now I will call on members of the public participating in person first, followed by Commissioner Pine.

Thank you, Chair. Just for mostly just for the record, waiver 16 pedestrian walkway. Is it that is it applicant's position that the The site constraints that would that don't provide space mean that if we added the drive walk I walkway next to the drive by we basically have to remove units because there's not enough space right now so we'd have to either make the units on economically smaller we just have to take some out entirely.

Is that a question. Yes. So yes, the position would be that we have a parallel parking strip adjacent to the side of the site. There's a limited landscape buffer there. And if we were to add a walkway as well, there's not room for it to fit on site. So it would reduce the unit sizes and preclude the project as proposed.

Yeah, no, this made complete sense to me. It just didn't, I think, explicitly say anywhere That that would reduce units. I just wanted to get that into the record. The. There's there's to be clear, I'm not arguing this in any way, shape or form. I think it's very straightforward. The other question I had, you mentioned improve native species. Could you elaborate on this? Because I'm looking at L dash 2 and I'm looking at your tree palette and I am not seeing the native species.

I'm on the architectural team. Not sure if we have anyone from landscape can support on the spot here. I can dig into our plan set and see if I can find that, but I don't have the answer off the top of my head. I looked at our submittal responses from submittal three, and that was noted by the landscape team.

Okay. I'm just saying, I just, you know, I'm always here asking for more native species. I just, when I heard that, I just, I didn't see it in what we got. So I just... So I'm not going to try to hold up the project.

We have no cedar trees on the property.

Sorry?

No cedar trees on the property.

I didn't notice that there were eight deodorant cedars on the list of trees to be removed. Yeah. But yes, that's all I had. Thank you.

Vice Chair Davis?

Yes, for the applicant. So we're doing 19 units per acre, right? And that's below our maximum zoning wise with the housing density bonus. You could have gotten more units. I understand that townhomes are what pencils out. So the question I have is, is there anything the city can do where we get more density? is there anything in that this in the city regulations in our zoning that's keeping you from going even denser because as we've said before we are in a housing crisis my house should not be worth what it is right um gosh I you know there's so many different things working against each other on these projects uh you have fire site circulation um

I mean, Scott, do you have any insight on that question?

Well, I mean, this is Scott Shork, civil engineer. I mean, this is a fire life safety thing, but in Sunnyvale, the fire requires 26 foot wide drive aisles. And that's based on how they measure the height. But in other cities, they measure the height of the units to a different point, like gutter versus the pitch of the roof and then their roads are 20 feet wide so you get a more dense development in some other cities but that's that's nothing we could really change here um and then the other item is that doesn't apply to this site but it does apply to others is there's a sundayville has a very strict trash enclosure requirement where they have when you do use the enclosures, there needs to be an accessible path to them, and they need to be within 150 feet radius of all homes. And at the end of the day, it does reduce units. But this particular site, 19 per acre is pretty typical for townhomes, and it's hard to get much more without, you know, we're already eliminating some parking. So, yeah.

Yeah, just to follow up on Vice Chair Davis's question, you'd have to go to flats, right, and condominiums or something to get a lot more density. It would be quite a different product. Yeah, it would be a different product, for sure. All right. Thank you. Now... I will call on members of the public participating in person first, followed by remote participants. I do not have any in-person cards. Recording officer, are there any remote participants who wish to speak?

Yes, Chair, we have one hand raised. Stephen Meyer, you have the floor to speak first.

Hey, this is Steve Meyer speaking. Good evening, commissioners, and just want to say thank you to everyone involved, developer, particularly for proposing to build this wonderful project in Sunnyvale. Really appreciate all the efforts to get housing in the area and to anyone's objective about waivers or state control. This is absolutely necessary because we have other cities that will not build housing. But Sunnyvale is great at building housing. I appreciate this project. Thank you very much. That's my comment.

Thank you. And Chair, we have no further hands raised.

Thank you. So for the applicant, you have five minutes at the end.

I think we've kind of covered everything here.

All right. Thank you. So I will close the public hearing and ask for a motion from my colleagues.

Vice Chair Davis. Thank you, Chair. I'm ready to make a motion. I move that we adopt alternative one. Find the project is exempt from CEQIP for AB130 and approve the use permit investing tentative map with the recommended findings in attachment two and subject to the recommended conditions of approval in attachment three.

Do we have a second? Commissioner Iglesias. Second. And Commissioner Pine.

It not being ordered, it not being ordered to third, consider my hand as to request to speak at the appropriate time.

OK. To my share, Davis, to your motion.

Yeah, I mean, we all know what's happening here, right? This is a it's a housing project that follows the state laws and so on. It does take away some of our discretion. We need a lot. We need housing. This is a good project. So I encourage my fellow commissioners to vote for this motion. Thank you.

Commissioner Iglesias, do you second?

Thank you, Chair. Yeah, just in addition to what the Vice Chair said, I do appreciate the applicant for making the adjustment for the loading space. I think it's a great project. Thanks.

Commissioner Pine.

Yeah, thank you. I agree with what my fellow commissioners have said. I do appreciate the applicant's willingness to work with the city and not just go my way or the highway like we have seen other developers do. I do think it's a good project. I think it's I think will be an improvement to the neighborhood. We're not very far away from the site of this project of this project. I will actually flag the staff that we did not get an attachment that is the noticing radius for this project, which is something we usually get. which is because, and I think it's funny because I was going to pull it up now because I think we might actually be sitting inside the noticing radius of it at this very second, but I'd have, I don't, it's close. I'd have to actually see the noticing radius, but the, But the point is it's close to at least reasonable quality transit. It's close to a lot of city amenities. It's a good spot for more housing. I can make the required SQL findings. One thing I will flag the staff is the use of the semicolon in, oh, this is extreme pedantry. The use of the semicolon in alternative one makes me, Rob Leibowitz, mildly. Rob Leibowitz, makes me a little nervous because I the recommended findings and attachment to also apply to the sequel exemption findings and not just the use permanent investing tentative map findings so maybe going forward, we should. I know I'm probably being oversensitive to the grammar here, but just something to take a look at. But anyway, I can make the sequel findings an attachment to. I can make the be a sperm manifesting hand of map finds an attachment to subject direct my commission's approval attachment three. I also actually want to express my appreciation to applicant for for Commissioner Davis, Vice Chair Davis asks those questions at what the city could do to make development, to increase density and development a lot. And I think these are the most very, most actionable answers to that question we've ever gotten. So I'd like to thank applicant for that. And city council may not thank applicant for that when they are informed of these answers. Thank you.

commissioner yeah i would be i'm i'm happy to see this project it's a good addition um especially in that location uh you have a lot of waivers but uh because the location is such that it wouldn't impact the quality of the life of the city so it's like kind of um I mean, even though we can't object them, but still, it's not going to depreciate the quality of life in that area, especially. So I think I appreciate all the little details you have taken care. And especially I heard in presentation that you'll be working with the native tribal people while doing excavations. So that we appreciate it. Thank you.

Okay, and I will also be supporting the motion. And I appreciate, as everybody said, appreciate some of the changes made in response to the study session. And this is... An underutilized or almost a non utilized site so Putting An attractive housing project like this. There is a benefit to everybody. I don't think In this case that we need to be probably eaten by the state law in order to approve this so I will be supporting the motion. Recording officer, please take a vote.

Can we make one clarification to follow up on Commissioner Pyne's comments about the attachment labels that the motion is referring to the attachments, the labels and the headers on the upper right-hand side of each attachment as attachments two and three. There's a little bit of a discrepancy in the list. published online. I want to start off by one, whereas Commission find out. So just to clarify that the attachments referred to in the motion are the labels on the upper right-hand headers of the attachments as attachments two and three.

okay um yes recording officer please take the vote the motion passes with six yeses commissioner sakura is absent all right so what is the fate of this project it's approved unless it's appealed to the city council within 15 days all right thank you thank you guys So now we move to non agenda items and comments. The next portion of the agenda is for all reports and announcements by commissioners and staff to share information. Does Uh, staff have any knowledge and items or comments.

The city council was considering changing the start time for the night meetings. So they were looking at starting them at 6 PM, but they wanted to get input from the various different boards and commissions. So I don't know how close everybody lives, you know, and they have to get off work and get here at 6 and just eating dinner and all that kind of stuff. So any input would be great.

So they're talking about changing the planning commission?

All the commissions. Yeah, it would start at 6. So the public, the study session would start at 6 and the public hearing would just right after that. Whether it started at 645, then the whole meeting starts at 6 PM.

Wait, could you clarify that again? Right now, if we have a study session, it starts typically 6.

Yes, sorry. If you have a study session, it starts at 6 right now. The proposal or what's being asked is that if we change the public hearing meetings starting at 6. And so if we have a study session, it would still just start at 6 and the public hearing would just fall slightly after that. We wouldn't have a study session at 5.

I see, uh, Commissioner.

Uh. Would that cause any potential. Issues with noticing or anything if we don't have a fixed start time for the regular session. don't know the exact details i just know they want to start at six so it they will notice it to start at six i i mean i just know that when we notice things it typically says that like i also will say that i think there are a lot of times when people are showing up for the study session in there and then there are times when people are showing up for the public hearing and i think it would be a disservice to the public to say that we don't to not to give a non-fixed time for the public hearing i'm not even saying like i'm not saying that i'm saying that for a specific case not the general case i don't think i'm saying that how about i do this instead and i send out just some information to the folks and let you know and you can just reply back just make sure i get you all the details all right Okay, I want to be very careful about that. I know that I'm personally get off work at 6 and I know I can generally fudge it silly 10 minutes to leave my apartment 10 minutes early, but. I most, I don't know that every, but that's personal. I don't know that that generalizes. Thank you.

Commissioner Iglesias. Really quick, thanks for the question. I do get a bit of grief from my employer when I leave at 5.30. So for me, I prefer it to be 7. Thank you.

Thanks. Commissioner Figoni.

Would this be just, I mean, are you doing this, would this be for like next term or just starting the median?

I'm not sure exactly when they would want to start it. I don't have that detail, but I can pass it out to you guys and let you know via email when they would propose to start the change.

So when we don't have a study session, then it would start at 6. That's what it means, right? So if there's no study session, then our planning commission will start at 6. If there is a study session,

Was my understanding that it's still starting at six, but let me get some clarification for you guys. All right.

But your days.

I like 7 a lot better. I have a lot of privilege with my schedule, so it doesn't really impact me. But I think about the public, other commissioners, potential future commissioners, 7 is just easier to make work when you have a job, right? And perhaps you're commuting or if you have, let's say, children that you need to cook dinner for. If it starts at 7, you can cook dinner and you know, hand it over to the spouse. Six o'clock, you're coming straight here from work. So thank you. Thanks.

Yeah, and I guess my inclination would be to keep it the way it is, but it doesn't affect me personally too great, he said. Okay, seeing no other comments. Anything else, Stan?

No, that was it for staff comments.

All right, so go ahead and adjourn the meeting at 9.19 p.m.