Lawsuit Motions & Declarations **
I NIELSEN, MERKSAMER, PARRINELLO,
MUELLER & NAYLOR, LLP
2 MARGUERITE MARY LEONI, SBN #101696
CHRISTOPHER E. SKINNELL, SBN #227093
3 SEAN P. WELCH, SBN #227101
591 REDWOOD HIGHWAY, #4000
4 MILL VALLEY, CA 94941
TELEPHONE (415) 389-6800
5 FAX (415) 388-6874
6 Attorneys for Petitioner/Plaintiff
DOROTHY STOW
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
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II DOROTHY STOW,
12 Petitioner/Plaintiff,
13 V.
14
KIMBERL Y SMITH, City Clerk of the City
15 of Cupertino; CITY COUNCIL OF THE CITY
OF CUPERTINO; DOES I-X
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Respondents/Defendants.
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PATTY CHI & HELAM LUK
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Real Parties in Interest.
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Case No. 1-06-CV-063723
NOTICE OF MOTION AND
MOTION FOR PEREMPTORY
WRIT OF MANDATE,
INJUNCTIVE RELIEF, AND
DECLARATORY JUDGMENT
CALENDAR PREFERENCE
REQUIRED BY STATUTE
(ELEC. CODE & 13314(a)(3))
DATE: June 29, 2006
TIME: 9:00 A.M.
DEPT.: 2
JUDGE: Hon. William J. Elfving
)
NOTICE OF MOTION AND MOTION FOR WRIT OF MANDATE
Case No. 1-06-CV-063723
TO RESPONDENTS AND THEIR COUNSEL OF RECORD:
2 NOTICE IS HEREBY GIVEN that on June 29, 2006, at 9:00 a.m. or as soon thereafter as
3 the matter may be heard in Department 2 of the above-entitled Court, located at 191 N. First Street,
4 San Jose, CA 95113, petitioner DOROTHY STOW will move the Court for issuance of a
5 peremptory writ of mandate, pursuant to Code of Civil Procedure S 1085 and Elections Code
6 S 13314, commanding Respondents and all of Respondents' officers, agents, and employees, and all
7 those acting at Respondents' direction and control, to:
8
1.
Take no further steps to process the referendum petition against the Toll Brothers
Ordinance (Ordinance #1977) for the next Cupertino municipal ballot, or the special
election called prior thereto and/or remove the referendum from the ballot;
Take no further steps to process the referendum petition against the Vallco Ordinanc
(Ordinance #1975) for the next Cupertino municipal ballot, or the special election
called prior thereto and/or remove the referendum from the ballot; and
Refrain from taking any action inconsistent with the writ;
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2.
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3.
15 for a permanent injunction mandating that Respondents, and all persons acting pursuant to their
16 direction and control, to take no further steps to process the referendum petition against the Toll
17 Brothers Ordinance (Ordinance #1977) or the Vallco Ordinance (Ordinance #1975) for the next
18 Cupertino municipal ballot, or the special election called prior thereto and/or remove the referendu
19 from the ballot, and for a declaratory judgment that Respondents' steps to process the referendum
20 petitions and put the referenda on the ballot are unlawful and that the referenda are of no force or
21 effect.
22 I II
23 I I I
24 I I I
25 I II
26 I I I
27 III
28 I I I
2
NOTICE OF MOTION AND MOTION FOR WRlT OF MANDATE
Case No. 1-06-CY -063723
III
2 The motion will be made on the ground that the referendum petition against the Toll
3 Brothers Ordinance (Ordinance # 1977) and the Val1co Ordinance (Ordinance # 1975) violate
4 Elections Code sections 9011,9237.5, and 9238, as set forth in the First Amended Verified Petition
5 for Peremptory Writ of Mandate and Complaint for Permanent Injunction and Declaratory
6 Judgment, on file in this case.
7 The Motion will be based on this Notice, on the First Amended Verified Petition, on the
8 Memorandum of Points and Authorities filed herewith, the Declarations of Dorothy Stow, Michael
9 Danner, Ana Maria Rosato, Tenny Tsai-Eng, Kuei-Chin Lee, and Marguerite M. Leoni, filed
10 herewith, on the records and papers on file herein, and on such other and further oral and
1 I documentary evidence and legal memoranda as may be filed at or by the hearing on the Motion.
12
13
14 Dated: June 5, 2006
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Respectfully submitted,
NIELSEN, MERKSAMER, PARRINELLO,
MUELLER & NAYLOR, LLP
By:
te Mary Leoni
Sean . Welch
Attorneys for Petitioner
DOROTHY STOW
3
NOTICE OF MOTION AND MOTION FOR WRIT OF MANDATE
Case No. 1-06-CY-063723
1
2
Stow v: Smith
Santa Clara County Superior Court No, 106CV063723
PROOF OF SERVICE
(Code Civ. Proc. SS 1011, 1013,2015.5)
(Cal. Rules of Court, rule 2008(e))
I, the undersigned, declare under penalty of perjury that:
3
4
I am a citizen of the United States employed in the County of Marin. I am over the
5 age of 18 and not a party to the within cause of action. My business address is 591 Redwood
Highway, Bldg. 4000, Mill Valley, California 94941. I am readily familiar with my
6 employer's practices for collection and processing of correspondence for mailing with the
United States Postal Service and for pickup by Federal Express.
7
On June 5, 2006 I served a true copy of the foregoing NOTICE OF MOTION AND
8 MOTION FOR PEREMPTORY WRIT OF MANDATE, INJUNCTIVE RELIEF, AND
DECLARATORY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN
9 SUPPORT OF MOTION FOR PEREMPTORY WRIT OF MANDATE, INJUNCTIVE
RELIEF, AND DECLARATORY JUDGMENT; DECLARATIONS OF MARGUERITE
10 MARY LEONI, MICHAEL DANNER, DOROTHY STOW, TENNY TSAI-ENG, KUEI-
CHIN LEE AND ANA MARIA ROSATO IN SUPPORT OF PETITION FOR
11 PEREMPTORY WRIT OF MANDATE on the following parties in said action, by serving:
12
13
PATTY CHI
I 0273 NORWICH
CUPERTINO, CA 95014
Real Party in Interest
HELAM LUK
10419 DENISON
CUPERTINO, CA 95014
Real Party in Interest
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15
CHARLES T. KILIAN
Cupertino City Attorney
Law Offices of Charles T. Kilian
20410 Town Center Lane, #210
Cupertino, CA 95014
Attorneys for Defendants City Council of
Cupertino and Kimberly Smith, City Clerk of
the City of Cupertino
BY OVERNIGHT DELIVERY:
X FEDERAL EXPRESS: By following ordinary business practices and placing for
pickup by FEDERAL EXPRESS at 591 Redwood Highway, #4000, Mill Valley, CA
on June 5, 2006 copies of the above documents in an envelope or package designated
by FEDERAL EXPRESS with delivery fees paid or provided for.
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U.S. MAIL, EXPRESS MAIL: By placing the above documents in the United States
Mail for Express Mail delivery at Mill Valley, California, in a sealed envelope
addressed as above, with Express Mail postage thereon fully prepaid.
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Executed in Mill Valley, California, on June 5, 2006.
I declare under penalty of perjury~=re;tj ~ue and correct.
Ellen Olson
I NIELSEN, MERKSAMER, PARRINELLO,
MUELLER & NA YLOR, LLP
2 MARGUERITE MARY LEONI, SBN #101696
CHRISTOPHER E. SKINNELL, SBN #227093
3 SEAN P. WELCH, SBN #227101
591 REDWOOD HIGHWAY, #4000
4 MILL VALLEY, CA 94941
TELEPHONE (415) 389-6800
5 FAX (415) 388-6874
6 Attorneys for Petitioner/Plaintiff
DOROTHY STOW
7
8
9
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
10
II DOROTHY STOW,
12 Petitioner/Plaintiff,
13 V.
14
KIMBERL Y SMITH, City Clerk of the City
15 of Cupertino; CITY COUNCIL OF THE CITY
16 OF CUPERTINO; DOES I-X
17
Respondents/Defendants.
18
19
PATTY CHI & HELAM LUK
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Real Parties in Interest.
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III
III
III
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Case No. 1-06-CV-063723
MEMORANDUM OF POINTS
AND AUTHORITIES IN
SUPPORT OF MOTION FOR
PEREMPTORY WRIT OF
MANDA TE, INJUNCTIVE
RELIEF, AND DECLARATORY
JUDGMENT
CALENDAR PREFERENCE
REQUIRED BY STATUTE
(ELEC. CODE & 13314(a)(3))
DATE: June 29,2006
TIME: 9:00 A.M.
DEPT.: 2
JUDGE: Hon. William J. Elfving
MEMO OF POINTS & AUTHORITlES IN SUPPORT OF MOTION FOR WRlT OF MANDATE
Case No. 1-06-CV-063723
2
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I.
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II.
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6 III.
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16 IV.
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T ABLE OF CONTENTS
INTRODUCTION................................. ............... . ........ ....... .... ................1
FACTS. .. . .. . .. ... .. .. . . ... . ..... .. . . . . . .. . .. ... . . . . . . .. . . .. .. . . . .. . . .. ... ... ...... . . . .. . . .. . . .... . .. . . .2
ARGUMENT... .................. ....... .............................................................. 3
A. It Is Well-Settled that City Officials Have a Ministerial Duty to Refuse to
Take Action on a Facially Defective Referendum Petition.............................3
B. The Referendum Petitions Did Not Contain the "Short Title" Required by
Elections Code 99 9011 & 9237.5 and Therefore Cannot Be Placed on the
Ballot......................................................................................... .4
C. Petition Sections Were Not Circulated With the Text of the Ordinances
Included on the Petition, Thus Depriving Signers of Vital Information,
and Rendering the Petition Invalid and Not Entitled To Be Placed on
The Ballot. .. .. . ... . .... .. .. . .. .. . .. . .. . ... .. . .. . ... . .. .. . .. .. .. . . . ... . .. . . . .......... .. ..... ... 8
D. There Was No Substantial Compliance................................ ................ .10
CONCLUSION... ............ ....................... .................. ...... .... .................. .12
TABLE OF AUTHORITIES
2
CASES
Page
3
4 Assembly v. Deukmejian (1982)
30 Cal.3d 638.... .... ........ ............... ........... ..... ..... .... .................. ... ............... .............. ............. 10
5
6 Billig v. Voges (1990)
223 Cal.App.3d 962 .. ......................... ...... ....... ......................... ..................................... passim
7
8
Boydv. Jordan (1934)
1 Cal.2d 468........... ............................................................ ...................................... ..... passim
9
10
Chase v. Brooks (1986)
187 C al. A pp. 3 d 657 ......................................................................................................... 9, 11
11
12
Clark v. Jordan (1936)
7 Cal.2d 248..... ..... ............ ............................................. .......................... ..................... passim
13
Creighton v. Reviczky (1985)
171 Cal.App.3d 1225 ................................. .................................... ..................... .......... passim
14
15
Epperson v. Jordan (1938)
12 Cal.2d 61 ........ ...................................................... ......................... .......... .......................... 6
16
17
Harnett v. County of Sacramento (1925)
33 Cal. 676............................................................................................................................. 8
18
19
Hebard v. Bybee (1998)
65 Cal.App.4th 1331 ......... ....................... ................. .............................. ........ .............. passim
20
21
Ibarra v. City of Carson (1989)
214 Cal.App.3d 90.................... ........................................................................................... 11
22
23
Mervyn's v. Reyes (1998)
69 Cal.App.4th 93 .............................................. ............................................. ...... ............. 3, 9
24
Myers v. Patterson (1987)
196 Cal.App.3d 130 ................................................................................................... 7,10, 11
25
26
Nelson v. Carlson (1993)
17 Cal.App.4th 732........................................ ...................................................... ......... passim
27
28
11
2
Ruiz v. Sylva (2002)
104 Cal.App.4th 199..... ....... ....... ............... ........ ..... ......... ........................... ............ ............. 11
3
STATUTES
4
5
Elec. Code S 9011 .................................................... ....................... .............................................. ..... 4
6
Elec. Code S 9237.5 ... ................................................................ .................... ............. ....................... 1
7
Elec. Code S 9238 ................... ................................................ ........................................................... 1
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Elec. Code S 9241. ........................... ...... ......... .............. ......................................................... ..... .......3
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111
I. INTRODUCTION
2 This case concerns referendum petitions against City of Cupertino Ordinance No. 1977 and
3 1975, passed by the City Council on March 21 and 22,2006, respectively. Referendum petitions
4 must meet several statutory requirements, four of which are intended to give potential referendum
5 petition signers information about the petition they are being asked to sign. The first is a heading
6 at the beginning of the petition that reads, "Referendum Against an Ordinance Enacted By The
7 City Council." (Elec. Code 9 92381.) The second is a Short Title at the top of every page after the
8 first page "showing the nature of the petition and the subject to which it relates." (E1ec. Code 99
9 9237.5, 9011.) The third informational requirement is the number or title of the ordinance that is
10 being referred, and the fourth requirement is the full text of the ordinance, which must be included
II as part of the petition on every section of the petition. (Elec. Code 9 9238.)
12 The referendum petitions in this case contained only a heading and the number of the
13 ordinance, but did not contain the Short Title describing the subject of the petition, and many
14 sections of the petition were circulated without the text of Ordinance No. 1977 or Ordinance No.
15 1975, respectively.
16 Including a descriptive Short Title and the ordinance texts was especially important in this
17 case because the very same circulators of the referendum petition against Ordinance No. 1977 were
18 simultaneously circulating the separate petition against Ordinance No. 1975. The petitions were
19 identical in every respect, except for a single digit in the number of the ordinance. Only upon
20 close examination by a careful reader who noticed the different ordinance numbers, could the two
21 petitions be distinguished from one another. But even then, the reader would not be able to learn
22 from the face of the petitions about the subj ect matter of the different petitions because the Short
23 Title was missing from both petitions and, in many instances, the ordinance itself was not included.
24 An unbroken line of cases holds that failure to comply with the statutory requirements for a Short
25 Title and the text of the referred ordinance included in the petition is fatal to the petition. It cannot
26 be processed or placed on the ballot.
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28
I Unless otherwise indicated, all references are to the Elections Code.
1
MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR WRIT OF MANDATE
Case No. 1-06-CY -063723
II,
FACTS
2
The City Council of Cupertino recently approved two ordinances rezoning two separate
3 parcels in the City.
4 Ordinance No. 1977, passed on March 21,2006, would rezone a 32.58 gross acre parcel
5 from Planned Industrial Zone, P(MP), to Planned Residential and Commercial, PeRes, Com), and
6 Public Park, PRo This rezoning is the last step in the approval of a project to build 380 residential
7 units (300 market rate and 80 low income senior apartments), a 115,600 square foot commercial
8 center, and a 3.5 acre public park. The parcel to be rezoned is located north of Stevens Creek
9 Boulevard and south ofI-280, and between Tantau Avenue and Finch Avenue. The project
10 applicant is Toll Brothers, Inc. (Declaration of Marguerite Leoni ("Leoni Decl."), Ex. A, Item 10
II [City Council Minutes, March 21, 2006], filed herewith.)
12 The other ordinance, Ordinance No. 1975, adopted on March 22, 2006, would rezone a
13 5.19 acre parcel from Planned Development (Regional Shopping), to Planned Development
14 (Regional Shopping/Residential). The parcel to be rezoned is located at 10123 N. Wolfe Road in
15 Cupertino. The project applicant is Valleo. (Leoni Decl., Ex. B, Item 2 [City Council Minutes,
16 March 22, 2006].)
17 Following the adoption of Ordinances Nos.1977 and 1975, Real Parties in Interest
18 circulated referendum petitions against each measure. (Verified Petition at ~ 6.) The petitions are
19 identical. (Id. at ~ 6, Exhs. 1 & 2.) The only distinguishing characteristic was a single digit-one
20 petition referred to Ordinance No. 1977, and the other to Ordinance No.1975. Neither petition
21 contained the "Short Title" required by the Elections Code to "show[] the nature of the petition and
22 the subject to which it relates." (Id.) Furthermore, sections of the petitions were circulated without
23 the text of the referred ordinances. Hence, the reference to the ordinance numbers was the only
24 distinguishing characteristic between the two petitions, and the number alone provided no
25 information to a potential signer about what the referendum concerned. (Verified Petition at ~~ 17,
26 18; Decl. of Michael Danner ("Danner Decl.") at ~~ 3-7, filed herewith; Decl. of Dorothy Stow
27 ("Stow Decl.") at ~ 3, filed herewith; Decl. of Tenny Tsai-Eng ("Tsai-Eng Decl.") at ~~ 6,8, filed
28 herewith.)
2
MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR WRIT OF MANDATE
Case No. 1-06-CV -063723
The signatures on both petitions were submitted to the City Clerk, thus suspending the
2 effective date of the ordinances by operation of law (Elec. Code S 9241). (Verified Petition at ~ 8.)
3 The City of Cupertino was informed of the statutory defects in the petition immediately when the
4 signed petitions were filed with the City Clerk. (Leoni Decl. at ~~ 2-3.) Despite the facial defect
5 of the Short Title's absence, the Clerk's office has proceeded to have the County Registrar of
6 V oters verify the signatures contained on the petitions and certified the petitions to the City
7 Council as qualified for the ballot at its meeting on May 16,2006. Upon receiving the Clerk's
8 certification, the Council now has two options: place the ordinances on the ballot, resulting in a
9 potentially expensive and divisive election campaign, or repeal the ordinances in their entirety.
10 (E1ec. Code S 9241; Verified Petition at ~~ 1, 4 and 9.)
11 III.
ARGUMENT
12
A.
It is Well-Settled that City Officials Have a Ministerial Duty to Refuse to Take
Action on a Facially Defective Referendum Petition.
13
14 The Legislature has prescribed requirements for the placement of initiatives and referenda
15 on the ballot. Proponents ignore those requirements at their peril. Facially defective initiative or
16 referendum petitions are not entitled to be placed on the ballot, or to otherwise be acted upon. The
17 City Clerk and City Council have a ministerial duty to reject a referendum petition that facially
18 violates the statutory requirements contained in the Elections Code. (See, e.g., Mervyn's v. Reyes
19 (1998) 69 Cal.App.4th 93, 104-05 ["Mervyn's"]; Billig v. Voges (1990) 223 Cal.App.3d 962, 969
20 ["Billig"].) Pre-election judicial review is appropriate to prevent such a petition from being
21 submitted to the voters, or otherwise acted upon, in violation of that ministerial duty. (See Clark v.
22 Jordan (1936) 7 Cal.2d 248 ["Clark"] [invalidating initiative petition for failure to comply with
23 "Short Title" requirement]; Boyd v. Jordan (1934) 1 Cal.2d 468 ["Boyd"] [same]; Hebard v.
24 Bybee (1998) 65 Cal.App.4th 1331 ["Hebard"] [invalidating referendum because the petition
25 misstated the title of the ordinance being referred]; Nelson v. Carlson (1993) 17 Cal.App.4th 732,
26 738-740 ["Nelson"] [invalidating referendum petition because general plan being referred was not
27 attached to petition]; Creighton v. Reviczky (1985) 171 Cal.App.3d 1225 ["Creighton"] [failure to
28 include actual text of ordinance being referred].) The Court in Billig rejected the suggestion that
3
MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR WRIT OF MANDATE
Case No. 1-06-CY-063723
initiatives and referenda should be treated differently when a court reviews the validity of a petition
2 that fails to comply with the formatting requirements of the Elections Code. (See 223 Cal.App.3d
3 at 967 n.2.) Defective petitions cannot be placed on the ballot.
4
The Referendum Petitions Did Not Contain the "Short Title" Required by
Elections Code ~~ 9011 & 9237.5 And Therefore Cannot Be Placed on the
Ballot.
B.
5
6
7
The Elections Code specifies numerous requirements for the format of referendum
petitions, including the content of the petitions, type size, and signer and circulator information.
8
9
Several of these provisions are designed to provide information to prospective petition signers so
that they can intelligently exercise their referendum rights. The case law makes clear that Section
10
9011 is such a provision. (Clark, supra, 7 Ca1.2d at 248; Boyd, supra, 1 Ca1.2d at 468.) That
11
Section states:
12
13
Across the top of each page after the first page of every referendum petition
or section of a referendum petition, which is prepared and circulated, there
shall be printed in 18-point gothic type a short title, in 20 words or less,
showing the nature of the petition and the subject to which it relates.
14
15
(EIec. Code S 9011.) Section 9011 is contained in a chapter of the Elections Code (Division 9,
16
Chapter 1) dealing with formatting requirements for state initiatives and referenda. It is, however,
17
made q.pplicable to municipal referendum petitions by section 9237.5. That provision states, "The
provisions of this code relating to the form of petitions, the duties of the... elections official, and
the manner of holding elections shall govern the petition procedure and submission of the
ordinance to the voters." (Emphasis added.)
The Short Title was not included on the petitions challenging Ordinance No.1977 or
Ordinance No. 1975. (See yerified Petition, Exh. 1.) This defect in the petitions deprived
Cupertino voters of vital, statutorily-mandated information that would have enabled them to learn
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about the subject matter of the petitions from their face, and then make an informed decision
whether or not to sign either referendum petition when asked to do so.
Moreover, the Short Title would have enabled potential petition signers to immediately
distinguish between the petition against Ordinance No. 1977 and the petition against Ordinance No.
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4
MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR WRIT OF MANDATE
Case No. 1-06-CV-063723
1975, a virtually identical petition simultaneously circulated by the same circulators but pertaining
2 to a different and entirely unrelated ordinance and project. (Compare Verified Petition, Exs. 1 and
3 2.) Because the two petitions are virtually identical, and both fail to include the requisite Short
4 Title, voters were deprived of the very information on the face of the petitions that would have
5 enabled them to distinguish between the two petitions. (See Danner Decl. at ~ 7 [". . . if the petition
6 explained that it would impact the Toll Brothers' project, I would not have signed it."]; Stow Decl.
7 at ~~ 3-4 ["[T]o this day, I do not know which petition was presented to me."]; Tsai-Eng Decl. at ~ 8
8 ["Because the proponents were circulating two different petitions, one against the Val1co project an
9 one against the Toll Brothers project, there was no way to tell which petition applied to which
10 project."]; see also Decl. of Kuei-Chin Lee ("Lee Decl.") at ~ 2.)
II It would not have been difficult to design informative 20-word Short Titles for each petition.
12 For example, the March 21 and March 22 City Council agenda items for the approvals could have
13 provided the basic language: for Ordinance No. 1977, a Short Title might be: "Referendum against
14 rezoning for a shopping center, 380 residential units, and a park on Stevens Creek Boulevard and
15 Finch Avenue"; for Ordinance No. 1975, a Short Title might be: "Referendum against rezoning
16 from Planned Development (Regional Shopping) to Planned Development (Regional Shopping/
17 Residential) at 10123 North Wolfe Road." (See Leoni Decl., Exs. A [Item 10] and B [Item 2].)
18 Including the ordinance number on the petition sections does not cure the failure to include a
19 Short Title on the petition. They are separate statutory requirements and the number is just that, a
20 non-descriptive digit. Including the text of the ordinance also does not cure the defect. In Hebard,
21 supra, the referendum petition omitted some words from the title of the ordinance. The referendum
22 proponents argued that it really did not matter because the entire ordinance was attached and the
23 petition signers could read it. The Court of Appeal disagreed and invalidated the petition. The
24 Court stated: "[W]e are not convinced that the presence of the text somehow cures a title that is
25 materially inaccurate or incomplete." (Hebard, supra, 65 Cal.AppAth at 1342.)
26 An unbroken line of cases dating as far back as 1925, have struck down initiative and
27 referendum petitions that fail to comply with formatting provisions of the Elections Code,
28 especially those intended to provide information to petition signers. In Clark, supra, 7 Cal.2d at
5
MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR WRIT OF MANDATE
Case No. 1-06-CY-063723
248, and Boyd, supra, 1 Cal.2d 468. the Supreme Court considered challenges to initiative
2 petitions based upon inadequate compliance with the "Short Title" requirement contained in a
3 statutory predecessor of Section 9011, the wording of which was virtually identical to the present
4 statute but, at the time, also applied to initiative and recall petitions? (See Boyd, supra, 1 Cal.2d at
5 4 70-71 [quoting Pol. Code S 1197b].) Noting that "[ n]o elector can intelligently exercise his rights
6 under the initiative law without a knowledge of the petition which he is asked to sign...." (Clark,
7 supra, 7 Cal.2d at 249, quoting Boyd, 1 Cal.2d at 475), the Supreme Court concluded, "statutes
8 passed for the purpose of protecting electors from confusing or misleading information should be
9 enforced." (Id. at 252.) Consequently, in both cases the Supreme Court ordered the initiative
10 measures off the ballot.
11 Such a result is even more justified here. In both Clark and Boyd, the violations resulting
12 in invalidation of the petitions were actually less egregious than in the current case, because a Short
13 Title was in fact included. But because those titles failed to adequately apprise signers what the
14 proposed measures would do, the Court held that they failed to fulfill the purpose of the statute,
15 which was to "show[] the nature of the petition and the subject to which it relates." (Clark, supra,
16 7 Cal.2d at 249 & 252; Boyd, supra, 1 Cal.2d at 472-73.) This purpose is all the more frustrated in
17 this case, where no Short Title was presented.
18 A long line of subsequent cases have followed the teachings of Clark and Boyd, and denied
19 measures a place on the ballot when the petition failed to comply with statutory provisions
20 designed to provide information to potential signers of the petition.
21 In Myers v. Patterson (1987) 196 Cal.App.3d 130, the Court of Appeal invalidated an
22 initiative petition that failed to include a copy of the "notice of intention to circulate" as required
23 by Elections Code S 4005 (since recodified at S 9207). Recognizing that the notice in question
24
27
2 Since the time of those decisions, the statute has been amended to make the Short Title
requirement inapplicable to initiative petitions. The informational purpose of the short title on
initiatives petitions is now served by the provision for a government-provided Title & Summary.
(See Epperson v. Jordan (1938) 12 Cal.2d 61, 65.) Because there is no government-provided Title
& Summary for a referendum petition, however, the Short Title requirement, now codified in
section 9011, remains fully applicable (and integral) to referendum petitions.
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MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR WRIT OF MANDATE
Case No. 1-06-CY -063 723
"imparts useful information" to prospective signers (id. at 138), the court held its omission
2 warranted invalidation. (Id. at 137.)
3 In Creighton, supra, 171 Cal.App.3d at 1225, the court invalidated a municipal referendum
4 petition of an ordinance that adopted a specific plan, because the petition did not include the
5 ordinance being referred, in violation of Elections Code S 4052 (since recodified at S 9238). (Id. at
6 1227-29.) Because the measure's proponents "failed to provide the electors with the information
7 which they needed in order to exercise intelligently their rights under the referendum law," the
8 Court refused to permit it to be submitted to the voters. (Id. at 1232.)
9 Like Creighton, the court in Billig, supra, 223 Cal.App.3d at 962, struck down a zoning
10 referendum that failed to comply with the full-text requirement of Section 4052. The petition in
11 Billig did contain a summary of the ordinance being referred, but the Court held that was not
12 enough and the actual text of the 22-page ordinance was required.
13 Following the lead of Billig, the Court of Appeal in Nelson, supra, 17 Cal.AppAth at 732,
14 struck down a referendum petition challenging a city's general plan, because the petition did not
15 have a copy of the plan attached. The referendum's proponents argued that requiring attachment of
16 the two-and-a-half-inch-thick plan would be pointless and burdensome, but the Court rejected that
17 argument. (Id. at 739-41.)
18 In Hebard, supra, 65 Cal.AppAth at 1331, the Court of Appeal invalidated a referendum
19 petition challenging an ordinance changing a land use designation in the city's general plan. (Jd. at
20 1338-40.) The petition in question misstated the title of the ordinance, required by Elections Code
21 S 9238, thereby failing to inform voters which land was involved. (Id. at 1340-41.)
22 It is clear from these and other cases that violations of mandatory Elections Code
23 requirements render a referendum petition invalid. It does not matter that the referendum's
24 proponents were well-intentioned or that their errors may have been inadvertent. They failed to
25 comply with the law and their petition is not entitled to a place on the ballot. The violation of
26 Section 9011 in this case is at least as clear as the violations in the cases cited above, and the result
27 should be the same-a judicial order prohibiting the processing of the referendum for the ballot
28
7
MEMO OF POINTS & AUTHORITlES IN SUPPORT OF MOTION FOR WRIT OF MANDATE
Case No. 1-06-CV-063723
and/or removing it from the ballot.3
2
Petition Sections Were Not Circulated With the Text of the Ordinances
Included on the Petition, Thus Depriving Signers of Vital Information, and
Rendering the Petition Invalid and Not Entitled To Be Placed on The Ballot.
c.
3
4
In this case, Real Parties also failed to comply with another informational requirement for
5
referendum petitions: the evidence demonstrates that in many instances the texts of the measures
6
7
were, in fact, not included on the petition sections while the petitions sections were being
circulated. There could be no mistake about this because Ordinance No 1977 is 19 pages long with
diagrams, and Ordinance No. 1975 is 2 pages long. (See Danner Decl. ~~ 3-6 ["...I am certain that
[Ordinance 1977] was not attached to the petition that I signed."]; Stow Decl. at ~~ 3-5 [on two
separate occasions, when presented with a copy of the petition to sign, which amounted to a single
8
9
10
11
piece of paper, no ordinance was attached]; Tsai-Eng Decl. at ~~ 6-8 ["the text of the Valleo
Ordinance was not attached to any of the petition signature pages"]; Lee Decl. at ~ 2 ["Nothing was
attached to the single-sheet petition"];Verified Petition at ~~ 17-18.) Moreover, an observer of the
12
13
14
circulation process, who spent more than twenty-two (22) hours within a few feet of the persons
circulating the petitions, witnessed the circulators repeatedly provide potential signers with only a
single piece of paper to review and sign.4 (Rosato Decl. at ~~ 3-8 ["In no circumstance did I
witness the petition circulators provide the potential or actual signers with a copy of any ordinance,
or offer them anything to review other than the single-page with spaces where their signatures were
15
16
17
18
19
20
21
3 Because the Clerk's office has proceeded to have the County Registrar of Voters verify the
signatures contained on the petitions and has certified the petitions to the City Council as qualified
for the ballot, the continued waste of taxpayer funds and an unnecessary and divisive election
campaign are imminent. In addition, no measure of damages can compensate Petitioner and the
electors of the City of Cupertino for the harm they will suffer if the referendum is submitted to the
voters in contravention of statutory requirements. As such, there is no question that, absent judicial
intervention, Petitioner and the tax-paying electorate of the City of Cupertino, will suffer irreparable
harm and have no adequate remedy at law. (See, e.g., Harnett v. County of Sacramento (i925) 33
Cal. 676, 683 [". . . the courts may, at the insistence of a resident taxpayer, enjoin the holding of the
election upon the ground that it will be a useless expenditure and waste of public funds"].)
4 It must be noted that Petitioner has no obligation to produce evidence that any voters were
actually confused or misled by the defect to prevail. (Hebard, supra, 65 Cal.AppAth at 1333;
Mervyn's, supra, 69 Cal.AppAth at 104) Nevertheless, they have done so.
8
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23
24
25
26
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MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR WRIT OF MANDATE
Case No. 1-06-CV -063723
to be affixed."].)
2 Elections Code section 9238 requires that each section of a referendum petition in
3 circulation "shall contain ... the text of the ordinance or the portion of the ordinance that is the
4 subject of the referendum." This did not occur and this defect compels the invalidation of the
5 referendum against Ordinance No. 1977 and banning it from the ballot. (See Creighton v Reviczky,
6 supra, 171 Cal.App.3d at 1227-29 [invalidating a referendum petition because it did not include
7 the text of the ordinance being referred, in violation of Elections Code section 4052 (since re-
8 codified at section 9238)]; see also, Billig, supra, 223 Cal.App.3d at 962, Nelson, supra, 17
9 Cal.App.4th at 732; Chase v. Brooks (1986) 187 Cal. App. 3d 657 ["[W]e determine the petitions
10 are fatally defective for not including the complete text of the ordinance on which the referendum
11 was sought"].)
12 Of course, because both the petition against Ordinance No. 1977 and the petition against
13 Ordinance No. 1975 failed to include the required Short Title as well as the ordinances that were
14 the subject of each petition, potential signers were without any means of informing themselves
15 about the subject matter of the petitions and were left to distinguish between the two petitions
16 based solely on the difference of a single digit in the ordinance number on the face of the two
17 petitions. (See Stow Decl. at ~ 3 ["The piece of paper stated it was related to City Ordinance No.
18 1977, but I could not find an explanation of that Ordinance, I did not see any information
19 regarding the actual subject matter of the petition, and I could not find any information that
20 indicated whether the petition pertained to the Valleo project or the Toll Brothers project."];
21 Danner Decl. at ~~ 3-7 [". . . the face of the piece of the paper did not identify what it was for or
22 what it related to. . . . Had I been permitted to read the ordinance before signing the petition, or if
23 the petition explained that it would impact the Toll Brothers' project, I would not have signed it"];
24 Tsai-Eng Decl. at ~~ 6, 8 ["The Ordinance was identified only by its number, No. 1975, and did not
25 identify or describe the Vallco project. . . Because the proponents were circulating two different
26 petitions, one against the Valleo project and one against the Toll Brothers project, there was no
27 way to tell which petition applied to which project"]; see also Lee Decl. at ~ 2.)
28 Such a fine distinction is plainly insufficient to fulfill the Legislature's purpose in adopting
9
MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR WRIT OF MANDATE
Case No. 1-06-CV-063723
the Elections Code's informational provisions. (See Creighton, supra, 171 Cal.App.3d at 1231
2 ["The designation of the protested legislation by number only, as appellants have construed the
3 section, would create and compound confusion as to the measure"; see also, Chase v. Brooks,
4 supra, at 664 ["The petitions' mere reference to the City of Vista Map Number, reclassification of
5 the property from "R-IB to R-M30," and specific parcel numbers affected [without the full
6 ordinance included] neither fully apprised the prospective signers of the substantive provisions of
7 the challenged ordinance nor sufficiently enlightened them of the specific property affected"].i
8 The rationale employed by the Supreme Court in ordering the initiative measures off the
9 ballot in Boyd and Clark ("No elector can intelligently exercise his rights under the initiative law
10 without a knowledge of the petition which he is asked to sign.... "), and in invalidating referenda in
II Creighton, Billig, Chase, and Nelson is clearly relevant here (see Clark, supra, 7 Ca1.2d at 249,
12 quoting Boyd, 1 Ca1.2d at 475.) It is also of central importance to our initiative and referendum
13 process. As a result of Real Parties' compound failures to include a Short Title in their petition
14 and a the text of the referred ordinance at all times during circulation, voters were confused and/or
15 mislead regarding the nature and impact of the referendum petition.
16
D.
There Was No Substantial Compliance.
17 The doctrine of substantial compliance does not excuse the violations of the Elections Code
18 in this case. That doctrine is not applicable to this case because there was no compliance at all
19 with Section 9011. "Substantial compliance 'means actual compliance in respect to the substance
20 essential to every reasonable objective of the statute.'" (Myers, supra, 196 Cal.App.3d at 138,
21 quoting Assembly v. Deukmejian (1982) 30 Ca1.3d 638,649 [emphasis in original; some internal
22 quotation marks omitted].) In other words, "[a] paramount concern in determining whether a
23 petition is valid despite an alleged defect is whether the purpose of the technical requirement is
24 frustrated by the defective form of the petition." (Nelson, supra, 17 Cal.AppAth at 737, quoting
25 Deukmejian, supra, 30 Ca1.3d at 652-53].)
26
27
5
Even if the text were included on all copies of the petition, however, that would still not
excuse the failure to comply with the Short Title requirement. (Hebard, supra, 65 Cal.AppAth at
1342.
28
10
MEMO OF POfNTS & AUTHORITIES fN SUPPORT OF MOTION FOR WRIT OF MANDATE
Case No. 1-06-CV-063723
As the Myers court recognized, this means that if a "notice-inclusion requirement serves
2 some informational purpose for prospective signers of a petition, then there clearly [is] no
3 substantial compliance [when the] petition sections. . . faiUl altogether to include the notice."
4 (Myers, supra, 196 Cal.App.3d at 138 [emphasis added]; see also Ibarra v. City of Carson (1989)
5 214 Cal.App.3d 90,99; Creighton, supra, 171 Cal.App.3d at 1233; Chase v. Brooks (1986) 187
6 Cal.App.3d 657, 664.) As explained above, there is substantial case law associating the Short Title
7 requirement of Section 9011 with the voters' ability to make a fully informed choice about whether
8 or not to sign the petition, and several Supreme Court cases have invalidated petitions for failure to
9 comply with that requirement. (Clark, supra, 7 Ca1.2d at 248; Boyd, supra, 1 Ca1.2d at 468.) 6
10 III
II III
12 III
13 III
14 III
15 III
16 III
17 III
18 III
19 III
20 I I I
21 III
22 I I I
23 I I I
24 I I I
25
26
27
6 As one Court of Appeal recently explained, the doctrine of substantial compliance is
appropriate where a petition's defects relate to the emphasis of required information. It is not
appropriate where the defects relate to the failure to provide such information at all. (Ruiz v. Sylva
(2002) 104 Cal.App.4th 199,213.)
28
11
MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR WRIT OF MANDATE
Case No. 1-06-CV -063723
IV.
CONCLUSION
2
Sections 9011 and 9238 are intended to preserve the integrity of the referendum process by
3 ensuring that the public is adequately informed as to the subject matter and nature of the petition
4 they are being asked to sign. Here, there is no question that the referendum petitions failed to
5 comply with the requirements of section 9011. In addition, petition sections were circulated
6 without Ordinance No. 1977 or Ordinance No. 1975 included on the petition. These patent failures
7 not only deprived Cupertino voters of their right to make an informed decision regarding the
8 referendum, but also tainted the results of the circulation and de-legitimized the referendum
9 process. The referendum petition at issue in this case is clearly invalid, and the only way to uphold
10 the integrity of the Elections Code and prevent the improper expenditure of taxpayer funds is for
11 this Court to invalidate the referenda against Ordinance No. 1977 and Ordinance No. 1975 and ban
12 them from the ballot.
13
14
Respectfully submitted,
15 Dated: June 5,2006
NIELSEN, MERKSAMER, PARRINELLO,
MUELLER & NAYLOR, LLP
16
19
By:/
Marg ,e te Mary Leoni
Atto eys for Petitioner
DOROTHY STOW
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12
MEMO OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR WRIT OF MANDATE
Case No. 1-06-CY-063723
2
Stow v. Smith
Santa Clara County Superior Court No. 106CV063723
PROOF OF SERVICE
(Code Civ. Proc. SS 1011, 1013,2015.5)
(Cal. Rules of Court, rule 2008( e))
I, the undersigned, declare under penalty of perjury that:
3
4
I am a citizen ofthe United States employed in the County of Marin. I am over the
5 age of 18 and not a party to the within cause of action. My business address is 591 Redwood
Highway, Bldg. 4000, Mill Valley, California 94941. I am readily familiar with my
6 employer's practices for collection and processing of correspondence for mailing with the
United States Postal Service and for pickup by Federal Express.
7
On June 5, 2006 I served a true copy of the foregoing NOTICE OF MOTION AND
8 MOTION FOR PEREMPTORY WRIT OF MANDATE, INJUNCTIVE RELIEF , AND
DECLARATORY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN
9 SUPPORT OF MOTION FOR PEREMPTORY WRIT OF MANDATE, INJUNCTIVE
RELIEF, AND DECLARATORY JUDGMENT; DECLARATIONS OF MARGUERITE
10 MARY LEONI, MICHAEL DANNER, DOROTHY STOW, TENNY TSAI-ENG, KUEI-
CHIN LEE AND ANA MARIA ROSATO IN SUPPORT OF PETITION FOR
11 PEREMPTORY WRIT OF MANDATE on the following parties in said action, by serving:
12
PATTY CHI
10273 NORWICH
CUPERTINO, CA 95014
Real Party in Interest
HELAM LUK
10419 DENISON
CUPERTINO, CA 95014
Real Party in Interest
13
14
15
16
17
CHARLES T. KILIAN
Cupertino City Attorney
Law Offices of Charles T. Kilian
20410 Town Center Lane, #210
Cupertino, CA 95014
Attorneys for Defendants City Council of
Cupertino and Kimberly Smith, City Clerk of
the City of Cupertino
BY OVERNIGHT DELIVERY:
X FEDERAL EXPRESS: By following ordinary business practices and placing for
pickup by FEDERAL EXPRESS at 591 Redwood Highway, #4000, Mill Valley, CA
on June 5,:2006 copies of the above documents in an envelope or package designated
by FEDERAL EXPRESS with delivery fees paid or provided for.
18
19
20
21
22
23 _
24
25
U.S. MAIL, EXPRESS MAIL: By placing the above documents in the United States
Mail for Express Mail delivery at Mill Valley, California, in a sealed envelope
addressed as above, with Express Mail postage thereon fully prepaid.
26
Executed in Mill Valley, California, on June 5, 2006.
. I declare under penalty of perj ury ~=reJ)l =e and correct.
Ellen Olson
2
NIELSEN, MERKSAMER, PARRINELLO,
MUELLER & NAYLOR, LLP
MARGUERITE MARY LEONI, SBN #101696
CHRISTOPHER E. SKINNELL, SBN #227093
SEAN P. WELCH, SBN #227101
591 REDWOOD HIGHWAY, #4000
MILL VALLEY, CA 94941
TELEPHONE (415) 389-6800
FAX (415) 388-6874
8
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
28
Case No. 1-06-CV-063723
DECLARATION OF
MARGUERITE MARY LEONI IN
SUPPORT OF PETITION FOR
PEREMPTORY WRIT OF
MANDATE
CALENDAR PREFERENCE
REQUIRED BY STATUTE
(ELEC. CODE & 13314(a)(3))
DATE:
TIME:
DEPT.:
JUDGE:
June 29, 2006
9:00 A.M.
2
Hon. William 1. Elfving
3
4
5
6
Attorne~s for Petitioner/Plaintiff
DOROTI-IY STOW
25 1.
I am an attorney licensed to practice law in the State of California. I am one ofthe
26 attorneys for the petitioner in this action. I make this declaration of my personal
27 knowledge.
7
9
10
)
)'
)
)
)
)
)
KlMBERL Y SMITl--L City Clerk of the City of )
Cupertino; CITY COUNCIL OF THE CITY OF ~
CUPERTINO; CITY OF CUPERTINO; DOES I-X)
)
)
)
)
)
)
)
)
)
)
)
)
DOROTHY STOW,
11
PetitionerlP laintiff,
12
v.
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16
Respondents/Defendants.
17
18
PATTY CHI & HELAM LUK
19
Real Parties in Interest
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21
22
23 I, Marguerite Mary Leoni, declare
24
DECLARATION OF MARGUERITE MARY LEONI
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2. On or about April 20, 2006 I telephoned the Cupertino City Attorney, Charles
Kilian, to discuss with him that I had reviewed the referendum petitions against
Ordinance No. 1977 and Ordinance No. 1975 and that I believed that they were both
formally defective because each lacked a short title, and that the City Clerk should not
process such defective petitions for the ballot by having the signatures verified. I told Mr.
Kilian that there were California Supreme Court cases that required an appropriate short
title for petitions and that I would send him the cases. Attached hereto is the email that I
sent to Mr. Kilian.
3.
In that same conversation, I told Mr, Kilian that I had information that the
referendum petitions had been circulating without copies of either Ordinance attached. I
stated to Mr. Kilian that this too was a basis for refusing to process the petitions.
4.
On June 5, 2006 I reviewed the web site ofthe City of Cupertino, California,
located at http://www.cupertino.org, That page contains a link to a page, located at
http://www.cupertino.org/city government/agendas minutes/index. asp, which lists
recent agendas and minutes for the Cupertino City Council meetings. A link on that
page, titled "Minutes Archives," links to an archive ofPDF versions of the minutes from
prior City Council meetings, The link directed me to
http://64.165,34.l3/weblinklindex.asp?DocumentID=0&FolderID=798&SearchHandle
=O&Doc ViewType=F olderContents&LeftPaneType=F olderContents&dbid=O. I then
followed the links for the PDF documents labeled, CC 03-21-06 and CC 03-22-06. I
downloaded and printed both of these documents. A true and correct copy of the PDF
2
24
25
26
27
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DECLARATION OF MARGUERITE MARY LEONI
document titled "CC 03-21-06" (Approved Minutes Cupertino City Council, Regular
Adjourned Meeting, Tuesday, March 21,2006), is attached hereto as Exhibit A. A true
and correct copy of the PDF document titled "CC 03-22-06" (Approved Minutes
Cupertino City Council, Regular Adjourned Meeting, Wednesday, March 22, 2006), is
attached hereto as Exhibit B.
2
3
4
5
6
7
8 I declare under penalty of perjury under the laws of the State of California that the
9 foregoing is true and correct of my personal knowledge and if called as a witness I could
10 testify competently thereto.
II
12 Executed this 5th day of June at Mill Valley California.
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3
DECLARATION OF MARGUERlTE MARY LEONI
.
CUPEIQ"INO
APPROVED MINUTES
CUPERTINO CITY COUNCIL
Regular Adjourned Meeting
Tuesday, March 21,2006
ROLL CALL
At 5:02 p.m. Mayor Richard Lowenthal called the meeting to order in the Council Chambers, 10350
Torre A venue, Cupertino, California.
Present: Mayor Richard Lowenthal, Vice-Mayor Kris Wang and Council members Patrick
Kwok, Orrin Mahoney and Dolly Sandoval. Absent: None.
INTERVIEWS
At 5 :05 p.m. Council convened to Conference Room A, 10300 Torre A venue, Cupertino, California.
1. Interview applicants for the following Commission vacancies: Parks and Recreation,
Housing and Bicycle Pedestrian
Council interviewed Margaret Goodrich and Chihua Wei for the Parks and Recreation
Commission vacancy. Council appointed Margaret Goodrich to a tenn ending January
2007.
Council interviewed Chihua Wei and Om Talajia for the Housing Commission vacancy.
Council appointed Chihua Wei to a term ending January 2007.
Council interviewed Scott Fable for the Bicycle Pedestrian Commission vacancy and
appointed him to a term ending January 2007.
PLEDGE OF ALLEGIANCE
At 6:45 p.m, Mayor Richard Lowenthal called the meeting to order in the Council Chambers,
10350 Torre A venue, Cupertino, California and led the Pledge of Allegiance.
ROLL CALL
Present: Mayor Richard Lowenthal, Vice-Mayor Kris Wang and Council members Patrick Kwok,
Orrin Mahoney and Dolly Sandoval. Absent: none.
March 21, 2006
Cupertino City Council
Page 2
CEREMONIAL MATTERS - PRESENT A TIONS
1. Mayor Lowenthal presented a proclamation to City Clerk Kimberly Smith for her
achievement in completing the third level of the International Institute of the Municipal
Clerks (IIMC) Master Municipal Clerk Academy
2. Mayor Lowenthal presented a proclamation to Community Relations Coordinator Laura
Domondon Lee for the success of the Block Leader Program.
Emma Tully, representing the Future Business Leaders of America chapter at Homestead
High School, presented a check for $6,567.38 to Mark McKenna, President of the
Cupertino Historical Society.
Mayor Lowenthal presented a proclamation to the Future Business Leaders of America
(FBLA) chapter at Homestead High School honoring their contributions to the Cupertino
Historical Society and their dynamic community organization.
POSTPONEMENTS
Consider continuing the Vallco ordinances item number 9 to March 22,
Consider continuing the Valleo restaurant item number 13 to March 22,
Wang/Kwok moved and seconded to continue these items to March 22nd at 6:00 p.m. Motion
carried unanimously.
WRITTEN COMMUNICATIONS
The following items were distributed at the meeting:
. Staff report correcting the location of improvements for item number 7
. An email dated 3/16 from Thorisa Yap supporting Item No, 10, Toll Brothers
An email dated 3/21 from Keith Murphy opposing Item No. 10, Toll Brothers
. Draft Parks and Recreation Commission minutes from March 2 concerning item No.1 0
A comprehensive analysis of tree #174 prepared by arborist Barrie Coates for item No 10
Sections from the Cupertino General Plan on flood hazards and noise pollution for item
number 10
Letter dated 3/20 from Schoolhouse Services regarding item No. 10 clarifying the
methodology for dete~ining student populations
An email dated 3/21 from Jim Moore opposing item No. 12
A letter from Sara Arzeno opposing item No, 12
An email dated 3/22 from Mahmood Kutubuddin opposing item No. 12
Council discussed briefly the procedure for including received emails under written
communications. Staff responded that emails that had been sent to the City Clerk's office directly
and received after the packet had been prepared were reported at the meeting.
March 21, 2006
Cupertino City Council
Page 3
ORAL COMMUNICATIONS
Kent Squarcia addressed Council regarding the commission eligibility requirements, specifically
regarding commission members not being related to city staff,
Mr. Lee Song reported on a secret death camp in Northern China and asked Council for a
resolution condemning the government there and freeing the people.
Ruby Elbogen referred to the Vallco issue that was earlier continued to the next night. She was
unable to come back but wanted to state that she was against the proposed housing and believed
there should be firm reassurances that the wall under discussion remain in perpetuity.
Martin Bishop stated that he was the District 5 representative on Disabled Advisory Boards and
Commissions and was available to assist the city in related matters.
Bei-Shen Sywe stated that he represented a group that was against high density housing and he
urged Council to stop all such building in the city,
Shilpa Joshi stated that everyone in the city should be noticed concerning major projects, not just
the neighbors.
Ms. Siaileesaumar, 4th grader, did not support the increase in housing as it could result in
overcrowding in the schools,
Ishani Joshi, grade school student, also stated her concerns about overcrowding in the schools as a
result of additional housing.
Anshuel Somar, 6th grader, stated his opposition to building condos as they could result in
increased traffic and overcrowding in schools.
CONSENT CALENDAR
SandovallW ang moved and seconded to approve the items on the Consent Calendar as
recommended with the exception of item number 8 which was removed for discussion. Ayes:
K wok, Lowenthal, Mahoney, Sandoval and Wang. Noes: none.
4. Approve the minutes from the February 7 and 27 and the March 7 and 8 City Council
Meetings.
5. Adopt resolutions accepting accounts payable for March 3 and 10, Resolutions Nos.
Numbers 06-053 and 06-054.
6. Adopt a resolution accepting payroll for March 10, Resolution Number 06-055.
7. Accept municipal improvements for Hunter Properties (curb, gutter, driveway and
sidewalk) at the Town Center Project, Buildings R&G at 10251 and 10271 Torre Avenue,
March 21, 2006
Cupertino City Council
Page 4
ITEM REMOVED FROM THE CONSENT CALENDAR
8, Receive a check in the amount of $4,000 from the DeAnza Youth Soccer League for the
maintenance of Cupertino athletic fields.
Kwok asked if this money was part of the agreement in place to maintain the fields, Staff
responded that this money was an extra donation and not part of the required maintenance
funds. Council discussed the appropriateness of accepting these funds in light of various
development projects under discussion.
KwoklWang moved and seconded to reject the donation and send a letter from the Mayor
thanking the soccer league but advising them that it was not appropriate for the Council to
accept the donation at this time.
PUBLIC HEARING
9. Vallco Ordinances (Continued from March 8)
a) Conduct the second reading of Ordinance No, 1975: "An Ordinance of the City
Council of the City of Cupertino Rezoning of a 5.19-Acre Parcel From Planned
Development (Regional Shopping) to Planned Development (Regional
Shopping/Residential) at 10123 N. Wolfe Road." (V allco)
b) Conduct the second reading of Ordinance No, 1976: "An Ordinance of the City
Council of the City of Cupertino Modifying a Development Agreement (1-DA-90)
to Encompass the Development Proposed in U-2205-16, ASA-2205-11, 2-2005-05
and TR-2005-04 for a 137 Unit, Two-and Three Story Residential Condominium
Development at 10123 N, Wolfe Road." (Valleo)
These items were continued to the March 22 meeting at 6:00 p.m,
10, Consider application Nos, U-2005-15, EXC-2005-18, TM-2005-04, 2-2005-04 (EA-2005-
17), Kelly Snider (Toll Brothers), Stevens Creek Blvd. at Finch Avenue, APN Nos. 316-20-
074,316-20-078,316-20-079,316-20-085. (continued from February 7):
a) Mitigated Negative Declaration
b) Use Permit for a mixed-use development consisting of approximately 113,000 square
feet of commercial shopping center, up to 399 residential units and a 3.5 acre public
park
c) Exceptions from the Heart of the City plan to allow for an average 35-foot front
setback along Stevens Creek Boulevard for the commercial shopping Center
March 21, 2006
Cupertino City Council
Page 5
d) Tentative Map to subdivide 4 parcels (approximately 26 acres) into 6 parcels for a
residential and commercial development consisting of approximately 113,000
square feet of retail shopping center, up to 399 residential units and a 3.5-acre public
park.
e) Rezoning to allow for a commercial and residential development consisting of
approximately 113,000 square feet of commercial shopping center, up to 380
residential units and a 3.5-acre public park.
Conduct the second reading of Ordinance No. 1977: "An Ordinance of the City of
Cupertino Rezoning of a 32,58 Gross Acre Parcel from Planned P(Res,Com), and
Public Park, PR, Located at North of Stevens Creek Boulevard and South of 1-280
Between Tantau Avenue and Finch Avenue."
Community Development Director Steve Piasecki presented his PowerPoint staff report.
Specifically he noted that the Planning Commission found that the applicant had addressed
all of the site plan, park and miscellaneous changes requested by Council at their February
7th meeting. The Planning Commission also requested the Council make the following
changes: 1) Architecture and Site Approval should return to the Planning Commission for
review; 2) The Aleppo Pine should be preserVed to the maximum extent possible; 3) The
project should provide sufficient onsite bicycle paths and parking; 4) A transportation
demand management plan should be implemented if future parking problems are observed;
5) The proposed senior apartment units should be enlarged in size or increased in unit
count; and 6) The applicant should provide funding to purchase the .5 acre site in Rancho
Rinconada for a park. The Parks and Recreation Commission concurred with the Council's
direction on the 3.5-acre contiguous park design. They also believed the neighbors in the
area should have the opportunity to review the park design and that the creek trail adjacent
to the Calabazas Creek should be designed and constructed as part of this project.
Applicant Rick Nelson from Toll Brothers made a PowerPoint presentation addressing the
following issues: reduced the height of East Terrace from 4-story to 3-story and reduced the
units from 118 to 101; provided pedestrian access along Tantau and Stevens Creek
Boulevard; provided 3.5-acre contiguous park; transferred density to the north side;
provided additional parking along Vallco Parkway; provided 300 units with 80 for senior
low-income housing; provided 30 feet of retail setback on Stevens Creek Boulevard;
provided a retail link to Valleo; provided .6 acre for pool and clubhouse; provided for active
streets capes, water features, passive light, seat wall, rose gardens, etc.; updated Master Plan
(retail - 8.37 acres, parks - 3.5 acres, residential 11.37 acres and senior housing - 2.13
acres); updated Master Landscape Site Plan; provided additional parking; retained
pedestrian connections to Menlo Equities and Rosebowl sites; provided favorable senior
housing comparison with other senior housing in the city; revised site breakdown; provided
improved public parkland; provided $320,000 new revenue to City's general fund; provided
$100,000 new public art; provided below market rate housing; provided pedestrian and
bicycle trails; provided open space; and provided public community room.
March 21, 2006
Cupertino City Council
Page 6
Mr. Nelson raised two matters for Council consideration, First, regarding the request for
additional park land, he believed they had already provided for enough park land in this
project. He suggested that the City had funds available if they wanted to provide for more
park land. Second, he questioned whether a shuttle bus for seniors was feasible and needed
since the project had close proximity to public transportation and shopping. He noted that
they would consider providing a capital contribution toward the purchase of a van should
Council think such additional transportation was needed,
Ken Rodriques, project architect, explained that in a typical retail project 24-26% was for
building area with the remaining approximately 75% dedicated to walkways, parking,
access and landscaping.
iack Bariteau, retail developer for project, noted that the applicant had consulted with them
about 18 months ago when Council had requested retail be included in this project. He
commended Toll Brothers and the Council for all of their efforts on this project. Mr.
Bariteau believed this project was an exceptional opportunity for the city.
Barrie Coates, arborist, addressed the issue of the sycamore tree (#174). He did not
recommend keeping this tree as it had a hollow trunk, cavities and fungus. He noted that it
might live as much as 50 years but within 5 years would be deemed dangerous as it would
start to fall apart. Regarding the pine tree, he noted that it was a healthy tree and the limbs
over Stevens Creek could be removed. He did note, however, th.at this tree would need
space at its base (at least 20' in all directions) to protect the tree,
Mayor Lowenthal opened the public hearing at 8:33 p,m.
The following spoke in favor of the project:
. Charlie Ahem
. John Giovanola
. Marilyn Howard
. Anne Ng
. Marks Bums
. Shiloh Ballard (representing Silicon Valley Leadership Group)
. Shawna Holmes (on behalf of Hewlett Packard)
. Mark McKenna (representing Cupertino Chamber of Commerce)
. Al DiFrancesco
Their comments included:
. Provided Senior Low Income Housing
. Addressed parking and traffic issues
. Provided park lands
. Used Green Building principles
. Higher density in housing equaled lower impact on schools
. Project balanced current and future needs of community
March 21, 2006
Cupertino City Council
Page 7
. Addressed housing needs
. Provided retail sales tax
. Good neighbor to surrounding areas
. Good use for vacant land
. Developer worked with community
. Sierra Club approval
. Compact transit-oriented development
The following spoke against the project:
. Helen Luk
. Keith Murphy
. Dennis Whitaker
. Jennifer Griffin
. Julie Bay
. Jinsong Liau
. Bei Shen Sywe
(representing 50 people)
. Shilpa Joshi
. Rahul Vadodkar
. Lisa Warren
. Darrel Lum
. Lloyd Martin
. Shuyi Chen
. Alok Gupta
Their comments included:
. Flooding issues - part of flood zone
. Water pollution issues
. Need for an environmental impact report
. Negative impact on schools
. Concerns regarding trees, specifically saving the sycamore tree and the Aleppo Pine
. City does not need the money
. Property can be put to better use - possible donation for public park land
. Traffic concerns
. Commercial use a better option
. Excessive high density housing on too many current projects
One of the issues also raised by some who spoke against the project was the possibility of a
conflict of interest on the part of Councilmember Mahoney regarding this project. They
pointed out that he had worked for Hewlett Packard and should therefore step down from
voting on this issue.
Councilmember Mahoney stated that he had reviewed his work relationship with Hewlett
Packard with the City Attorney and the matter had also been reviewed by the Fair Political
Practices Commission. This included not only his past career with Hewlett Packard but
also his current consulting agreement with them. It had been determined that there was no
conflict of interest.
Mayor Lowenthal closed the public hearing at 9:25 p.m.
March 21, 2006
Cupertino City Council
Page 8
City Attorney Chuck Kilian confirmed with the applicant that they were offering $300,000
above what they were required to pay to mitigate the impact on the school districts. These
monies would be paid prior to issuing the building permits for the project. The City
Attorney also requested confirmation from the applicant that these monies were not being
requested by the city and they were not required by law, Furthermore, the applicant would
state that he waived protection under said law.
Rick Nelson, Toll Brothers, reaffirmed that they were offering to pay $300,000 in addition
to what they were required to pay to mitigate the impact on the school districts, They
understood this was not being requested by the city and was not required by law and they
waived protection under said law.
A Bridge Housing Corporation representative addressed the questions raised by Council
concerning the rules governing the number of people living in a senior housing unit. He
stated that there were regulations on a number of different levels concerning senior housing
and in addition there would be on-site management. Specifically, children were not
allowed to live in senior housing.
Councilmember Sandoval stated that she was most impressed with the environmental
aspects of this project, including the connectivity to Vallco and Menlo Equities, bicycle
paths and creek trails. She also noted the following positive aspects of this project: safe
pedestrian access and bicycle paths, a 3.5-acre public park, senior housing, retail
opportunities, good neighbor to schools and ECO passes.
Mayor Pro Tem Wang stated her concerns about this project: not enough senior housing,
density of senior housing should be reduced, corridor between project and Valleo not
sufficient, housing north of the pool should be eliminated, traffic, project should be limited
to 300 residential units as originally stated and the negative impact on schools,
Councilmember Kwok stated he did not like the design of this project (in part the park
should be moved), it was not the right project for this site, the connectivity to Valleo and
Menlo Equities was not there and the density of the project was too much. He also
questioned whether the city services could take care of the impact of this project.
Councilmember Mahoney believed this was a good project for the city in that it provided
the benefits of senior housing, retail opportunities and a park.
Mayor Lowenthal stated his support of this project stating that it was of great benefit to the
current residents of Cupertino. It provided a park, retail, 300 residential units, 80 senior
units and a community room.
Mahoney/Sandoval moved and seconded to remove the condition to preserve the sycamore
tree (#174) and to replace it with 3-4 fully-grown oak trees planted in a highly visible,
public location. The motion carried with Kwok voting no.
March 21, 2006
Cupertino City Council
Page 9
Sandoval/Kwok moved and seconded to have the Homeowners Association purchase ECO
passes for future residents, one per unit (free transportation from the Valley Transit
Authority). The motion carried unanimously.
Sandoval/Mahoney moved and seconded to have the applicant give the city the funds to
either purchase a 12-person vehicle for a senior shuttle program or use the money to
subsidize contracting out the program. Kwok added an amendment approving only the staff
recommendation on this issue, Sandoval did not accept the amendment. The original
motion carried unanimously,
KwoklMahoney moved and seconded to state that the commercial delivery and trash pick
up hours would be limited to 9:00 a.m. to 7:00 p.m. weekends and holidays and to state that
there would be a community garden, The motion carried unanimously.
Sandoval/Kwok moved and seconded to have public and pedestrian access to the parks and
villas. The motion carried unanimously.
MahoneylKwok moved and seconded to eliminate sections c, d and e from Condition #48
as stated in Planning Commission Resolution No. 6368. The motion carried unanimously.
SandovallKwok moved and seconded that the applicant had voluntarily agreed to allow a
condition be placed on the approval of the use pennit that says at the time of building
pennit approval, the applicant will show that the applicant has paid the school district the
pro-rata share of $300,000 prior to issuance of the building pennit. The motion carried
unanimously.
Kwok/Sandoval moved and seconded to adopt numbers 1, 2 and 3 of the Planning
Commission minute action No. 6380 with language added to number 3 that the project .
should provide sufficient on-site bicycle paths and parking to be approved by the
Architectural Site Approval Committee. The motion carried unanimously.
Kwok/Sandoval moved and seconded that a transportation demand management plan
should be implemented if a future parking problem is observed, The motion carried
unanimously.
Sandoval/Mahoney moved and seconded to adopt the mitigated negative declaration,
The motion carried unanimously.
Sandoval/Mahoney moved and seconded to approve a use permit for a mixed-use
development consisting of 115,600 square feet of commercial shopping center with 380
residential units and a 3.5-acre park with conditions to the use pennit as amended by the
Council at this meeting. WanglKwok made an amendment for 300 total residential units.
The motion failed with Wang and Kwok voting yes. The original motion carried with
Wang and Kwok voting no.
March 21, 2006
Cupertino City Council
Page 10
Sandoval/Mahoney moved and seconded to approve the exceptions from the Heart of the
City allowing for an average of a 35-foot setback (with a minimum of 30 feet) along
Stevens Creek Boulevard, Motion carried with Wang and Kwok voting no.
Sandoval/Mahoney moved and seconded to approve a tentative map to subdivide 4 parcels
(approximately 26 acres) into 6 parcels for a residential and commercial development
consisting of 115,600 square feet of retail shopping center, up to 380 residential units (80 to
be Senior Housing) and a 3.5-acre public park. The motion carried with Wang and Kwok
voting no.
Sandoval/Mahoney moved and seconded to read Ordinance 1977 by title only and that the
City Clerk's reading would constitute the second reading thereof. Ayes: Lowenthal,
Sandoval and Mahoney, Noes: Kwok and Wang,
Sandoval/Mahoney moved and seconded to enact Ordinance #1977, Ayes: Lowenth~,
Sandoval and Mahoney. Noes: Kwok and Wang,
Council moved Item 12 forward on the agenda and with the concurrence of the applicant
agreed to continue this item to the March 22 meeting at 5:30 p.m,
11. Consider the Cupertino Community Development Block Grant (CDBG)
Programs:
a) Adopt a resolution approving the Consolidated Plan, Resolution No. 06-05
(continued from March 7)
SandovallKwok moved and seconded to adopt Resolution No. 06-056 approving the 2006-
09 Consolidated Plan and authorizing the City Manager to submit said plan to HUD with
the following change: page 23, last paragraph, sentence should read: "Projects of 7 or more
units must provide on-site BMR units." The motion passed unanimously.
b) First of two public hearings regarding the use of fourth program year (2006-07)
Community Development Block Grant (CDBO) funds and Human Service grants
and begin review of the 2006-07 Annual Action Plan
Senior Planner, Vera Oil reviewed the recommendations from the CDBG Steering
Committee. It was noted that requests from new agencies were not recommended by the
committee due to budget restrictions. Wang suggested adding a column showing the
amount requested in addition to the amount recommended for approval. Sandoval noted
that the comments regarding the lack of representation at meetings by the Support Network
for Battered Women should be deleted as they had been undergoing management changes
and were present at this meeting.
The following thanked Council for their support: Linda Lyon (Second Harvest Food Bank),
Ragan Henninger (Emergency Housing Consortium), Naomi Nakano- Matsumoto
(Cupertino Community Services), Gail Easton (Support Network for Battered Women),
March 21, 2006
Cupertino City Council
Page 11
Georgia Bacil (Senior Adults Legal Assistance) and Colleen Hudgen (Live Oak Adult Day
Services )
12. Consider an appeal of the Planning Commission's decision to deny a modification to a
Tentative Map (TM-2005-03) to provide access for Lot 2 from Lindy Lane application No.
M-2005-04, Bret Moxley (Knopp residence), 21925 Lindy Lane, APN No. 356-25-014.
The appellant is John Knopp,
This item was continued to March 22 at 5:30 p.m,
UNFINISHED BUSINESS
NEW BUSINESS
13. Consider Application Nos. U-2006-02, ASA2006-04 (EA-2006-04) for Valleo
Restaurants, Mike Rohde (Valleo Fashion Park), 10123 N, Wolfe Road, APN
No. 316-20-064.
a) Negative Declaration
b) Use Permit and Architectural and Site approval applications to
construct a 5,910 square foot restaurant (Islands Restaurant) and a
6,020 square foot restaurant (California Pizza Kitchen) on the .
northwest corner of Stevens Creek Boulevard and N. Wolfe Road
This item was continued to the March 22nd meeting.
14. Consider scheduling a study session on April 4, at 5:30 p,m. to continue the
discussion about industrial business in Cupertiho.
Jennifer Griffin commented on the importance of holding a study session on changes in
neighborhood development. She expressed her concerns about converting industrial land to
housing specifically as related to the negative impacts on schools.
ORDINANCES
15.
Conduct the second reading of Ordinance No. 1979: "An Ordinance of the
Council of the City o(Cupertino Amending Chapter 16.28 of the Cupertino
Code Related to Regulations Affecting Fences,"
City
Municipal
Staff reported that the following two changes had been made to the Ordinance at Council's
request: 1) removed the language waiving fees on fence exceptions; and 2)
added language requiring gates to have a minimum 30 foot setback from the front and/or
street side property lines, which would prevent gates along residential street frontages.
Kwok/Sandova1 moved and seconded to read the ordinance by title only and that the
March 21, 2006
Cupertino City Council
Page 12
City Clerk's reading would constitute the second reading thereof. Ayes: Kwok, Lowenthal,
Mahoney, Sandoval and Wang. Noes: None
Kwok/Sandoval moved and seconded to enact Ordinance No. 1979, Ayes: Kwok,
Lowenthal, Mahoney, Sandoval and Wang. Noes: None
ST AFF REPORTS
16.. Report on City's Fiscal Strategic Plan
This report will be available for the April 4 Study Session on industrial business in
Cupertino.
17. Receive status report on General Fund Revenue and Expenditures
Administrative Services Director Carol Atwood stated that the General Fund Revenues
were tracking on budget with two revenues better than budget (permits and charges for
services), She also noted that expenditures were tracking on budget.
COUNCIL REPORTS
ADJOURNMENT
At 12.15 a.m, the meeting was adjourned to an Adjourned Regular Meeting on March 22 at 5:30
p.m.
For more information: Staff reports, backup materials and items distributed at the meeting are
available for review at the City Clerk's Office, 777-3223, and also on the Internet at
www.cupertino.org.Click on Agendas and Minutes/City CouncilJPackets.
Most Council meetings are shown live on Cable Channel 26 and are available at your convenience
from our web site. Visit wyvw.cupertino.org and click on Watch Meetings. Videotapes are
available at the Cupertino Library or may be purchased from the Cupertino City Channel, 777-
2364,
.
CUPEIQ"INO
APPROVED MINUTES
CUPERTINO CITY COUNCIL
Regular Adjourned Meeting
Wednesday, March 22,2006
PLEDGE OF ALLEGIANCE
At 5:35 p.m. Mayor Richard Lowenthal called the meeting to order in the Council Chambers,
10350 Torre Avenue, Cupertino, California and led the Pledge of Allegiance,
ROLL CALL
Present: Mayor Lowenthal, Vice-Mayor Kris Wang and Council members Patrick Kwok, Orrin
Mahoney and Dolly Sandoval. Absent: None
WRITTEN COMMUNICATIONS
. An email dated 3/22 from Michael Pyle sent to City Attorney Charles Kilian regarding
item number 2,
. An email dated 3/21 from Jim Moore regarding item number 1.
. An email dated 3/22 from Mahmood Kutubuddin regarding item number 1.
. A site plan regarding Valleo
ORAL COMMUNICATIONS
Lee Song reported on a death camp in Sujiatun, Shenyang City, Liaoning Province, China. He
noted that at least 6,000 Falun Gong followers were being subject to death and the harvesting of
human organs. Mr, Song urged the Council to issue a resolution condemning the death camp and
urging the immediate release of all remaining prisoners. He further urged everyone to contact
President Bush, their Senators and Congressmen to request an immediate international
investigation,
Jennifer Griffin referred to a decision made at the last Council meeting to replace the sycamore
tree on the Toll Brothers' property. She urged Council to consider replacing this tree with one of
the same species and to put the replacement near the current location of the tree.
Shiloh Ballard said that she worked as a housing advocate for the Silicon Valley Leadership
Group. She invited all interested parties to attend a tour on Saturday, May 13 to look at
affordable housing in the area, Projects of varying densities in the east side of the valley would
be included in the tour, For more information call 408-501-7864 or visit www.svl~.net.
March 22, 2006
Cupertino City Council
Page 2
CONSENT CALENDAR - None
PUBLIC HEARINGS
1. Consider an appeal of the Planning Commission's decision to deny a modification
to a Tentative Map (TM-2005-03) to provide access for Lot 2 from Lindy Lane,
Application No. M-2005-04, Bret Moxley (KnopP residence), 21925 Lindy Lane,
APN No. 356-25-014, The appellant is John Knopp. (continued from March 21)
City Planner Cynthia Wordell reviewed the staff report. She said if the General Plan
policies 2.53 and 2.56 were to be upheld to maintain the rural character of the hillside,
this would be best achieved by utilizing the current easement. She said that the Planning
Commission believed the Council's direction had been clear that there were to be no new
Lindy Lane driveways as a result of subdivision activity, and the Commission had voted
4-0-0 for denial of the subdivision modification request.
Appellant John Knopp noted that they had purchased the property 29 years ago and their
decision to subdivide the property was part of their retirement plan, Their two options
were to use an easement from the Schmidt's property or use access off Lindy Lane.
While there was an unrestricted easement on the Schmidt's property, the Schmidt's were
opposing the Knopp's use of the easement, citing too much traffic as a concern, Knopp
said that without access off Lindy Lane, their property would be landlocked, which was
affecting their ability to sell the second lot. He said the only remaining option would be
to go to court, which he would prefer not to do, and so he was appealing to Council for
Lindy Lane access. Mr. Knopp said there were no technical objections to the proposed
driveway, and there would be no damage to the existing trees, and the driveway would
provide better access for emergency vehicles,
Ron Berti commented that this additional driveway off Lindy Lane would result in three
driveways right next to each other. He believed this caused visual clutter and was also a
safety issue. Mr. Berti noted that there was another option for a driveway to the west of
the proposed driveway, but he acknowledged that this option was steeper and might
require a retaining wall.
Marion Schmidt stated that they had sold the lot 40 years ago and it was Wlderstood that
if it was ever subdivided, access would be off Lindy Lane, She further stated that the
increased traffic from having three families access their driveway would provide hardship
to them.
Jennifer Griffin urged protection of the oak trees on the proposed driveway off Lindy
Lane. She referred to a new rubber material that had been used in the city for sidewalks
and suggested this might be an option for the driveway because it would not negatively
impact the existing trees, She also commented that the proposed 18 foot width of the
driveway was excessive.
JOM and Julia James did not support another driveway off Lindy Lane and stated their
concern about the trees,
March 22, 2006
Cupertino City Council
Page 3
Simon Ko noted that this was a difficult neighborhood situation and he hoped that the
neighbors would be able to work something out. He also noted that the 18 foot driveway
was exceSSIve,
Charlie and Candan Taysi urged that this appeal be denied, They suggested that there
was already a fourth driveway off Lindy Lane which could be used. The proposed
driveway resulted in a negative impact on the rural atmosphere and the trees.
Karen Knopp stated that when they had applied for their subdivision they had been told
access off Lindy Lane was possible and would provide good access for emergency
vehicles. She noted that this subdivision would result in only one more home and that no
further development would take place, so it would still be a rural neighborhood, They
had tried to work this situation out with their neighbors but had been unable to do so, and
she asked Council to grant the appeal.
Council members stated that it was important to maintain the rural atmosphere of Lindy
Lane, and it was also important to be consistent because others had been told they could
not have access off Lindy Lane when developing. This was a dispute betwe~n neighbors
which could not be resolved by Council.
Wang/Mahoney moved and seconded to deny the appeal of the Planning Commission's
decision to deny a modification to a Tentative Map (TM-2005-03) to provide access for
Lot 2 from Lindy Lane, The motion passed unanimously,
ORAL COMMUNICATIONS (continued)
Lloyd Martin referred to the letter sent to the Fair Political Practices Commission concerning
Councilmember Mahoney's business relationship with Hewlett Packard, Mr. Martin did not
believe that this letter contained all of the facts pertaining to this possible conflict of interest
situation such as the length of employment history, pension information, etc. Mr. Martin
believed full disclosure was important.
Councilmember Mahoney stated that he had made an unbiased decision regarding the Toll
Brothers' project and he stood by his decision.
PUBLIC HEARINGS (contimied)
2. Vallco ordinances (continued from March 21)
a) Conduct the second reading of Ordinance No, 1975: "An Ordinance of the
City Council of the City of Cupertino Rezoning a 5.19-Acre Parcel From
Planned Development (Regional Shopping) to Planned Development
(Regional Shopping/Residential) at 10123 N. Wolfe Road." 01allco)
March 22, 2006
Cupertino City Council
Page 4
b) Conduct the second reading of Ordinance No. 1976: "An Ordinance of the
City Council of the City of Cupertino Modifying a Development
Agreement (I-DA-90) to Encompass the Development Proposed in
U-2005-16, ASA-2995-11, Z-2005-05 and TR-2005-04 for a 137 Unit,
Two and Three Story Residential Condominium Development at 10123
N. Wolfe Road." (Valleo)
Senior Planner Aki Honda reported that the applicant had provided the following
items requested by Council at their 2/27/06 meeting: 1) Signed copies of REAs
(real estate agreements) between Valleo and Sears and JC Penney; 2) Draft
CC&R language, approved by the City Attorney as to form, to maintain the
existing sound wall along the we~tem perimeter of the property; and 3) The
design for the parking garage showing a maximum height of32 feet, ~ith parking
spaces numbering 560 instead of 746. City Planner Cynthia Wordell presented
diagrams of the parking structure,
Director of Administrative Services Carol Atwood presented an overview of the
fiscal impact of this project and said that the condos were an integral part of this
project to help make it feasible. She said that the developer was projecting retail
sales tax at $450 per square foot, and that staff had reevaluated this number to
$385 per square foot. This would generate to the city an additional $4.2 million
per year into the General Fund, and over the next 30 years the redevelopment
project would provide additional tax increments to the city, of which $24 million
would be generated for housing set-aside monies (low and very low income
housing) and $49 million would be generated back into the regional mall for
economic development.
Mike Rohde, Valleo Fashion Park Representative, stated that the Vallco project
was an innovative mixed use project which would provide an energetic,
cosmopolitan experience and connectivity between housing and retail as well as
generating sales tax and providing jobs, Mr. Rohde commented that five other
developers had already attempted revitalization projects at Valleo and he urged
Council to approve the plans for this important part of the city.
Emily Chen, Vallco International LLC, stated that in addition to the financial
aspects of this project, of primary importance to them was having this opportunity
to contribute to the community, She noted that this was a turning point for this
project because-the condos were the last piece of the total design for Valleo, Ms.
Chen noted that this project involved private funding only, and no bonds.
The following spoke in favor of the Vallco application for housing:
Ann Woo (Director of Art Center in Vallco)
Hamid Abtaini (speaking also for Sung Kim and Choong Kim)
Robert Dejpour
Bobby Montanye
Jian Chen (Director of New Concepts day care)
March 22, 2006
Cupertino City CO,uncil
Page 5
Linh N ging
Paul Mahamongkol
Frank Ho
John Laine
Yuan-Sing Chang
Daniel Friedeberg
Rich Tygerson
Anna Tang
Tenny Tsai
Mark McKenna (representing the Cupertino Chamber of Commerce)
Jerry Nelson
Their comments included:
. City will benefit from Vallco revitalization
. Local shopping important; it will help the business community
. Creates jobs and provides local entertainment
. Well located, well designed
. Portion of the site will be dedicated for day care center
. Mixed use (housing and retail) good idea, and an urban living environment is a trend
of the times
. Supported by many residents (petitions circulated) - those at meeting are not
representative of all in the city
. Wall could be totally landscaped for mitigation
. Parking issues had been resolved
. Condos are one piece of the project - without condos the project is in jeopardy
. Brings housing to jobs
. Builds community in Cupertino
The following spoke against the Vall eo application for housing:
Rahul Vadodkar
Jennifer Griffin
Eleanor Ineerpi
Edith Pedersen
Carol Bunn
Rajeev Joshi
Lawrence Luk
Eric Sun
Veronica Lam
Linda Chui
Shilpa Joshi
Al DiFranceso
Arthur Lu
Linda Soohoo
Vipin Samar
Ardith West
Tom Roellig
Helam Luk
Lloyd Martin
Michael Pyle
Chris Hsu
William Huang
Eva Chow
Sherry Ren
Michael Chui
Juan Chin
Julie Bay
Danny Luk
Shnkar Iyer
Lisa Warren
March 22, 2006
Cupertino City Council
Page 6
Ed Puccinelli
Sue Chang
Martin Yu
Eric Yang
Shuyi Chen
Sean Huang
Bei-Shen Sywe
Michel Gerin
Alok Gupta
Lucy Tuttle
Steven Scharf
Rich McGrath
Paul Lin Kaw
Stuart Chessen
Janice Ishii
Kathy DiFrancesco
Nelson D'Souza
Linda Cheung
Connie Zhang
Edward Deng
Varsha Joshi
Yi-ke Wang
Matt Kernahan
Margaret Wang
Their comments included:
. Cupertino growing too fast - slow down and scale back
. Creates an isolated community, not a good location for families
. Lack of communication between developer and neighborhoods; the developer will benefit
and not the city
. Possible conflict of interest on the part of council members
. Should not be compared to Santana Row
. There is clear opposition to this project - it will be put to a referendum
. Loss of property values and negative impacts on the community
. It is the developer's responsibility to deal with their financial issues. The condos should
not be the break point for the success of this project
. Against high density housing, and opposed to condos next to single family homes
. Current parking spaces needed for retail
. Negative impact on schools, traffic, crime, and the quality of life
. Council should be listening to residents; there is frustration with the public hearing
process. This is not a financially sound proposal, and the plan is piecemeal
. Covenant regarding wall should include a guarantee for perpetuity that the wall could not
be'removed,
. Supported revitalization of Vall co but opposed to housing because it leaves no room for
retail expansion in the future
. Is Valleo violating the agreement with AMC? (parking and pedestrian bridge issues) -
The AMC lease prohibits housing
It was also noted that Patty Chi had submitted a DVD to Council which included statements
by 31 residents in opposition to this project.
March 22, 2006
Cupertino City Council
Page 7
Three issues were raised during the public hearing that Council clarified, First, there seemed
to be a misconception that the housing issue was new to this project. Council confirmed with
staff that the 1991 development agreement for this land included a residential entitlement.
Thus, there has been some expectation of housing on Vall co land for 15 years. Second, the
possibility of a conflict of interest was raised. In response Councilmember Kwok stated that
, he was not related in any way to Emily Chen nor has he received any campaign monies from
her, Third, a city-wide mailing had been sent regarding this project.
Council discussed various issues related to this project including the covenant for the wall. It
was agreed that the City Attorney would work with resident Michael Pyle and the
developer's attorney Mr. Wong on language that would strengthen this covenant, and if
agreement could not be reached this matter would come back to Council.
Emily Chen, Valleo International LLC, responded to questions raised by Council concerning
the financing of this project. She stated that the bank looked at the entire project when
considering the financial backing for this project and the entitlement for 137 condos was
needed to give the developers the needed additional $15-$20 million to put into the
revitalization. Currently the theatre costs were approximately $60 million and the garage
costs $37 million to $45 million, The theatre was not a money-maker for the developer but
was critical to the project because it generated business, increased foot traffic and gave
interested parties confidence in the project. Ms. Chen noted that the city had required that a
theatre had to be built before the Rosebowl project, which had been approved a year earlier,
and which was collateral for the bank loan.
Councilmember Kwok's comments included: The revitalization of Vall co would bring many
public benefits including new jobs, and new entertainment venues; The quality-of life-issues
must be weighed for the immediate neighborhood as well as the entire community.
Councilmember Mahoney's comments included: It was the Council's responsibility to
promote economic development in the city, not the developer's; if the condos were not
approved it put the Valleo project in jeopardy, and the momentum for revitalization project
could be lost; he believed the impact from traffic would be minimal with the wall remaining
in place, and that the visual impact was minimal with mitigation measures such as
landscaping.
Vie-Mayor Wang's comments included: Condos can't support retail because they would not
generate enough shoppers; Cupertino was a suburb, and shouldn't be compared to Santana
Row; housing is not a long-term solution to the success of the mall; a day care center would
generate even more traffic; and a parking analysis is needed to identify sufficient parking for
each venue. Wang also said the increased housing numbers approved in the revised General
Plan were for a 10 year period and should not be used all at once,
Councilmember Sandoval's comments included: She had voted against this issue at an earlier
meeting; she was not in support of a walled-in community and believed there should be
pedestrianlbicycle access to provide a safer environment for the children going to school; She
believed there was a need for housing in the Cupertino and that this project was good for the
economic development of the city and would benefit the entire community.
March 22, 2006
Cupertino City Council
Page 8
Mayor Lowenthal comments included: it was in the best interest of the community to
revitalize Valleo and the addition of condos was needed to achieve this 'goal; there would be
a much greater impact on traffic from the 3500-seat theatre than from 137 condos; there had
been consensus to revitalize Vallco and Council had requested the theatre be part of this
project; and Cupertino had to comply with ABAG housing requirements and this proposed
housing helped meet those goals.
Mahoney/Lowenthal moved and seconded to read Ordinance No. 1975 by title only and that
the Acting City Clerk's reading would constitute the second reading thereof. Ayes: Mahoney,
Lowenthal, Sandoval. Noes: Kwok and Wang
Sandoval requested that the BMR units be increased from the regular 15% to 20% and that
park fees be increased to supplement the General Park Fund, It was noted that the current
park dedication fees to be paid by the developer were $1,077,300.
Emily Chen, Valleo International LLC, volunteered to add an additional 5% of all BMR one-
bedroom units and to pay an additional sum beyond the normal park dedication fees in the
amount of $423,000 to be paid in 2010, She also agreed to amend the use permit for this
project to reflect these changes, (As a point of clarification it was noted that the regular 15%
BMR units w~e a mix of one - three bedrooms. The 5% increase specifically related to one-
bedroom units.)
Mahoney/Lowenthal moved and seconded to enact Ordinance No. 1976. Ayes: Mahoney,
Lowenthal, Sandoval. Noes: Kwok and Wang
Mahoney/Sandoval moved and seconded to continue the second reading of Ordinance No.
1976 to the April 4, 2006, City Council meeting. Motion carried with Kwok voting no,
UNFINISHED BUSINESS
NEW BUSINESS
3. Consider Application Nos. U-2006-02, ASA2006-04 (EA-2006-04) for Valleo
restaurants, Mike Rohde (Vallco Fashion Park), 10123 N. Wolfe Road,
APN No.3 16-20-064 (continued from March 21)
a) Negative Declaration
b) Use Permit and Architectural and Site approval applications to construct
a 5,910 square foot restaurant (Islands Restaurant) and a 6,020 square foot
restaurant (California Pizza Kitchen) on the northwest corner of Stevens
Creek Boulevard and N, Wolfe Road
WanglKwok moved and seconded to continue Item 3 to the April 4, 2006, City Council
meeting. The motion passed unanimously.
March 22, 2006
Cupertino City Council
Page 9
ADJOURNMENT
The meeting was adjourned at 1: 10 a.m.
Id,
For more information: Staff reports, backup materials and items distributed at the meeting
are available for review at the City Clerk's Office, 777-3223, and also on the Internet at
www.cupertino.org.Click on Agendas and Minutes/City Council/Packets.
Most Council meetings are shown live on Cable Channel 26 and are available at your
convenience from our web site. Visit www.cupertino.org and click on Watch Meetings,
Videotapes are available at the Cupertino Library or may be purchased from the Cupertino
City Channel, 777-2364,
Stow v. Smith
Santa Clara County Superior Court No. 106CV063723
1
2
PROOF OF SERVICE
(Code Civ. Proc. SS 1011, 1013,2015,5)
(Cal. Rules of Court, rule 2008(e))
I, the undersigned, declare under penalty of perjury that:
3
4
12
PATTY CHI
13 10273 NORWICH
CUPERTINO, CA 95014
14 Real Party in Interest
HELAM LUK
10419 DENISON
CUPERTINO, CA 95014
Real Party in Interest
15
16
CHARLES T. KILIAN
Cupertino City Attorney
Law Offices of Charles T. Kilian
20410 Town Center Lane, #210
Cupertino, CA 95014
Attorneys for Defendants City Council of
Cupertino and Kimberly Smith, City Clerk of
the City of Cupertino
BY OVERNIGHT DELIVERY:
X FEDERAL EXPRESS: By following ordinary business practices and placing for
pickup by FEDERAL EXPRESS at 591 Redwood Highway, #4000, Mill Valley, CA
on June 5, 2006 copies of the above documents in an envelope or package designated
by FEDERAL EXPRESS with delivery fees paid or provided for.
17
18
19
20
21
22
23
u.S. MAIL, EXPRESS MAIL: By placing the above documents in the United States
Mail for Express Mail delivery at Mill Valley, California, in a sealed envelope
addressed as above, with Express Mail postage thereon fully prepaid,
24
25
Executed in Mill Valley, California, on June 5,2006.
I declare under penalty of perj ury Z'~re;tj =e and correct.
Ellen Olson
26
2
NIELSEN, MERKSAMER, PARRINELLO,
MUELLER & NAYLOR, LLP
MARGUERITE MARY LEONI, SBN #101696
CHRISTOPHER E. SKINNELL, SBN #227093
SEAN P. WELCH, SBN #227101
591 REDWOOD HIGHWAY, #4000
MILL VALLEY, CA 94941
TELEPHONE (415) 389-6800
FAX . (415) 388-6874
3
4
5
6
Attorneys for Petitioner/Plaintiff
DOROTHY STOW
7
8
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
9
)
)
)
)
)
v. )
13 )
14 KIMBERLY SMITH, City Clerk of the City of j
Cupertino; CITY COUNCIL OF THE CITY OF )
15 CUPERTINO; CITY OF CUPERTINO; DOES I-X)
)
)
)
)
)
)
)
)
)
)
)
)
10
DOROTHY STOW,
11
PetitionerlP lain/iff,
12
16
Respondents/Defendants.
17
18
PARTTY CHI & HELAM LUK
19
Real Parties in Interest
20
21
22
23
24
25
26
27
28
Case No. 1-06-CV-063723
DECLARATION OF
TENNY TSAI-ENGIN SUPPORT
OF PETITION FOR
PEREMPTORY WRIT OF
MANDATE
CALENDAR PREFERENCE
REQUIRED BY STATUTE
(ELEC. CODE & 13314(a)(3))
Date: June 29,2006
Time: 9:00 a.m.
Dept.: 2
Judge: The Hon. William 1. Elfving
DECLARATION OF TENNY TSAI-ENG
1 I, Tenny Tsai-Eng, hereby declare:
2 1. I make this declaration in support of Dorothy Stow's Petition for a Peremptory Writ of
3 Mandate. This declaration is based upon my own personal knowledge and, if called as a witness, I
4 could and would competently testify under oath to the facts set forth below.
5 2. I am a partner in the San Jose, California office of NAI BT Commercial, a large and
6 well-respected commercial real estate services company serving Northern California. I am a licensed
7 real estate broker and specialize in commercial retail leasing and in property acquisition for churches
8 and other non-profit organizations. I have over 19 years experience in the area of commercial real
9 estate in the Bay Area.
10 3. I have a strong interest in the social and political issues facing the South Bay and I am
11 actively involved in several nonprofit organizations serving the South Bay. For example, I currently
12 serve on the Board of Directors for both the national Alzheimer's Association and the Alzheimer's
13 Association for Northern California and Northern Nevada. I am also actively involved with Self Help
14 for the Elderly, a charitable organization that provides a variety of essential services to over 25,000
15 low-income and isolated elderly each year in San Francisco, San Mateo and Santa Clara counties. I
16 have served on its Board of Directors and continue to volunteer and raise money for the organization.
17 Finally, I am also actively involved with the Chinese American Real Estate Association, having served
18 as President in 2000-2001 and on the Board of Directors from 1998 to 2003.
19 4. Because I am engaged in the South Bay real estate market, I am familiar with the
20 proposal by Vallco International Shopping Center to develop a condominium project adjacent to the
21 Valleo Fashion Mall. I support the project because I believe it will bring badly needed housing to the
22 City of Cupertino. I followed and supported the Cupertino City Council's decision to pass Ordinance
23 No. 1975, which rezoned approximately five acres of land along Wolfe Road to permit the project to
24 go forward (hereafter the "Valleo Ordinance"). One day earlier, the City Council had passed
25 Ordinance No. 1977, which approved a separate development proposed by Toll Brothers. The two
26 projects are not related.
27 5. Shortly after the Ordinances were passed, I learned that several Cupertino voters were
28 circulating referendum petitions opposing both the Valleo and Toll Brothers Ordinances. I heard the
DECLARATION OF TENNY TSAI-ENG
1 proponents of the referenda were planning to gather signatures at the Cupertino Public Library. I
2 wanted to read the petition against the Valleo Ordinance and any related materials to see why the
3 voters were opposing the project. Accordingly, at approximately 10:30 a.m. on Saturday, April 1,
4 2006, I went to the Cupertino Public Library. The proponents of the referenda had set out tables with
5 the petitions and signs stating why the group opposed additional condominiums in Cupertino.
6 6. I approached the tables and found a clipboard on which the petition for the Valleo
7 Ordinance appeared. The Ordinance was identified only by its number, No. 1975, and did not identify
8 or describe the Vallco project. I noticed that the petition had been signed by several voters. I flipped
9 through all of the papers on the clipboard and found only copies of the page of the petition on which
10 voters were to sign. The actual text of the Valleo Ordinance was not attached to any of those pages.
11 Having followed the City Council's approval of the Valleo Ordinance, I was familiar with the
12 ordinance and its appearance, and I specifically flipped through the pages to see if it was attached to
13 the petitions. It was not; the text of the Valleo Ordinance was not attached to any of the petition
14 signature pages. I also reviewed the other materials on the table and did not see the Valleo Ordinance.
15 7. After reviewing the petitions and proponents' literature, I left the Library to compose a
16 short flyer supporting the Valleo project and rebutting proponents' arguments against the project.
17 After drafting the flyer, I returned to the Library at approximately 1 p.m. with several other
18 indi viduals, whom I had asked to help pass out the flyers. We approached potential voters and
19 respectfully asked them if they would read our flyer before deciding whether to sign the referendum
20 petitions. I stayed at the Library until approximately 4 p.m.
21 8. While I was there, I overheard proponents of the referenda telling voters that the
22 petitions were needed in order to stop the construction of thousands of condominiums in Cupertino. At
23 other times, the proponents stated that the Valleo project would add thousands of condominiums to the
24 City. These statements were highly misleading because the Valleo project involved the construction of
25 only 137 condominiums. Together, the Valleo and Toll Brothers projects would add fewer than
26 500 condominiums to the City. To make matters worse, the petitions themselves nowhere corrected
27 these misleading statements. The Valleo petition nowhere identified or described the project it was
28 opposing, or stated the number of condominiums involved. The petition nowhere summarized the
2
DECLARATION OF TENNY TSAI-ENG
1 project or even included the title of the Ordinance, which at least would have informed voters of the
2 location of the proposed project. Because the proponents were circulating two different petitions, one
3 against the Valko project and one against the Toll Brothers project, there was no way to tell which
4 petition applied to which project.
5 I declare under penalty of perjury under the laws of the State of California that the foregoing is true
6 and correct. Executed on June 5, 2006 at San Jose, California.
7
8
9
10
11
12
13
14
15
16
17
18
19
~-,--;'"
.""'~-
-~---
--
/'
...~....-...-.....
L/'- -----..-----------.---
--."
--
----~_..-
.../
.----/..--
T eml-yT"s ~i --En g
20
21
22
23
24
25
26
27
28
3
DECLARATION OF TENNY TSAI-ENG
1
2
Stow v: Smith
Santa Clara County Superior Court No. 106CV063723
PROOF OF SERVICE
(Code Civ. Proc. SS 1011, 1013,2015.5)
(Cal. Rules of Court, rule 2008(e))
I, the undersigned, declare under penalty of perjury that:
3
4
I am a citizen of the United States employed in the County of Marin. I am over the
5 age of 18 and not a party to the within cause of action. My business address is 591 Redwood
Highway, Bldg. 4000, Mill Valley, California 94941. I am readily familiar with my
6 employer's practices for collection and processing of correspondence for mailing with the
United States Postal Service and for pickup by Federal Express.
7
On June 5, 2006 I served a true copy ofthe foregoing NOTICE OF MOTION AND
8 MOTION FOR PEREMPTORY WRIT OF MANDATE. INJUNCTIVE RELIEF. AND
DECLARATORY JUDGrvrnNT; rvrnMORANDUM OF POINTS AND AUTHORlTIES IN
9 SUPPORT OF MOTION FOR PEREMPTORY WRIT OF MANDATE. INJUNCTIVE
RELIEF. AND DECLARATORY JUDGrvrnNT; DECLARATIONS OF MARGUERlTE
10 MARY LEONI. MICHAEL DANNER. DOROTHY STOW. TENNY TSAI-ENG. KUEI-
CHIN LEE AND ANA MARIA ROSATO IN SUPPORT OF PETITION FOR
11 PEREMPTORY WRIT OF MANDATE on the following parties in said action, by serving:
12
PATTY CHI
10273 NORWICH
CUPERTINO, CA 95014
Real Party in Interest
HELAM LUK
10419 DENISON
CUPERTINO, CA 95014
Real Party in Interest
13
14
15
CHARLES T. KILIAN
Cupertino City Attorney
Law Offices of Charles T. Kilian
20410 Town Center Lane, #210
Cupertino, CA 95014
Attorneys for Defendants City Council of
Cupertino and Kimberly Smith, City Clerk of
the City of Cupertino
BY OVERNIGHT DELIVERY:
X FEDERAL EXPRESS: By following ordinary business practices and placing for
pickup by FEDERAL EXPRESS at 591 Redwood Highway, #4000, Mill Valley, CA
on June 5, 2006 copies of the above documents in an envelope or package designated
by FEDERAL EXPRESS with delivery fees paid or provided for.
16
17
18
19
20
21
22
23
U.S. MAIL, EXPRESS MAIL: By placing the above documents in the United States
Mail for Express Mail delivery at Mill Valley, California, in a sealed envelope
addressed as above, with Express Mail postage thereon fully prepaid.
24
25
26
Executed in Mill Valley, California, on June 5, 2006.
I declare under penalty of perjury~~red1 =e and correct.
Ellen Olson
1 NIELSEN, MERKSAMER, PARRINELLO,
MUELLER & NAYLOR, LLP
2 MARGUERITE MARY LEONI, SBN #101696
CHRISTOPHER E. SKlNNELL, SBN #227093
3 SEAN P. WELCH, SBN #227101
591 REDWOOD HIGHWAY, #4000
4 MILL VALLEY, CA 94941
TELEPHONE (415) 389-6800
5 FAX (415)388-6874
6 Attorneys for Petitioner/Plaintiff
DOROTHY STOW
7
8
9
10
11 DOROTHY STOW,
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
12 Petitioner/Plaintiff,
13 vs.
14 KIMBERLY SMITH, City Clerk of the City of
Cupertino; CITY COUNCIL OF THE CITY OF
15 CUPERTINO; CITY OF CUPERTINO;
DOES I-X,
16
Responde nts/De fe ndants.
17
18 PATTI CHI & HELAN LUK,
19
20
21
Real Parties in Interest.
22
23
24
25
26
27
28
)
) Case No. 1-06-CV-063723
)
) DECLARATION OF
) KUEI-CHIN LEE IN SUPPORT OF
) PETITION FOR PEREMPTORY
) WRIT OF MANDATE
)
)
)
) CALENDAR PREFERENCE
) REQUIRED BY STATUTE
) (ELEC. CODE & 13314(a)(3))
)
) Date: June 29, 2006
) Time: 9:00 a.m.
) Dept.: 2
) Judge: The Hon. William J. Elfving
)
)
DECLARA nON OF KUEI-CHIN LEE
11\ I, K=-Cbl. Lee, ~=b:' doolM'"
II
211 1. . . 1 ~ ~iS ~i.~1::U~n in suppor~ i)i 1Jc~r:It.~~ StOW':i rl;ltitilJtI, fUl li P<!;"~'l1!-,"(~fY 'Yhit of
:3 ,Ilvf~~:!.=!~. ,"his dedaranor.. IS cased ;.~" my own perrotl.3.\ knowledg:e and, if called t\:l a wrm.e~ I
: r ~J -:. ,.v~ .::::: :~: ::f=~:':;:~o::~ght of A~J 1$,2006, a
I
61 ~SQJ1 can;e to my house and asked if 1 vrould ~ign a referendum. petition. Tbe persort st;;:.ted that 1he
7; purr.ose of the petition was to urge the Cupertino City C~uncil to reduce the n\1rober cf condominiums
i
8: planned to ~ b::ilt in the City. Throughout her e:<.piana11ot:.. the person ne'\'er ide:t".tified the l(l~ttiQn of
!i
9i
10!
111
12
.1.. ...'Ide 1 .. "h~ r-.... .. .... .......1.._ ..1...._1___....... l~...~";~....._ i_'~ ".I
Woe pro~os ~ ve opmen:s, u..... naJne 0 me: ac\tJU}J1UQlll:ll.ll ioU"" ..". ,,~vp~''''' ~ ----.....,. ...c"_C::_
that. th" referendum petition ~'US a single piece (lfl1aper .that contt:ir.ed a short introduction and then
bl~ :;r-=~~ ~!h~~ '"'OterI': were suppcsed to si~ the dOl:ument. Nothing '.vas altached to the 3ingle-
sh..:...".t petit on. A1 no time: did. I see a. City Council orclinance. I)~ map of the project attacha.i to the
13 petition. The petitiO>.l also did not mention vi ~~~~cribe t'le project LA an)' waJl, ~o the <>dy infonnauon
14 \ \ tl~ila.ble t;) me about the petition "vas wnat th<: clrculat(lr of th.e petition told me. As a result, 1 beheve
I
1511 the j"::f~-CI dum petltion a;J.d the signal.W"l; gathering :oro::ess u.-as misleadiJ:.&. confusing and did not
16 i I provi~, m' with ""wpl"'" WOrmanon .~oo'" tile ~r~.,;""..
1711 3, Although. I can reaG. rom~ English, it ill not my first language. As a. resuit. 1 ha.d my SO~, Hsin
:..~ i! Ki:i\:1 ~:;l~~ ~.!!~ !"~:!ti tH:~ declaration to me in Chine!.e. 1 roily undeucand It
I dj~la re under penalty of perjury under the laws cf the State of California that th~ io~going is UUI:
1:1 I
/!J ~ l.'!.\d c;-o~r. t.
I'
2dl
I ~
21\1
~;ll
Ii
'J' ;!
..~ II
25 I
II
2~ II
2ili
nil
ii
II
1\
E7.e~lJted on jl.1M .....: 20\).5 Jtt Cu.perlinCi: ':::~jf~rrua.
~ ctb rk--
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rJi-:..~IJ~';'-"" , i~~: i-iF :'Z?-~~.l~' TS.~J
<>
,.
I
I
I
I
I
i ..
Stow v. Smith
Santa Clara County Superior Court No. 106CV063723
1
2
PROOF OF SERVICE
(Code Civ. Proc. SS 1011, 1013,2015.5)
(Cal. Rules of Court, rule 2008(e))
3
4
I, the undersigned, declare under penalty of perjury that:
I am a citizen of the United States employed in the County of Marin. I am over the
5 age of 18 and not a party to the within cause of action. My business address is 591 Redwood
Highway, Bldg. 4000, Mill Valley, California 94941. I am readily familiar with my
6 employer's practices for collection and processing of correspondence for mailing with the
United States Postal Service and for pickup by Federal Express.
7
On June 5, 2006 I served a true copy of the foregoing NOTICE OF MOTION AND
8 MOTION FOR PEREMPTORY WRIT OF MANDATE, INJUNCTIVE RELIEF, AND
DECLARATORY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN
9 SUPPORT OF MOTION FOR PEREMPTORY WRIT OF MANDATE, INJUNCTIVE
RELIEF, AND DECLARATORY JUDGMENT; DECLARATIONS OF MARGUERITE
10 MARY LEONI. MICHAEL DANNER, DOROTHY STOW, TENNY TSAI-ENG, KUEI-
CHIN LEE AND ANA MARIA ROSA TO IN SUPPORT OF PETITION FOR
11 PEREMPTORY WRIT OF MANDATE on the following parties in said action, by serving:
12
PATTY CHI
1 0273 NORWICH
CUPERTINO, CA 95014
Real Party in Interest
HELAM LUK
10419 DENISON
CUPERTINO, CA 95014
Real Party in Interest
13
14
15
16
CHARLES T. KILIAN
Cupertino City Attorney
Law Offices of Charles T. Kilian
20410 Town Center Lane, #210
Cupertino, CA 95014
Attorneys for Defendants City Council of
Cupertino and Kimberly Smith, City Clerk of
the City of Cupertino
BY OVERNIGHT DELIVERY:
X FEDERAL EXPRESS: By following ordinary business practices and placing for
pickup by FEDERAL EXPRESS at 591 Redwood Highway, #4000, Mill Valley, CA
on June 5, 2006 copies of the above documents in an envelope or package designated
by FEDERAL EXPRESS with delivery fees paid or provided for.
17
18
19
20
21
22
23
24
25
26
U.S. MAIL, EXPRESS MAIL: By placing the above documents in the United States
Mail for Express Mail delivery at Mill Valley, California, in a sealed envelope
addressed as above, with Express Mail postage thereon fully prepaid.
Executed in Mill Valley, California, on June 5, 2006.
I declare under penalty of perjury~;::red9 =e and correct.
Ellen Olson
2
NIELSEN, MERKSAMER, PARRINELLO,
MUELLER & NAYLOR, LLP
MARGUERITE MARY LEONI, SBN # 101696
CHRISTOPHER E, SKINNELL, SBN #227093
SEAN P. WELCH, SBN #227101
591 REDWOOD HIGHWAY, #4000
MILL VALLEY, CA 94941
TELEPHONE (415) 389-6800
FAX (415) 388-6874
8
IN THE SUPERIOR COURT OF THE ST ATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
26
27
28
Case No. 1-06-CV-063723
DECLARATION OF
ANA MARIA ROSATO IN
SUPPORT OF PETITION FOR
PEREMPTORY WRIT OF
MANDATE
CALENDAR PREFERENCE
REQUIRED BY STATUTE
(ELEC. CODE & 13314(a)(3))
DATE: June 29, 2006
TIME: 9:00 A.M.
DEPT.: 2
JUDGE: Hon. William J. Elfving
25 O:\MML\drafts\20S6.01 Toll Brothers, Inc\Pldgs\Declarations\Rosato DeclarationvS.doc
3
4
5
6
Attorneys for Petitioner/Plaintiff
DOROTHY STOW
7
9
)
)
)
)
)
v. )
13 )
14 KIMBERLY SMITH, City Clerk ofthe City of )
Cupertino; CITY COUNCIL OF THE CITY OF ~
15 CUPERTINO; CITY OF CUPERTINO; DOES I-X)
)
)
)
)
)
)
)
)
)
)
)
)
10
DOROTHY STOW,
11
Petitioner/P laintijJ,
12
16
Respo nde nts/Defe ndants.
17
18 PATTY CHI & HELAM LUK
19
Real Parties in Interest
20
21
22
23
24
DECLARATION OF ANA MARIA ROSATO
.~
.~
.r..
1, An Muriu Rosato, hereby declare:
1. 1 make this declaration in support of Dorothy ~tow'~ Petition for Peremptory Writ of
I
Mandate, This declaration it' based upon my own personal knowledge and, if called as a witness,
I cou Id and would competenLly Lestify under oath to the facts set forth below.
2. r am a self-employed public affajrs con~ult;:lllt and forlT1~r residentllf Cup<:lrtino. Tn April,
J
4
5
6
7
2006 I began to assist with e.ffort:~ to educate Cupertino residents about tl1e proposed Toll
g
Brut er'~ development project. My responsibilitie~ includt=d observing the gathering of
'ignal,,,es in suppOrl of referendom peUlinns tn overturn City of Cupertino Ordinance # '"77,
Wh~Cji ~s ag:J~nst a rezoning the Toll Brother'~ project, and CitY,~)rC~IPerlinO Ordinance # 1975,
WhlC? 15 ag81llst a separate, prop()~ed. development, the "Valleo proJcct-
3.1 Over a 3-day period, from April 8,2006, {O April 22, 20U6, 1 spenc more rhan twenty (20)
~our~ observing tile petition elle"""ors '" they .ltemple~ to gather signature, at the ClIpertillo
PuNk Library and t:he Marina Food Markel.
41 On or abollt April 8,2006. April 9. 2UU6. .nd April 10. 2006, r "b>erved the petilion
circulators at the Cupertino Public; LibrGLry. The circuliltOTs hiJd set out a table with the pctitions,
and ,Aso set out ~jgns slating that the petitions were for the purpose of opposing hundreds of
condlminiums in CupertiJ1o. In addition to the copics or the petitions on the. tahle, about five
Illcnlnd six women drculatcd copies of the petition affixed to clipboards. As people approached
the Jbrary, the; circulators pointed to lh~ir clipboun.ls und ~sked the pl:ltrons to sign the petitions.
AlSo} tl man rode around the area outside the Library on <l bicyde, using a bullhorn to requetillhat
I
people sign the petitions.
5~ As r conducted my work, I waf> almost always within a few feet of the persons c.:irc,:ul<lting
the rtrerendum _petitions,. _Often~ 1 stood right beSiU~ the p~.ti~ion circulators. I also spoke t~)
sever.at of the CJr(.:ulator~, meludlOg the people hold11lg the cllpbo<lrd~ and the man on the bicycle
wiLh the bullhorn, I observed that both pel:il.ion~, the one against Ordinance No. 1977, and the
l,l
It)
II
11
IJ
).1
15
II)
17
18
1':1
20
21
n
2:1
24
15
16
27
one against Ordinance No. 1975, were circulated ror signature rogctllcf by the same people. The
circJators made no efFort to disLinguish one petilion from (he cHheL Only after 1 poimed out to
2
2fl
DECLARATION OF ANA MARIA ROSATU
-.
2
S~YCrfl p.otcntial signers that there Wf;:re actually two pcli ti~ns, related to two separ~tc projects,
dId the clfculatoJ's concede that I was cl)rn~cl and thaL the signors could Ch005C to fagn one and
not t+ otheT. Still, the circulators did not explain the difference between the two pet;!jons '"
mfaI' the SIgnors which project each petltton related to, ] 31so saw that the pctltJOns being
circu ated were single pieces of paper with no other pages attached.
J
4
5
6 fi On or about April 8, 20U6, 1 obs.erved the petition circulaLor~ at the Marina Food MarkeL.
7
Similrr to the scene at t.he Lihrary, the circulaLors had set out a table with [he petitions, and were
requlting th~~t the 111.arke~'S patrons sign [heir p~ti[iOns. Also, as before, petitions were al.so
attaclied ro clIpboards WhICh were held by the cm:ulaLOrs; as they ::Jppro::Jched people enlenng and
IcaVilig the marker,
7 Again, I conducted my work within (,I few feel. of the persons circulating the referendum
petiti )OS and ofttn stood right next to the pctHion circulators. The petition Clgainst Ordinam.:c
8
LJ
10
11
12
13
No, 1977 and the; one against Ordinance No. J975 were circulated ror sigrw.Lurc togethl:r by Lhe
14
same people, Ju::;t a$ T hau obSbrved althe Library, the petitioJl:l being circulated were single
15
piecc:l of paper with no other pages at.tached.
8J At no time during the 20+ hours that r observed the :-.ignatuJ'c gathering process, did I
witn~.:>s the petition circulators provide the potential or actual signers with anything to review and
sign tther than a singh::-page with signature spa\.:e:;. In nO circumstunce did I wil:ne:-l::\ the petition
circuluttlr:; provic.le the potentiul or acLual signers with a copy of any ordinance, ot' offer them
anYIJing to review other than t.he ~ingl~-page, printed front and buck, with spaces whcn~, their
SignJh.lIeS were to be affixf;:d,
j 1 declare und~r penalty of perjury under the laws of the State of Ca.lifornia that the
for )ing is true and correct. Executed on June 5, 2006, aL an Jose, C~tlifor ~.
1 ()
17
18.
l~
20
21
22
2J
24
:25
26
Ana Maria ROi;ato
27
2g
J
IJECLAl{ATJON OF ANA MARIA ROSATO
1
2
Stow v. Smith
Santa Clara County Superior Court No. 1 06CV063 723
PROOF OF SERVICE
(Code Civ. Proc. 99 1011, 1013,2015.5)
(Cal. Rules of Court, rule 2008(e))
3
I, the undersigned, declare under penalty of perjury that:
4
I am a citizen of the United States employed in the County of Marin. I am over the
5 age of 18 and not a party to the within cause of action. My business address is 591 Redwood
Highway, Bldg. 4000, Mill Valley, California 94941. I am readily familiar with my
6 employer's practices for collection and processing of correspondence for mailing with the
United States Postal Service and for pickup by Federal Express.
7
On June 5, 2006 I served a true copy of the foregoing NOTICE OF MOTION AND
8 MOTION FOR PEREMPTORY WRIT OF MANDATE, INJUNCTIVE RELIEF, AND
DECLARATORY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN
9 SUPPORT OF MOTION FOR PEREMPTORY WRIT OF MANDATE, INJUNCTIVE
RELIEF, AND DECLARATORY JUDGMENT; DECLARATIONS OF MARGUERITE
10 MARY LEONI, MICHAEL DANNER, DOROTHY STOW, TENNY TSAI-ENG, KUEI-
CHIN LEE AND ANA MARlA ROSATO IN SUPPORT OF PETITION FOR
11 PEREMPTORY WRIT OF MANDATE on the following parties in said action, by serving:
12
13
PATTY CHI
10273 NORWICH
CUPERTINO, CA 95014
Real Party in Interest
HELAM LUK
10419 DENISON
CUPERTINO, CA 95014
Real Party in Interest
14
15
CHARLES T. KILIAN
Cupertino City Attorney
Law Offices of Charles T. Kilian
20410 Town Center Lane, #210
Cupertino, CA 95014
Attorneys for Defendants City Council of
Cupertino and Kimberly Smith, City Clerk of
the City of Cupertino
BY OVERNIGHT DELIVERY:
X FEDERAL EXPRESS: By following ordinary business practices and placing for
pickup by FEDERAL EXPRESS at 591 Redwood Highway, #4000, Mill Valley, CA
on June 5, 2006 copies of the above documents in an envelope or package designated
by FEDERAL EXPRESS with delivery fees paid or provided for.
16
17
18
19
20
21
22
23
24
25
26
U.S. MAIL, EXPRESS MAIL: By placing the above documents in the United States
Mail for Express Mail delivery at Mill Valley, California, in a sealed envelope
addressed as above, with Express Mail postage thereon fully prepaid.
Executed in Mill Valley, California, on June 5, 2006.
I declare under penalty of perjury a...:re;tj =e and correct.
Ellen Olson
2
NIELSEN, MERKSAMER, PARRINELLO,
MUELLER & NA YLOR, LLP
MARGUERITE MARY LEONI, SBN #101696
CHRISTOPHER E. SKINNELL, SBN #227093
SEAN P. WELCH, SBN #227101
591 REDWOOD HIGHWAY, #4000
MILL VALLEY, CA 94941
TELEPHONE (415) 389-6800
FAX (415) 388-6874
3
4
5
6
Attorneys for Petitioner/Plaintiff
DOROTHY STOW
7
8
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
9
10
)
)
)
)
)
v. )
13 )
14 KIMBERLY SMITI-I, City Clerk of the City of ~
Cupertino; CITY COUNCIL OF THE CITY OF )
15 CUPERTINO; CITY OF CUPERTINO; DOES I-X)
)
)
)
)
)
)
)
)
)
)
)
)
DOROTHY STOW,
11
Petitioner/P laintiff,
12
16
Respondents/Defendants.
17
18
PARTTY CHI & HELAM LUK
19
Real Parties in Interest
20
21
22
23
24
25
26
27
28
Case No. 1-06-CV-063723
DECLARATION OF
MICHAEL DANNER IN SUPPORT
OF PETITION FOR
PEREMPTORY WRIT OF
MANDATE
CALENDAR PREFERENCE
REQUIRED BY STATUTE
(ELEC. CODE & 13314(a)(3))
Date: June 29, 2006
Time: 9:00 a.m.
Dept. : 2
Judge: The Hon. William 1. Elfving
DECLARATION OF MICHAEL DANNER
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1S
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\8
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2J
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I. Michael Danner, herc;by declare::
1. I make this declaration in support of Dorothy Stow's Petition for a Peremptory Writ of
Mandate. This declaration is based 'Upon my own personal knowledge,
2. I am a registered voter in the City of Cupertinn.
3. In early Al'ril, 2006, t'-Vo men came to the front door of my home in Cupertino and
requested that I sign 9. petition. The men told me that they wanted to stop the constrUction of
condominiums in Cupertino and then showed me a piece of paper where I could place my
signature. Nothing was arrac:hed 'to this piece ofpaper, Also, the face of the piece of the paper
did not identify what it was for or what it related to.
4. Because I am generally concerned about the possible over-developmem of Cupertino, I
signed the petition.
5. Later, however, I learned that the petition I signed wa:s belng circulated to overturn a city
ordinance related to the Toll Brothers' development project, a prqject that I support due to its
inclusion of senior housing, parks, and retail shops. The petition '\hat was brought 'to my doo! in
April said nothing about impacting the Toll Brothers' project. The men at my door simply
informed me thaI me petition would prevc::nt too many condos from. being built in Cupertin.o.
There was no further informatioD or explanation on the petition and nothing was anached.
6, Sinc;c signing the petition, I have reviewed the ordinance that the petition seeks to
overturn, Ordinance # 1977, and I am certain that it was not attached to the petition that 1 signed.
7. Had I been penni'tted to read. the ordinance before signing !be petition, or if the petition
explained that it would impact the Toll Brothers' project, I would not have signed it.
I declare under penalry of perjury under the laws of the State of California that the foregoing
is true and correct. Executed on June 1, 2006 at Cupertino, California,
. c:... ... ~ I '-- ~ - d ~
MiCh~ S
2
DEC~~nONOFNa~1AELDANNER
1
Stow v: Smith
Santa Clara County Superior Court No. 106CV063723
PROOF OF SERVICE
(Code Civ. Proc. 99 1011, 1013,2015.5)
(Cal. Rules of Court, rule 2008(e))
2
3
4
I, the undersigned, declare under penalty of perjury that:
I am a citizen of the United States employed in the County of Marin. I am over the
5 age of 18 and not a party to the within cause of action. My business address is 591 Redwood
Highway, Bldg. 4000, Mill Valley, California 94941. I am readily familiar with my
6 employer's practices for collection and processing of correspondence for mailing with the
United States Postal Service and for pickup by Federal Express.
7
On June 5, 2006 I served a true copy of the foregoing NOTICE OF MOTION AND
8 MOTION FOR PEREMPTORY WRIT OF MANDATE, INJUNCTIVE RELIEF, AND
DECLARATORY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN
9 SUPPORT OF MOTION FOR PEREMPTORY WRIT OF MANDATE. INJUNCTIVE
RELIEF, AND DECLARATORY JUDGMENT; DECLARATIONS OF MARGUERITE
10 MARY LEONI. MICHAEL DANNER, DOROTHY STOW, TENNY TSAI-ENG, KUEI-
CHIN LEE AND ANA MARIA ROSATO IN SUPPORT OF PETITION FOR
11 PEREMPTORY WRIT OF MANDATE on the following parties in said action, by serving:
12
13
PATTY CHI
10273 NORWICH
CUPERTINO, CA 95014
Real Party in Interest
HELAM LUK
10419 DENISON
CUPERTINO, CA 95014
Real Party in Interest
14
15
16
17
CHARLES T. KILIAN
Cupertino City Attorney
Law Offices of Charles T. Kilian
20410 Town Center Lane, #210
Cupertino, CA 95014
Attorneys for Defendants City Council of
Cupertino and Kimberly Smith, City Clerk of
the City of Cupertino
BY OVERNIGHT DELIVERY:
X FEDERAL EXPRESS: By following ordinary business practices and placing for
pickup by FEDERAL EXPRESS at 591 Redwood Highway, #4000, Mill Valley, CA
on June 5, 2006 copies of the above documents in an envelope or package designated
by FEDERAL EXPRESS with delivery fees paid or provided for.
18
19
20
21
22
23
24
U.S. MAIL, EXPRESS MAIL: By placing the above documents in the United States
Mail for Express Mail delivery at Mill Valley, California, in a sealed envelope
addressed as above, with Express Mail postage thereon fully prepaid.
25
Executed in Mill Valley, California, on June 5, 2006.
I declare under penalty of perjury~~red)l ~ue and correct.
Ellen Olson
26
2
NIELSEN, MERKSAMER, PARRINELLO,
MUELLER & NAYLOR, LLP
MARGUERITE MARY LEONI, SBN #101696
CHRISTOPHER E. SKINNELL, SBN #227093
SEAN P. WELCH, SBN #227101
591 REDWOOD HIGHWAY, #4000
MILL VALLEY, CA 94941
TELEPHONE (415) 389-6800
FAX (415) 388-6874
3
4
5
6
AttorneJls for Petitioner/Plaintiff
DOROTHY STOW
7
8
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
9
)
)
)
)
)
v. )
13 )
14 KIMBERL Y SMITH, City Clerk of the City of ~
Cupertino; CITY COUNCIL OF THE CITY OF )
15 CUPERTINO; CITY OF CUPERTINO; DOES I-X)
)
)
)
)
)
)
)
)
)
)
)
)
10
DOROTHY STOW,
11
Petitioners/Plaintiffs ,
12
16
Respondents/Defe ndants.
17
18
PATTY CHI & HELAM LUK
19
Real Parties in Interest
20
21
22
23
24
25
26
27
28
Case No. 1-06-CV-063723
DECLARATION OF
DOROTHY STOW IN SUPPORT
OF PETITION FOR
PEREMPTORY WRIT OF
MANDATE
CALENDAR PREFERENCE
REQUIRED BY STATUTE
(ELEC. CODE & 13314(a)(3))
Date: June 29, 2006
Time: 9:00 a.m.
Dept.: 2
Judge: The Hon. William 1. Elfving
DECLARATION OF DOROTHY STOW
I, Dorothy Stow, hereby declare:
2 1. I make this declaration in support ofthe Petition for a Peremptory Writ of Mandate and
3 Complaint for Injunctive and Declaratory Relief on file in this action. This declaration is based
4 upon my own personal knowledge and, if called as a witness, I could and would competently
5 testify under oath to the facts set forth below.
6 2. I am a registered voter in the City of Cupertino and, in July, 2006, I will have been a
7 resident of the City of Cupertino for forty (40) years. I care deeply about this community and
8 have been involved in several civic-minded, local organizations fOf many years. I am a longtime
9 member and former president-elect of the Cupertino Chamber of Commerce, which, in 1999,
10 named my husband and me "Co-citizens of the Year" for our commitment and service to the City
11 of Cupertino. For twelve years, I also served on the Cupertino Community Service Board, both
12 as a member and as a president. I am a supporter of the mixed use development proposed to be
13 constructed by Toll Brothers Inc. primarily because the project includes a residential component
14 with senior housing, which I believe to be badly needed in Cupertino.
15 3. On Saturday, April 1,2006, I went to the City of Cupertino public library, where I
16 observed a small group of people gathering signatures on petitions. I had earlier learned that a
17 group of people were interested in circulating a referendum petition to overturn the City
] 8 Council's recent vote to approve rezoning ordinances for the Toll Brothers project and another,
19 different proposed development project in the City proposed by Valleo. Given my support for the
20 Toll Brothers project, I wanted to learn about the petition process and the reasons behind it. I
2L approached a woman holding one of the clipboards with petitions on it, and she asked me if I
22 would like to sign the petition. She handed me the clipboard which contained several sheets of
23 paper. I read the piece of paper on top of the stack and saw spaces for people to affix their
24 signatures. The piece of paper stated it was related to City Ordinance No. 1977, but I could not
25 find an explanation of that Ordinance, I did not see any information regarding the actual subject
26 matter of the petition, and I could not find any information that indicated whether the petition
27 pertained to the Valko project or the Toll Brothers project. I asked the woman who handed me
28 the clipboard if I was looking at the full text of the petition. She replied, "No, it is underneath."
2
DECLARATION OF DOROTHY STOW
2
I flipped the top page to see what was below it. I wanted to mow what this petition was about.
The next page, however, was the same as the first with spaces for signatures. I flipped to the
next page, which was also in the same format as the two before it. Again, I flipped the page, but
this time, the woman reached over the clipboard and closed the pages I had flipped open,
preventing me from reading what was underneath. I tried again to flip to the pages below the
first pages, but once again, the woman reached over the clipboard and closed the stack of papers.
3
4
j
6
7
She then took the clipboard from me, thus preventing me from reading the petition. As I
observed her, she continued to obtain signatures from other persons.
4, Given my experience with the woman at the library, I sought to become more
knowledgeable about the petitions. I obtained and reviewed a copy of Ordinance No. 1977 which
is several pages long and includes diagrams, and I determined that it was not amongst the pieces
of paper I saw before the woman took the clipboard away from me. Hence, to this day, I do not
know which petition was presented to me.
5. On Sunday, April 2, 2006, I was out walking with my husband when it began to rain. We
stopped into the Coffee Society, a cafe, to obtain a newspaper to cover my head from the rain.
As I entered the cafe, a woman stopped me and said, HPlease sign my petition to stop the City
Council from passing this development." In her hands, she held hvo single pieces of paper, one
in each band. In one hand, she held a single sheet of paper where I was asked to place my
signature. It appeared to be identical to the pages I had reviewed outside tbe library. In the other
hand, she held a piece of paper that contained some information about proposed development in
Cupertino. Neither piece of paper contained the text of any ordinance.
I declare under penalty ofpe:tjury under the laws of the State of California that the foregoing
is true and correct. Executed on June ~, 2006 at Cupertino, California,
8
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i\ ~
A ~ . .
/ /J7c
Dorothy Sto - .
25
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27
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3
DECLARATION OF DOROTHY STOW
24
25
26
Stow v: Smith
Santa Clara County Superior Court No. 106CV063723
2
PROOF OF SERVICE
(Code Civ. Proc. SS 1011, 1013,2015.5)
(Cal. Rules of Court, rule 2008(e))
3
4
I, the undersigned, declare under penalty of perjury that:
I am a citizen of the United States employed in the County of Marin. I am over the
5 age of 18 and not a party to the within cause of action. My business address is 591 Redwood
Highway, Bldg. 4000, Mill Valley, California 94941. I am readily familiar with my
6 employer's practices for collection and processing of correspondence for mailing with the
United States Postal Service and for pickup by Federal Express.
7
On June 5, 2006 I served a true copy of the foregoing NOTICE OF MOTION AND
8 MOTION FOR PEREMPTORY WRIT OF MANDATE, INJUNCTIVE RELIEF, AND
DECLARATORY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN
9 SUPPORT OF MOTION FOR PEREMPTORY WRIT OF MANDATE, INJUNCTIVE
RELIEF, AND DECLARATORY JUDGMENT; DECLARATIONS OF MARGUERITE
10 MARY LEONI, MICHAEL DANNER, DOROTHY STOW, TENNY TSAI-ENG. KUEI-
CHIN LEE AND ANA MARIA ROSATO IN SUPPORT OF PETITION FOR
11 PEREMPTORY WRIT OF MANDATE on the following parties in said action, by serving:
12
13
PATTY CHI
10273 NORWICH
CUPERTINO, CA 95014
Real Party in Interest
HELAM LUK
10419 DENISON
CUPERTINO, CA 95014
Real Party in Interest
14
15
16
CHARLES T. KILIAN
Cupertino City Attorney
Law Offices of Charles T. Kilian
20410 Town Center Lane, #210
Cupertino, CA 95014
Attorneys for Defendants City Council of
Cupertino and Kimberly Smith, City Clerk of
the City of Cupertino
BY OVERNIGHT DELIVERY:
X FEDERAL EXPRESS: By following ordinary business practices and placing for
pickup by FEDBRAL EXPRESS at 591 Redwood Highway, #4000, Mill Valley, CA
on June 5, 2006 copies of the above documents in an envelope or package designated
by FEDERAL EXPRESS with delivery fees paid or provided for.
17
18
19
20
21
22
23
U.S. MAIL, EXPRESS MAIL: By placing the above documents in the United States
Mail for Express Mail delivery at Mill Valley, California, in a sealed envelope
addressed as above, with Express Mail postage thereon fully prepaid.
Executed in Mill Valley, California, on June 5, 2006.
I declare under penalty of perjury~~red:i =e and correct.
Ellen Olson
2
NIELSEN, MERKSAMER, PARRINELLO,'
MUELLER & NAYLOR, LLP
MARGUERITE MARY LEONI, SBN #101696
CHRISTOPHER E. SKINNELL, SBN #227093
SEAN P. WELCH, SBN #227101
591 REDWOOD HIGHWAY, #4000
MILL VALLEY, CA 94941
TELEPHONE (415) 389-6800
FAX (415) 388-6874
8
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
Case No. 106CV063723
FIRST AMENDED PETITION
FOR PEREMPTORY WRIT OF
MANDATE AND COMPLAINT
FOR PERMANENT
INJUNCTION AND
DECLARATORY JUDGMENT
CALENDAR PREFERENCE
REQUIRED BY STATUTE
(ELEC. CODE ~ 13314(a)(3))
21
INTRODUCTION
23
1.
This is an action brought in the public interest to enforce mandatory
24 provisions of the California Elections Code. By this lawsuit, Petitioner seeks an order
25 prohibiting the placement of two referendum petitions on the Cupertino municipal ballot
26 because they violate Elections Code sections 9011 and 9237.5. In these statutes the
27 Legislature has mandated the inclusion of specific information on referendum petitions
28
3
4
5
6
Attorneys for Petitioner/Plaintiff
DOROTHY STOW
7
9
10
11
DOROTHY STOW,
12
Petitioner/P la in tiff,
v.
13
14
KIMBERLY SMITH, City Clerk of the City
of Cupertino; CITY COUNCIL OF THE CITY
OF CUPERTINO; DOES I-X,
15
16
Respondents/Defendants.
17
18
PATTY CHI & HELAM LUK,
19
Real Parties in Interest.
20
22
FIRST AMENDED PETITION FOR PEREMPTORY WRIT OF MANDATE AND
COMPLAINT FOR PERMANENT INJUNCTION AND DECLARATORY JUDGMENT
including a descriptive title to inform potential signers about the natl,lre and subject matter
2 of the petition and enable them to make an informed decision about whether to sign the
3 petition or not. The required information was not included on the referendum petitions at
4 issue, which were also circulated in a manner that made it impossible for potential signers
5 to learn for themselves what the petitions were all about. The referendum petitions
6 concerned two unrelated projects. They were circulated simultaneously by the same
7 circulators. The second petitions were identical except for the number of the ordinance
8 being referred. Sections of the petitions, however, were circulated without the ordinance,
9 making it virtually impossible to tell the petitions apart. Pre-election invalidation is
10 proper where, as here, the referendum petitions are facially defective because it does not
11 include the descriptive information mandated by statute. Pre-election invalidation is
12 especially appropriate in this case because the referendum petitions were circulated in
13 violation of the law and in manner that could mislead signers.
14 PARTIES
15
2.
Petitioner/PlaintiffDOROTHY STOW is a resident, registered voter, and
16 taxpayer in the City of Cupertino.
17 3. Respondent/Defendant CITY CLERK is the duly appointed elections
18 officer of the City of Cupertino and in that capacity is responsible for the conduct of
19 Cupertino municipal elections. One ofthe ministerial duties imposed upon her by the
20 Elections Code is to review initiative, referendum and recall petitions submitted to her
21 office, and ascertain the petition's compliance with the Elections Code's requirements for
22 the format of such petitions. She has a ministerial duty under the Code to reject any
23 petition that does not comply with those formatting requirements.
24
4.
Respondent/Defendant CITY COUNCIL is the legislative body of the City
25 of Cupertino, a municipal corporation, duly organized and existing under the laws of the
26 State of California located in the County of Santa Clara. Under the Elections Code,
27 Respondent CITY COUNCIL has ministerial obligations with respect to the processing of
28 referendum petitions including refusing to place facially defective petitions on the ballot.
2
FIRST AMENDED PETITION FOR PEREMPTORY WRIT OF MANDATE AND
COMPLAINT FOR PERMANENT INJUNCTION AND DECLARATORY JUDGMENT
5. Petitioner is unaware of the true names and capacities of
2 Respondents/Defendants DOES I through X, and sue such Respondents by fictitious
3 names. Petitioner is informed and believe, and based upon such information and belief
4 allege, that each of the fictitiously named Respondents is in some manner responsible for
5 the actions described in this Petition. When the true identities and capacities of these
6 Respondents have been determined, Petitioner will seek leave to amend this Petition and
7 Complaint to insert such identities and capacities.
8
6.
Real Parties in Interest PATTY CHI and HELAM LUK are the proponents
9 of two referendum petitions, including the one challenged by this lawsuit. The referenda
10 seek to overturn Ordinance # 1977 and Ordinance # 1975 ofthe Cupertino City Council.
11 True and correct copies of the referendum petitions for Ordinances 1977 and 1975 are
12 attached hereto as Exhibit 1 and Exhibit 2, respectively, and incorporated herein by this
13 reference.
14
7.
Real Parties circulated or caused to be circulated for signature in the City of
15 Cupertino the two referendum petitions against two separate and unrelated ordinances and
16 thereafter submitted the signed sections of the respective referendum petitions to the
17 Respondent CITY CLERK. The two petitions were circulated simultaneously by the
18 same circulators.
19
8.
Upon receiving the petition sections, Petitioner is informed and believes,
20 and on that basis alleges, that Respondent CITY CLERK forwarded them to the Registrar
21 of Voters of the County of Santa Clara for review and verification of the number of valid
22 signatures appended thereto. Petitioner is further informed and believes, and on that basis
23 alleges, that on May 2, 2006, the Registrar of V oters informed Respondent CITY CLERK
24 there were sufficient valid signatures to qualifY both referendum petitions for the ballot.
25
9.
Petitioner is informed and believes, and on that basis alleges, that
26 Respondent CITY CLERK certified the results of the signature-verification to
27 Respondent CITY COUNCIL at the Council's regularly-scheduled meeting on May 16,
28 2006. Petitioner is also informed and believes, and on that basis alleges, that upon
3
FIRST AMENDED PETITION FOR PEREMPTORY WRIT OF MANDATE AND
COMPLAINT FOR PERMANENT INJUNCTION AND DECLARATORY JUDGMENT
receiving the CITY CLERK'S certification, Respondent CITY COUNCIL is now
2 considering placing Ordinance #1977 and Ordinance # 1975 on the ballot. For the
3 reasons discussed below, the referenda are not entitled to a place on that ballot.
4 GENERAL ALLEGATIONS
5
10.
Ordinance #1977 of the Cupertino City Council, adopted at the Council's
6 March 21, 2006, meeting, would rezone a 32.58 gross acre parcel to Planned Residential
7 and Commercial, PeRes, Com), and Public Park, PR, in accordance with a project to build
8 380 residential units (300 market rate and 80 low income senior apartments), a 115,600
9 square foot commercial center, and a 3.5 acre public park. The parcel to be rezoned is
10 located north of Stevens Creek Boulevard and south ofI-280, and between Tantau
11 Avenue and Finch Avenue. The applicant is Toll Brothers, Inc. (For the sake of clarity,
12 all further references to Ordinance # 1977 herein will be to the "Toll Brothers
13 Ordinance.")
14
11.
Ordinance #1975 of the Cupertino City Council, adopted on March 22,
15 2006, would rezone a 5.19 parcel from Planned Development (Regional Shopping), to
16 Planned Development (Regional Shopping/Residential). The parcel to be rezoned is
17 located at 10123 N. Wolfe Road in Cupertino. The project applicant is Vallco. (To
18 distinguish from the Toll Brothers Ordinance, all further references to Ordinance #1975
19 herein will be to the "Vallco Ordinance.")
20
12.
The only difference between the referendum petition against the Toll
21 Brothers Ordinance and the referendum petition against V allco Ordinance was a single
22 digit in the referred ordinance number.
23
13.
The development project associated with the Toll Brothers Ordinance is not
24 related to the development project associated with the Vallco Ordinance; they are separate
25 projects.
26 III
27 III
28
4
FIRST AMENDED PETITION FOR PEREMPTORY WRIT OF MANDATE AND
COMPLAINT FOR PERMANENT INJUNCTION AND DECLARATORY JUDGMENT
2
14.
Violation of Elections Code ~~ 9011 & 9237.5.
Section 9011 of the California Elections Code states in relevant part,
3 "Across the top of each page after the first page of every referendum petition or section of
4 a referendum petition, which is prepared and circulated, there shall be printed in 18-point
5 gothic type a short title, in 20 words or less, showing the nature of the petition and the
6 subject to which it relates." The purpose of this requirement is to provide potential
7 signers of the petition with sufficient, relevant information to enable them to make an
8 informed decision about whether or not to sign the petition.
9
15.
Section 9237.5 makes this "short title" requirement applicable to municipal
10 referendum petitions like those at issue in this case.
11
16.
The referendum petition seeking to overturn the Toll Brothers Ordinance
12 violated Sections 9011 and 9237.5, because it did not contain a "short title" as required by
13 those sections. (See Exhibit 1.) The referendum petition seeking to overturn the Valko
14 Ordinance was also lacking a short title, (See Exhibit 2.) Failure to comply with this
15 requirement is grounds for the referenda's removal from the ballot. Because the face of
16 the petitions are wholly devoid of any explanation of the nature or subject matter of the
17 ordinance at issue, referring solely to the number of the ordinance, there is no way for the
18 potential signers to know what the referendum petitions are about.
19
17.
In addition, because the text of Ordinance Nos. 1977 and 1975 merely
20 outline certain zoning classification changes and do not include a description of the actual
21 development projects approved through the rezoning, the absence of a short title was even
22 more detrimental to the public's ability to understand the subject matter of the referendum
23 petitions. Without being provided with the requisite short title, the public simply had no
24 way of knowing the nature, scope, or impact of the separate, unrelated development
25 projects affected.
26 Violation of Elections Code ~ 9238.
27
18.
Section 9238(b)(2) of the Elections Code requires that a referendum
28 petition contain "the text of the ordinance or the portion of the ordinance that is the
5
FIRST AMENDED PETITION FOR PEREMPTORY WRIT OF MANDATE AND
COMPLAINT FOR PERMANENT INJUNCTION AND DECLARATORY JUDGMENT
subject of the referendum." A petition may be circulated in sections, but all sections must
2 contain the text of the referred ordinance. The purpose of this requirement is to provide
3 relevant information to potential signers to enable them to make an informed decision
4 about whether or not to sign the referendum petition. Failure to comply with this
5 requirement is grounds for the referendum's removal from the ballot.
6
19.
Sections of the referendum against the Toll Brothers Ordinance were
7 circulated without the text of the referred ordinance attached thereto.
8
20.
Sections of the referendum against the Vallco Ordinance were circulated
9 without the text of the referred ordinance attached thereto.
10 Violation of Elections Code ~ 18601.
11
21.
Petitioner was also intentionally prohibited from reading the entire text of
12 the petition when it was presented to her for signature. This denial violated Elections
13 Code section 18601 which protects the right of prospective signers to read a referendum
14 petition or measure.
15
22.
The absence of the "short titles" from the petitions, in violation of Section
16 9011, the absence of the ordinance text from the petition, in violation of Section
17 923 8(b )(2), and the refusal to allow potential signers read the petition, deprived petition
18 signers of vital information that would have allowed them to inform themselves about the
19 subject matter of the petition, to distinguish between the petition against the Toll Brothers
20 Ordinance and the petition against the Vallco Ordinance, and thereby, make an informed
21 decision about the nature of the petitions they were being asked to sign and whether to
22 sign one, both, or none of them.
23
23.
Petitioner has no plain, speedy and adequate remedy in the ordinary course
24 of law, in that no damages or other legal remedy could compensate her for the harm that
25 she and the electors of the City of Cupertino will suffer if the referendum petitions are
26 submitted to the voters in contravention of statutory requirements.
27 III
28 III
6
FIRST AMENDED PETITION FOR PEREMPTORY WRIT OF MANDATE AND
COMPLAINT FOR PERMANENT INJUNCTION AND DECLARATORY JUDGMENT
FIRST CAUSE OF ACTION
2 (For Petition for Writ of Mandate)
3 (Pursuant to Code of Civil Procedure ~ 1085 & Elections Code ~ 13314)
4
24.
Petitioner realleges and incorporates herein by reference each and every
5 allegation contained in paragraphs 1 through 23, above.
6
25.
Code of Civil Procedure S 1085 authorizes issuance of a writ of mandate to
7
compel the performance of a ministerial duty by government officials, providing:
A writ of mandate may be issued by any court to any inferior tribunal, corporation,
board, or person, to compel the performance of an act which the law specially
enjoins, as a duty resulting from an office, trust, or station, or to compel the
admission of a party to the use and enjoyment of a right or office to which the
party is entitled, and from which the party is unlawfully precluded by such inferior
tribunal, corporation, board, or person.
8
9
10
11
12
26.
Likewise, Elections Code S 13314 provides in relevant part:
13
(a)(l) Any elector may seek a writ of mandate alleging that an error or
omission has occurred, or is about to occur, in the placing of any name on,
or in the printing of. a ballot, sample ballot, voter pamphlet, or other official
matter, or that any neglect of duty has occurred, or is about to occur....
(2) A peremptory writ of mandate shall issue only upon proof of both of the
following: (A) that the error, omission, or neglect is in violation of this
code or the Constitution, and (B) that issuance of the writ will not
substantially interfere with the conduct of the election.
(3) The action or appeal shall have priority over all other civil matters.
(Emphasis added.)
14
15
16
17
18
19
20
21
27.
Respondents have a ministerial duty to refuse to process any referendum
22 petition for the ballot that fails to comply with statutory requirements.
23
28.
The Toll Brothers Ordinance and the Vallco Ordinance referendum
24 petitions fail to comply with the statutory requirements governing the required format of
25 such petitions; specifically, they fail to comply with California Elections Code SS 9011,
26 9237.5, and 9238.
27
29.
If not otherwise directed by this Court's issuance of a writ of mandate,
28 Respondents will continue to take steps to process the referendum petitions for inclusion
7
FIRST AMENDED PETITION FOR PEREMPTORY WRIT OF MANDATE AND
COMPLAINT FOR PERMANENT INJUNCTION AND DECLARATORY JUDGMENT
on the next regularly-scheduled municipal ballot or for a special election called prior
2 thereto.
3
30.
The writ will not interfere with the conduct of the election. Petitioner is
4 informed and believes, and on that basis alleges, that the ballot materials for the
5 November, 2006 election will not be set for printing until September, 2006, at the earliest.
6 SECOND CAUSE OF ACTION
7 (For Injunctive Relief)
8 (Pursuant to Code of Civil Procedure ~ 526a)
9
31.
Petitioner realleges and incorporates herein by reference each and every
10 allegation contained in paragraphs 1 through 30, above.
11
32.
Petitioner has no plain, speedy, and adequate remedy at law, in that in the
12 absence of this Court's injunction, Respondents will continue to take steps to process the
13 referendum petitions for the ballot. Such actions will violate the Elections Code and
14 constitute a waste of taxpayer funds.
15
33.
Code of Civil Procedure S 526a authorizes issuance of an injunction to
16 prevent and restrain the illegal andlor wasteful expenditure of public funds.
17 THIRD CAUSE OF ACTION
18 (For Declaratory Relief)
19 (Pursuant to Code of Civil Procedure ~ 1060)
20
34.
Petitioner re-alleges and incorporates herein by reference each and every
21 allegation contained in paragraphs 1 through 33, above.
22
35.
A dispute has arisen between Petitioner, on the one hand, and Respondents,
23 on the other. Petitioner believes and contends, as set forth above, that the referendum
24 petitions are unlawful and that Respondents cannot process the Toll Brothers Ordinance
25 referendum petition or the Vallco Ordinance referendum petition for the ballot. Petitioner
26 is informed and believes, and on that basis alleges, that Respondents believe they are
27 required to take all the steps necessary to place the referenda on the ballot unless ordered
28 not to do so by this court. A judicial declaration is therefore necessary and appropriate
8
FIRST AMENDED PETITION FOR PEREMPTORY WRIT OF MANDATE AND
COMPLAINT FOR PERMANENT INJUNCTION AND DECLARATORY JUDGMENT
regarding the validity of the referendum petitions and Respondents' duties in regard
2 thereto.
3 PRAYER FOR RELIEF
4 WHEREFORE, Petitioner respectfully prays for judgment as follows:
5
1.
On the First Cause of Action, that this Court issue its alternative writ of
6 mandate commanding Respondents and all persons acting pursuant to their direction and
7 control either (a) to take no further steps to process the referendum petition against the
8 T oIl Brothers Ordinance (Ordinance # 1977) for the next Cupertino municipal ballot, or
9 special election called prior thereto, and instead to remove the referendum from the ballot
10 or (b) in the alternative, to show cause why they have not done so.
11
2.
On the First Cause of Action, that this Court issue its alternative writ of
12 mandate commanding Respondents and all persons acting pursuant to their direction and
13 control either (a) to take no further steps to process the referendum petition against the
14 Vallco Ordinance (Ordinance #1975) for the next Cupertino municipal ballot, or special
15 election called prior thereto, and instead to remove the referendum from the ballot or (b)
16 in the alternative, to show cause why they have not done so.
17
3.
On the First Cause of Action, that this Court issue its peremptory writ of
18 mandate commanding Respondents and all persons acting pursuant to their direction and
19 control to take no further steps to process the referendum against the Toll Brothers
20 Ordinance (Ordinance # 1977) for the next Cupertino municipal ballot or special election
21 called prior thereto andlor to remove the referendum from the ballot.
22
4.
On the First Cause of Action, that this Court issue its peremptory writ of
23 mandate commanding Respondents and all persons acting pursuant to their direction and
24 control to take no further steps to process the referendum against the Vallco Ordinance
25 (Ordinance # 1975) for the next Cupertino municipal ballot or special election called prior
26 thereto and/or to remove the referendum from the ballot.
27
5.
On the Second Cause of Action, that this Court issue a permanent
28 injunction mandating Respondents and all persons acting pursuant to their direction and
9
FIRST AMENDED PETITION FOR PEREMPTORY WRIT OF MANDATE AND
COMPLAINT FOR PERMANENT INJUNCTION AND DECLARATORY JUDGMENT
control to take no further steps to process the referendum against the Toll Brothers
2 Ordinance (Ordinance # 1977) for the next Cupertino municipal ballot or special election
3 called prior thereto andlor to remove the referendum from the ballot.
4
6.
On the Second Cause of Action, that this Court issue a permanent
5 injunction mandating Respondents and all persons acting pursuant to their direction and
6 control to take no further steps to process the referendum against the Vallco Ordinance
7 (Ordinance # 1975) for the next Cupertino municipal ballot or special election called prior
8 thereto andlor to remove the referendum from the ballot.
9
7.
On the Third Cause of Action, that this Court issue its judgment declaring
10 that Respondents' steps to process the referendum petitions and put the referenda on the
11 ballot are unlawful and that the referenda are of no force or effect.
12
8.
On each and every cause of action, that this Court grant such other,
13 different or further relief as the Court may deem just and proper, including costs of suit.
14
15
Dated: June 5, 2006
NIELSEN, MERKSAMER, PARRINELLO,
MUELLER & NAYLOR, LLP
16
17
19
~
By: .
Marg e e Mary LeonI
Christopher E. Skinnell
Sean P. Welch
Attorneys for Petitioner/Plaintiff
DOROTHY STOW
18
20
21
22
23
24
25
26
27
28
10
FIRST AMENDED PETITION FOR PEREMPTORY WRIT OF MANDATE AND
COMPLAINT FOR PERMANENT INJUNCTION AND DECLARATORY JUDGMENT
VERlFICA nON
2
3 I am a petitioner in the above-titled matter. I have read the foregoing FIRST
4 AMENDED PETITION FOR PEREMPTORY WRIT OF MANDATE AND
5 COMPLAINT FOR PERMANENT INJUNCTION AND DECLARATORY
6 JUDGMENT. I know the factual contents thereof, and the same is true of my own
7 knowledge, except as to matters therein stated on information and beliefl and as to those
8 matters, I believe it to be true.
9 I declare under penalty of perjury under the laws of the State of California that the
10 foregoing is true and correct.
11
Executed on June S, 2006, at C I...Y\'"E. R.TI 1\1(')
.. California.
13
D~~~
DOROTHY tow
12
[4
t5
]6
17
18
19
20
21
22
23
24
25
26
27
2&
11
FIRST AMENDED PETITION FOR PEREMPTORY WRlT OF MANDATE AND
COMPLAINT FOR PERMANENT INJUNCTION AND DECLARATORY JUDGMENT
REFERENDUM AGAINST AN ORDINANCE PASSED BY THE CITY COUNCIL
ORDINANCE #1977
. 0 re ~ re n ~y7 ~ \1"\
NOTICE TO THE PUBLIC: U; liD U; U I:!J b \1\ \
THlS PETlTlON MAY BE CIRCULATED BY A P AID SIGNATURE GAT . OR A VOLUNTEERl' 1)1
YOU HA YE THE RlGHT TO ASK. . \ UI p.PR 1 9 2006 .ll::.
THE USE OF YOUR SIGNATURE FOR ANY PURPOSE OTHER THAN' AL ICATION OF THIS
MEASURE FOR THE BALLOT IS A MISDEMEANOR. COtvfPLAINTS OU UR
SIGNATURE MAY BE MADE TO THE SECRETARY OF STATE'S OFFl ~UPERTI ~~O CITY CLERK
-
To the Honorable City Council of the City of-CUpertino .,
We, the undersigned, registered, qualified voters of California, residents of the City of Cupertino hereby
protest the adoption of Ordinance #1977 and petition.the City Council to either rescind its approval of said :.
ordinance or submit the same to the voters of Cupertino for their adoption or rejection at the next succeeding
regularly scheduled municipal election. The full text of said Ordinance #1917 is attached to this petition. .
4'=:~'.J,-:::------'-'--"'-"""-:~----" ..,
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No.
Date
pRINT name as registered on top line,'
Signature as registered on bottom line
'PrintResidence Address
City on bottomli.D~ -:0;--'
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EXHIBIT .-L
Page ~ of
,;< () Pages
REFERENDUM AGAINST AN ORDINANCE PASSED BY THE CITY COUNCIL
ORDINANCE #1977
No.
Date
PRINT name as registered on top line,
Signature as r~gi~tered on bottom line .
Print Residence Address
City on bottom line
For clerk's
use oiliy
11 1 /06 "
12 1 / 6 ~
'0 }
13 I I ()/06: . . - ,':--:. . . ,.
t _.__._.__...._.--::-~:..,.,'--:""---_...._--_.-~------_.""_.._-.-._.--..._.._-_.""~
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____ ____ _ _. __ ___ DECLARATION OF CIRCULAT6R~'''~-"~'~'---
....~_..,L..:__
20 1 106
"-~r;-""-"fo'l~~":'&:(;O,:""'l"""""':;""--'--l.'~.,;.,iuo.:.:,;;~.~.:;i
I, - . , a registered and qualified voter in the City of Cupertmo, circulated
this petition secdo'; All of the signatures on this section of the petition were made in my presence and, .to' the..
best of my knowledge and belief, each signature is the genuine signature of the person whose name it purPorts
to be. My residential address is _ .,--, . ' Cupertino; California. All
signatures on this petition section were obtained between _ . _,2006 and .-'
2006. I certify under penalty of perjury under the laws ofth~- S~te of California that the foregoing is tnle and
correct. Executed at Cupertino, California on _ _,2006.
(full sign~e tJ{~i~--ril~tolrr
EXHIBIT -L-
Page ~ of
~O Pages
,
ORDINANCE NO. 1977
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
REZONING OF AN 32.58 GROSS ACRE PARCEL FROM PLANNED INDUSTRIAL
ZONE, P(MP), TO PLANNED RESIDENTIAL AND COMMERCIAL, P(RES, COM),
AND PUBLIC PARK, PR, LOCATED AT NORTH OF STEVENS CREEK BOULEVARD
AND SOUTH OF 1-280 BETWEEN T ANT AU AVENUE AND FINCH AVENUE
(TOLL BROTHERS)
WHEREAS, an application was received by the City (Application no. 2-2005-04) for the
rezoning of a property to PlaMed Residential and Commercial, peRES, COM) and Public Park
(PR); and '
WHEREAS, the rezoning will be consistent with the City's General Plan land use map,
proposed uses and surrounding uses; and
WHEREAS, upon due notice and after one public hearing the Planning Commission
recommended denial of the rezoning, deferring the decision to the City Council; and
WHEREAS, a map and legal description of the subject property is attached hereto as
Exhibit A, as a proposed amendment to the Master Zoning Map of the City of Cupertino.
NOW, THEREFORE, BE IT ORDAINED AS FOLLOWS:
Section 1. That the property described in attached Exhibit A is hereby rezoned to
Planned Residential and Commercial, peRES, COM), and Public Park (PR); and that Exhibit A
attached hereto is made part of the Master Zoning Map of the City of Cupertino.
Section 2. This ordinance shall take effect and be in force thirty (30) days after its
passage.
INTRODUCED at a regular meeting ofthe City Council of the City of Cupertino the ill
day of February, 2006 and ENACTED at a regular meeting of the City Council of the City of
Cupertino the 21 st day ofM~ch, 2006, by the following vote:
Vote
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
Lowenthal, Mahoney, Sandoval
Kwok, Wang
None
None
ATIEST:
APPROVED:
/s/ Kimberly Smith
/s/ Richard Lowenthal
/
THIS IS TO CERTIFY TriAT THE WITHIN .
INSTRUMENT IS A TRUE AND CORRECT ~W. .
OF nlE ORIGINAL ONF1LE IN THIS OFR yor, City of Cupertmo
ATIEST fY\o. y~ L 2.3- ~ 20 O~
CITY CLERK OF THE~.rERTINO
BY ~ ~( II.f
~ CITY CLERK
City Clerk
EXHIBIT I
Page.3 of
.;( 0 Paaes
_________ Y-4<
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_ 95.00' 0
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245 NET AC
321 G90SS AC
~
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REZONE
FROM: P(CG. O. ML. HOTEl). MIXED USE
PlANNED DEVELOPMENT
TO: P, RESIDENTIAL/COMMERCIAL
S8S"31'./-f./r 371.55'
~
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STEVENS CREEK BOULEVARD
Bkf
981 RIDDER PARK DRIVE
SUITE 100
SAN JOSE. CA 95131
4-08-467 -9100
4-08-4-67 -9199 (FAX)
odIl~n:r~ IP~
R-25.00'
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RECEI\1EDj
MAR 1 4 2005
BY:
~
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R=2S.00'
~ ~27T:J7J1 '5/'
L="7.82'
.sz.g"J1'# lI' 3
SCALE l' = 100'
Subject CALABAZAS PLACE
ZONING PLAT MAP - LOT 1
Job No. 20056051
Rv RO Date 03/08/06
EXH I B IT --L- SHEET
Page ~ of
d?O Pages
Chkd.JM
OF 6
!~II~"'.;: ....B'k.'.. :. f".
.' .,... .:'.....
. .' . n' ... .
. ".
March 8,2006
BKFNo.20056051-10
Page 1 of 2
BlGlliEn6 fSUR:~e~;.PLAIDjUS
EXHIBIT "A"
LEGAL DESCRIPTION
FOR ZONING p1JR}?OSES
LOTI
All that certain real property situate in the City of Cupertino, County of Santa Clara, State of
California, describe'd as fonows:
Being a portion of Parcel B, as shown on Lot Line Adjustment, dated May 1998, by Kier &
Wright, job #89189-23, described as follows:
BEGINNING at the most northerly corner of said Parcel B, said point also being the beginning
of a non tangent curve, concave to the south, having a radius of 595.00 feet, from which point a
radial line bears South 03020' 52" West;
Thence easterly along said curve and along the southerly line of Valko Parkway 110.00 feet in
width, as showu on Parcel Map, filed August 3, 1987 in Book 576 of maps at page 31 and 32,
Records of Santa Clara County, through a central angle of 28024' 31" 'and an arc length of 295.02
feet;
Thence South 58014'37" East 5.00 feet to the beginning of a curve to the right, having a radius
of 30:00 feet;
Thence southerly along sa,id curve through a central angle of 90000'00" and arc length of 47.12
feet to a point on the ep.sterly line of said Parcel B;
Thence South 31045'23" West 0.15 feet to the beginning of a curve, having a radius of 888.00
feet;
Thence southerly along said curve through a central angle of 18038'40" and an arc length of
288.96 feet to a point on the easterly line of said Parc,el B;
Thence leaving said westerly line of said point on the easterly line of said Parcel B the following
three (3) courses:
1) South 89031'44" West 371.56 feet;
2) North 00024'00" West 9320 feet;
3) North 88054'46" East 195.49 feet;
Thence North 01005' 14" West 304.23 feet to the point of BEGINNTNG.
EXHIBIT L-
Page ~ of
h{O Pages
Page 2 of 2
Lot 1 contains an area of 106,696 square feet (2.45 acres) more OT less.
K:\ENG05\056051\DWG\EXHIB ITS\Legal DescriptioDs\Lotl.doc
EXHIBIT -1-
Page ~ of
~D Pages
'-'8.' k" f
5' .........
March 8, 2006
BKF No. 20056051-10
Page 1 of 1
FJlGIH~ ,Sa QVE'{OlaS 1 ~
EXBIBIT "A"
LEGAL DESCRIPTION
FOR ZONJNG PURPOSES
LOT2
All that certain rea! property situate in the City of Cupertino, County of Santa Clara, State of
Califorrua, described as follows:
Being a portion of Parcel B, as shown on Lot Line Adjustment, dated May 1998, by }(jeT &
Wright, job #89189-23, des~ribed as follows:
BEGINNING at the most southwesterly corner of said Parcel B; said point also being the
southerly tenninus of the course "North 00024' OO''West 527.77 feet" of the southerly line of
Parcel B, as shown on said Parcel Map.
Thence along sajd southerly line of said Parcel B the following two (2) courses:
1) North 00024' OO"West 434.57 feet;
2) North 89031' 44" East 371.56 feet to a point on the easterly line of said, Parcel B. said point
also being the beginning of a non-tangent curve, concave to the southeast, having a radius of
888.0D feet, froID said point a radial line bears South 76053' 17" East;
Thence southerly along sill d curve through a central angle of 13 036' 53" and an arc length of
211.01 feet;
Thence South 00030' 10" East 200.19 feet to the beginning of a curve to the right having a radius
of 25.00 feet;
1
Thence southwesterly along said curve through a central angle of 90006' 10" and an arc length of
39.31 feet to a point on L~e southerly line of sl'lid Par~el B;
Thence South 89036' 00" West 322.34 feet to the Point of BEGINNING.
Lot 2 contains an area of 152,462 square feet (3.5 acres) more or less.
EXHIBIT -L-
p~e 7 of
o Pages
....
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981 RIDDER PARK DRNE
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4-08-467 -9100
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Subject CALABAZAS PLACE
ZONING PLAT MAP - LOT 2
Job No. 20056051
By RO Date 03/08/06 Chkd.JM
EXH I B IT -1- SHEET 2 OF 6
P5e -2- of
o Pages
,. Bkf
i~ ..,-.;!
=~'.... .
March 8, 2006
BKF No. 20056051-10
Page 1 of2
S"'iGIN E!:RS; StIRV'EYORSi P\..A1HITRS
EXHIBIT "A"
LEGAL DESCRIPTION
FOR ZONING PURPOSES
LOT 3
All that certain real property situate in the City of Cupertino, County of Santa Clara, State of
California, described as follows:
Being all of Parcel 2, and a portion of Parcel 3, as shown on Parcel Map, filed August 3, 1987 in
Book 576 of Maps at Pages 31 and 32, Records of Santa Clara County, more particularly
described as follows:
BEGINNING at a point on the easterly line of Finch Avenue being 76.00 feet in width, said
point also being the southerly terminus of tbe course "South 00030' 1 0" East 201.07 feet" of the
westerly Line of said Parcel 2, as shown on said Parcel Map.
Thence along said westerly line of said Parcel 2 the following foUI (4) courses:
1) North 00030'10' West 201.07 feet to the beginning of a curve to the right having a radius of
812.00 feet;
2) No.rtheasterly along said curve through a central angle of 32015'33", and an arc length of
457.18 feet;
3) North 31045'23" East 0.15 feet to the beginning of a curve to the right haVing a radius of
30.00 feet; .
4) Northeasterly along said CUI\1e through a central angle of 90000'00", and an arc length of
47.12 feet to a point on the southerly line of Valleo Parkway being 110.00 feet in width, as
shown on said Parcel Map;
Thence South 58014'37" East 362.70 feet to the beg:imllng of a curve to the left having a radius
of 705.00 feet; -
Thence easterly along said cmve through a central angle of 20039'53", and an arc length of
254.27 feet;
Thence leaving said southerly line of Valleo Parkvvay South 00028'16" East 366.49 feet to a
point on the northerly line of Stevens Creek Boulevard, varying in width, as shown on said
Parcel Map, said point also being the beginning of a non-tangent curve concave to the south,
baving a radius of2000.00 feet, from said point a radial line bears South 01014'38" East;
EXHIBIT I
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SCALE l' = 100'
Skf
981 RIDOm PARK DRIVE Sub j ed CAL).BAZAS PLACE
surrr: 100 ZON 1 NG PLAT MAP - LOT 3
SAN JOSE, CA. 95131 Job No, 20056051
4-08-467 -9100 R I /
4-08-467-9199 (FA)" By 0 Date 03 08 06 Chkd.JM
EXH I B IT --L- SHEET 3 OF 6
Page ~ of
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[j.........d-U r s.-.cl-' rPUJIIBI
'>>L1.B. If f
=- .1\..
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March 8, 2006
EKF No. 20056051-10
Page 1 of2
. EXHIBIT "A"
LEGAL DESCRIPTION
FOR ZONING PURPOSES
LOT 4
All that certain real property situate in the City of Cupertino, County of Santa Clara, State of
California, described as follows:
Being a portion of Parcel 3, as shown on Parcel Map, filed August 3, 1987 in Book 576 of Maps
at Pages 31 and 32, Records of Santa Clara County, more pm:ticularly described as follows:
BEGINNING at a point on the northerly line of Stevens Creek Boulevard varying in width, said
point also being the easterly terminus of the course "South 89031' 44" West 304.37 feet" of the
southerly line of said Parcel 3, as shovm on said Parcel Map.
Thence South 89031' 44" West 304.37 feet to the beginning of a curve to the left, having a radius
2000..00 feet;
Thence Westerly along said curve through a central angle of 00046'22", and an arc length of
26.97 feet
Thence Leaving said southerly line of said Parcel 3 North 00028' 16" West 366.49 feet to a point
on the southerly line of Valko Parkway 110.00 in width, as shown on said Parcel Map, said
point also being the beginning of a non-tangent curve, concave to the north, having a radius of
705.00 feet, from said point a radial line bears North 11005'30" East;
Thence easterly along said curve through a central angle of 11 033' 46", and an arc length of
142.28 feet;
Thence North 89031' 44" East 215.03 feet to the beginning of a curve to the right, having a radius
of 25.00 feet;
Thence southerly along said curve through a central angle of 90000'00" and an arc length of
39.27 reet to a point on the easterly line of said Parcel 3;
Thence South 00028' 16" East 277.00 feet to the beginning of a curve to the right, having a radius
of 50.00 feet;
EXHIBIT /
PaQ..e L1- of
d.O Pages
Page 2 of2
Thence along said northerly line of Stevens Creek Boulevard and the southerly line of said
Parcels 2 and 3 the following four (4) courses:
1) Westerly along said curve through a central angle of 04011'21", and an arc length of 146.29
feet to the beginning of a reverse curve having a radius of2000.00 feet;
2) Westerly along said curve through a central angle of 04057'49", and an arc length of 173.26
feet;
3) South 89031 '44" West 363.80 feet to the beginning of a curve to the right, having a radius of
25.00 feet;
4) Northwesterly along said curve, through a central angle of 89058'06", and an arc length of
39.26 feet to the point ofBEGINNlNG.
Lot 3 contains an area of 364,713 square feet (8.37 acres) more or less.
K:\ENGD5\056051\D WG\EXHIBITS\Legal Descriptions'LotJ .doc
EXHIBIT /
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981 RIDDER PARK DRNE Sub j ed CALABAZAS PLACE
SUITE 100 ZOO ING PLAT MAP - LOT 4-
SAN JOSE, CA 951.31 Job No. 20056051
MJ8-467-9100
4-08-467-9199 (FAX) By RO Dat e 03/08/06 Chkd. JM
EXHIBIT -1- SHEET 4 OF 6
Page .LL of
~a- Pages
Bkf
Page 2 of:1
Thence southwesterly along said curve through a central angle of 90000'00" and an arc length of
78.54 feet to the point of BEGINNJNG.
Lot 4 contains an area of 134,234 square feet (3.08 acres) more or less.
K:\EN GOS\056051 \DW G\EXBlB ITS\LegaJ DesGiptions\Lot4. doc
EXHIBIT -L-
Page / Lf of
d.O Pages
~Bkf
March 8, 2006-
BKF No. 20056051-10
:rage 1 of 2
ENl;IiIEtitSr SLJr.\1Ff<l~~
EXHIBIT "A"
LEGAL DESCRJPTION
FOR ZONlNG PURPOSES
LOTS
All that certain real property situate in the City of Cupertino, County of S 2Dta Clara, State of
California, described as. follows:
Being a portion of Parcel 3, as shown on Parcel Map, filed March 26, 1978 in Book 438 of Maps
at Pages 12 and 13, Records of Santa Clara County, more particularly described as follows:
BEG~G at a point on the northerly line of Valleo Parkway, being 110.00 feet in width,
said point being at the easterly terminus of the course "South 89031'44" West 215.03 feet" of the
southerly line of said Parcel 3, as shown on said Parcel Map. -
Thence along said southerly line of said Parcel 3, South 89031'44" West 215.03 feet to the
beginning of a curve "to the left having a radius 595.00 feet;
Thence westerly along said curve through a central angle of 32013'39", and an arc length of
334.67 feet;
Thence North 58014'3T'W'est 170.97 feet to a point on the westerly line of said Parcel 3, to the
beginning of a non-tangent curve, concave to the northwest, having a radius of 372.50 feet, from
said point a radial line bears North 29026'28" West;
Thence northeasterly, along said curve, through a central angle of 27037'18" and an arc length of
179.58 feet;
Thence North 32056' 11 "East 224.37 feet to a point on the westerly line said Parcel 3;
Thence leaving said southeasterly line of said on the. westerly line of said Parcel 3 the following
nine (9) courses:
1) South 5r25' 1 TEast 54.57 feet;
2) North 32033' 14"East 114.82 feet;
3) South 56052'23"East 50.87 feet;
4) South 19030' 18"East 44.75 feet;
5) South 74057'49"East 104.77 feet;
EXH I B IT ---L-
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981 RIDDER PARK DRIVE
SUITE 100
SAN JOSE. CA 95131
408-467 -9100
408-467-9199
(F'EXHIBIT /
Page / Cp of
,;{(j Pages
REZONE
FROM: P(MP). P!>>INED INDUSTRIAL ZONE
TO: P, RESIDENTIAL/COMMERCIAL
500'28767
14.00'
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Subject CALABAZAS PLACE
ZONING PLAT MAP - LOT 5
Job No. 20056051
By RO Date 03/08/06 Chkd.JM
SHEET 5 OF 6
Page 2 of 2
6) North 44029' 36"East 42.96 feet;
7) North 82058'21"East 49.67 feet;
8) South 0505T18"East 117.69 feet;
9) North 83032' 59"East 56.23 feet to a point on the easterly line of said Parcel 3, said point also
being a non tangent curve, concave to the east, having radius of 60.00 feet, from which point a
radial line bears North 86019'22"East;
Thence southerly along said curve, through a central angle of 02031' 59", and an arc length of
26.53 feet to a point on the easterly line of said Parcel 3;
Thence along said easterly line of said Parcel 3 the following two (2) courses:
1) South 06012'37" East 320.00 feet;
2) South 00028'16" East 14.00 feet; to the beginning of a curve to right, having a radius of 25.00
feet;
Thence southwesterly, along said curve, through a central angle of 90000'00" and an arc length
of 39.27 feet to the point of BEGINNING.
Lot 5 contains an area of 254,379 square feet (5.84 acres) more or less.
K\ENG05\056051\DWG\EXHIBITS\Legal DesGiptioDs\Lot5.doc EXH I B IT /
Page h of
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Sub j e d CALABAZAS PLACE
ZONING PLAT MAP - LOT 6
Job No. 20056051
Bv RO Date 03/08/06 Chkd. JM
EXHIBIT..i- SHEET 6 OF 6
p,e LL- of
D Pages
981 RIDom PARK ORNE
SUITE 100
SAN JOSE, CA 95131
408-467-9100
408-467-9199 (FAX)
,: S"k
lai- · ~ : " -" "
_.>f
March OS, 2006
BKF No. 20056051-10
Page 1 of 2
E.'IG1l!oas/5uR\IEY~/.:P~
EXHIBIT "A"
LEGAL DESCRlPTION
FOR ZONING PURPOSES
LOT 6
All that certain real property situate in the City of Cupertino, County of Santa Clara, State of
California, described as follows:
Being a portion of Parcel 3, as shown on Parcel Map, filed March 26, 1978 in Book 438 of Maps
at Pages 12 and 13, Records of Santa Clara County, more particularly described as follows:
BEGIr'~TING at a point at t..~e most northvlesterly corner of said Parcel 3, said point also being
on the southwesterly line of Junipero Serra Freeway (State Highway 280) as shown on said
Parcel Map.
Then.ce along said southwesterly line of Junipero Serra Freeway (State llighway 280) South
57002'38" East 298.28 feet to a point on the easterly line of said Lot 6, said point also being the
beginning of a non-tangent curve concave to the east, having a radius of 600.D0 feet, from said
point a radial line bears South 68039' 51" East;
Thence southerly along said curve, through a central angle of 2S000'47", and an arc length of
261.94 feet.
Thence leaving said easterly line, the following nine (9) courses:
1) South 83032' 59" West 56.23 feet;
2) North 05057'28" West 117.69 feet;
3) South 82058'21" West 49.67 feet;
4) South 44029'36" West 42.96 feet;
5) North 74057'49" West 104.77 feet;
6) North 19030' 18" West'44.75 feet;
EX" I B IT ----L-
p~e /9 of
'() Pages
7) North 56052'23" West 50.87 feet;
8) South 32033'14" West 114.82 feet;
9) North 57025-'.17" West 54.57 feet to a. point on the westerly line of said Parcel 3;
Thence North 32056' 11" East 375.75 feet to the point of BEGINNING.
Lot 6 contains an area of 92,795 square feet (2.13 acres) More or Jess.
K:\ENG05\05 6051 \DWG\EXHIBITS\Legal Desc:riptioDs\Lot6.doc
EXHIBIT -L-
Page ~ of
~D Pages
Page 2 of 2
REFERENDUM AGAINST AN ORDINANCE PASSED BY Tim r:J'l'V'dn1fN~rr: D
ORDINANCE #19751"'" C\.:" -crvc
NOTICE TO TIrE PUBLIC: APR 1 9 2006
THIS PETITION MAY BE CIRCULATED BY A PAID SIGNATURE GATIffiRER OR A VOLUNTEER.
yOU HA VB THE RlGHT TO ASK.. CITY OF CUPERTINO
THE USE OF YOUR SIGNATURE FOR ANY PURPOSE OTHER THAN QUALIFICA nON OF TIllS
lVffiASURE FOR THE BALLOT IS A MISDEMEANOR. COMPLAINTS ABOUT TIlE MlSUSE OF YOUR
SIGNATURE MAY BE MADE TO THE SECRETARY OF STATE'S OFFICE.
To the Honorable City Council of the City of Cupertino
We, the undersigned. registered, qualified voters of California, residents. of the City of Cupertino hereby
protest the adoption of Ordinance # 1975 and petition the City Council to either rescind its approval of said
ordinance or submit the same to the voters of Cupertino for their adoption or rejection at the next succeeding
regularly scheduled municipal election. The full text of said Ordinance #1975 is attached to this petition.
No.
Date
PRINT name as registered on top line,
Signature as registered on bottom line
Print Residence Address
City on bottom line
For clerk's
use only
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EXHIBIT .1-
Page ~ of
L./ Pages
REFERENDUM AGAINST AN ORDINANCE PASSED BY THE CITY COUNCIL
ORDINANCE #1975
I' :
No. Date PRlNT na
Signature a
("
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ered on top line, Print Residence Address I For clerk's
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me as regist
s" !"~_g:!s!~red
DECLARA nON OF ClRCULA TOR
I, . . a registered and qualified voter in the City of Cupertino, circulated
this petition section. All of the signatures on this section of the petition were made in my presence and, to the
best of my knowledge and belief, each signa'f;ijre is the genuine ~gnature of the person whose name it purports
to be. My residential address is . '. - _ . Cupertino, California. All
signatures on this petition section were obtai~tbetween 1//0 , 2006 and Lj. / 17
2006. I certify under penalty of perjury under the Jaws of the State of California that the foregoing is true and
correct. Executed at Cupertino, California on r /7 12906.
'\.- -~ ,"-- .-
(fun Slgnature of circulator)
EXHIBIT ..R-
Page ~ of
Lf Pages
ORDINANCE NO. 1975
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
RE-ZONING OF A 5.19 ACRE PARCEL FROM
PLANNED DEVELOPMENT (REGIONAL SHOPPING) TO
PLANNED DEVELOPMENT (REGIONAL SHOPPING/RESIDENTIAL)
AT 10123 N. WOLFE ROAD (VALLCO)
WHEREAS, an application was received by the City (Application no. Z-2005-05) for the
re-zoning of a property to Planned Development (Regional Shopping/Residential); and
WHEREAS, the re-zoning is consistent with the City's General Plan land use map,
proposed uses and surrounding uses; and
WHEREAS, upon due notice and after one public hearing the Planning Commission
reconunended to the City Council that the rezoning be granted; and
WHEREAS, a map of the subject property is attached hereto as Exhibit A as a proposed
amendment to the Zoning Map of the City of Cupertino.
NOW, THEREFORE, BE IT ORDAINED AS FOLLOWS:
Section 1. That the property described in attached Exhibit A is hereby re-zoned to
Planned Development (Regional Shopping/Residential); and that Exhibit A attached hereto is
made part of the Zoning Map of the City of Cupertino.
Section 2. This ordinance shall take effect and be in force thirty (30) days after its
passage.
INTRODUCED at a regular meeting of the City Co:uncil of the City of Cupertino the 31 st
day of January, 2006 and ENACTED at a regular meeting of the City Council of the City of
Cupertino the 22nd day of March, 2006, by the following vote:
Vote
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
Lowenthal, Mahoney, Sandoval
Kwok, Wang
None
None
A TrEST:
APPROVED:
Is/ Kimberly Smith
/s/ Richard Lowenthal
City Clerk
Mayor, City of Cupertino
THIS IS T()-CERT1FY THAT THE WITHIN
INSTRUMENT IS:A.fRUEAND~CORRECT COpy
OF THE CDRfGINAL ON FILE IN THIS OFFICE
ATTEST !f\Jj{"~ 13 . 20.&
CITY CLERK OF THE C~CUPERTINO
BY ~~l $C: .. 1HJ-.
\\)QJ I ,t- CllY r.1 FRK
v I w'l EXHIBIT 2-
Page ~ of
4 Pages
Ordinance No. 1975
2
EXHIBIT A
RE-ZONE 5.19 ACRES
FROM: PLANNED DEVELOPMENT (REGION.Al SHOPPING)
TO: PLANNED DEVELOPMENT (REGIONAL SHOPPING/RESIDENTIAL)
-
, ~
NORWIOfAmM g
~Ur41dj~ r;o) I \ ~'tj1J) ~ loa ~~
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WOlJ'[ ROAD
~rn. I. l.. ffi
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CONDOMINIUMS AT VALLCO
OJPEmNO, CAURJRNIA
Zoning Plat Map
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t'<"l~___.' ____ ....Cllll'\r.('I(
Pen:owll% + Ruth
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EXHIBIT -.:L
Page ~ of
'I Pages
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Stow v. Smith
Santa Clara County Superior Court No. 106CV063723
2
PROOF OF SERVICE
(Code Civ. Proc. SS 1011, 1013,2015.5)
(Cal. Rules of Court, rule 2008(e))
3
4
I, the undersigned, declare under penalty of perjury that:
I am a citizen of the United States employed in the County of Marin. I am over the
5 age of 18 and not a party to the within cause of action. My business address is 591 Redwood
Highway, Bldg. 4000, Mill Valley, California 94941. I am readily familiar with my
6 employer's practices for collection and processing of correspondence for mailing with the
United States Postal Service and for pickup by Federal Express.
7
On June 5, 2006 I served a true copy of the foregoing FIRST AMENDED PETITION
8 FOR PEREMPTORY WRIT OF MANDATE AND COMPLAINT FOR PERMANENT
INJUNCTION AND DECLARA TORY JUDGMENT on the following parties in said
9 action, by serving:
11
12
PATTY CHI
10273 NORWICH
CUPERTINO, CA 95014
Real Party in Interest
HELAM LUK
10419 DENISON
CUPERTINO, CA 95014
Real Party in Interest
13
CHARLES T. KILIAN
Cupertino City Attorney
Law Offices of Charles T. Kilian
20410 Town Center Lane, #210
Cupertino, CA 95014
Attorneys for Defendants City Council of
Cupertino and Kimberly Smith, City Clerk of
the City of Cupertino
BY OVERNIGHT DELIVERY:
X FEDERAL EXPRESS: By following ordinary business practices and placing for
pickup by FEDERAL EXPRESS at 591 Redwood Highway, #4000, Mill Valley, CA
on June 5, 2006 copies of the above documents in an envelope or package designated
by FEDERAL EXPRESS with delivery fees paid or provided for.
U.S. MAIL, EXPRESS MAIL: By placing the above documents in the United States
Mail for Express Mail delivery at Mill Valley, California, in a sealed envelope
addressed as above, with Express Mail postage thereon fully prepaid.
23
24
Executed in Mill Valley, California, on June 5, 2006.
I declare under penalty of perjury, ~he forego;g/~ true and correct.
U?eftv {~
Ellen Olson
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