Response to S. Flashman re Ballot Question
396 HAYES STREET, SAN FRANCISCO, CA 94102
T: (415) 552-7272 F: (415) 552-5816
www.smwlaw.com
AMY J. BRICKER
Attorney
bricker@smwlaw.com
April 5, 2016
Via E-Mail
Stuart M. Flashman
5626 Ocean View Drive
Oakland, CA 94618-1533
E-Mail: stu@stuflash.com
Re: Ballot question for CCSG Initiative
Dear Mr. Flashman:
As you may know, this firm serves as outside counsel to the City of
Cupertino (“City”). At the request of the City Attorney’s Office on behalf of the City,
this letter responds to the assertions in your letter dated April 5, 2016, made on behalf of
your clients the Cupertino Residents for Sensible Zoning Action Committee (the
proponents of the Cupertino Citizens’ Sensible Growth Initiative), regarding the ballot
question for the Initiative. We request that you provide a copy of this letter directly to
your client.
Your letter asserts that the 9212 Report for the Initiative incorrectly asserts
that City “Neighborhoods” are not “Special Areas” pursuant to the General Plan. You
further assert that, because “Neighborhoods” are allegedly “Special Areas,” the Initiative
does not increase the height limits for Neighborhoods from 30 to 45 feet, as asserted in
the 9212 Report. You claim your position is supported by Figure LU-1, which lists
“Neighborhoods” under the heading “Special Areas.” This is incorrect and ignores the
clear text of the General Plan.
The legend for LU-1 begins with “Special Areas,” which are clearly
delineated by solid color boxes. These boxes correlate to the larger boxes on the left-
hand side of Figure LU-1, which each end with the term “Special Area.” The legend then
goes on to identify other areas, such as “Neighborhoods” (designated in white on the
diagram) and “Hillside Transition” (designated by grey striping in the diagram). Nothing
in Figure LU-1, including the legend, designates “Neighborhoods” as “Special Areas.”
Stuart M. Flashman
April 5, 2016
Page 2
Furthermore, even if the legend could be interpreted as placing a
“Neighborhood” in the same column as a “Special Area,” when viewing Figure LU-1 in
context with the remainder of the General Plan, there is no question that a
“Neighborhood” is not a “Special Area.” Indeed, there is an entire chapter of the General
Plan that explains the differences between the Special Areas and the Neighborhoods. The
General Plan, Chapter 2 divides the City into Special Areas and Neighborhoods. The
General Plan expressly states that it:
… organizes the city into 21 distinct Planning Areas, divided into
two categories:
1. Special Areas that are expected to transition over the life of the
General Plan and
2. Neighborhoods where future changes are expected to be
minimal[.]
(Emphasis added, General Plan at PA-3.)
Chapter 2 further discusses the “Special Areas” as separate and distinct from the
“Neighborhoods”. For your reference, the Special Area discussion starts at page PA – 4,
and runs through PA-17. The Neighborhoods discussion starts at PA-18 and runs through
PA-42. Furthermore, Figure PA-1 clearly delineates the City’s “Special Areas.”
(General Plan at PA-5.) These “Special Areas” are the same as the “Special Areas”
identified by solid colors in Figure LU-1. Figure PA-2 then identifies the
“Neighborhoods.” (General Plan at PA-19.)
There is simply no question that a “Special Area” designation under the General
Plan is entirely separate from a “Neighborhood” designation. See Las Virgenes
Homeowners Federation, Inc. v. County of Los Angeles (1986) 177 Cal.App.3d 300
(“The mere examination of . . . policy maps is insufficient to determine consistency.”)
Therefore, even if Figure LU-1 could be read as labeling “Neighborhoods” in the same
category as “Special Areas,” the more detailed language included within Chapter 2 of the
General Plan dictates that “Neighborhoods” are not “Special Areas.” Id. Numerous
other cases are in accord. See, e.g., No Oil, Inc. v. City of Los Angeles (1987) 196
Cal.App.3d 223, 244, 247-49 (general plan’s more general prohibition on “industrial”
uses had to be read in the context of the plan’s express allowance of extractive activities
within the open-space land-use designation); Friends of Lagoon Valley v. City of
Vacaville (2007) 154 Cal.App.4th 807, 823 (holding that city officials had “discretion to
Stuart M. Flashman
April 5, 2016
Page 3
diverge from the details of the [Land Use] Map, so long as the variation serve[d] the
plan’s policies and objectives as well or better”).
In sum, the plain text of the General Plan diagrams, including Figure LU-1,
treat Neighborhoods as distinct from Special Areas. Furthermore, when the General Plan
is read as a whole, there is no reasonable interpretation that a “Neighborhood” is a
“Special Area.” Thus, because the Initiative provides that “[o]utside of the Special Areas
shown in Figure LU-1, building heights may not exceed 45 feet,” the Initiative would
increase maximum building heights in Neighborhoods from 30 feet to 45 feet.
Very truly yours,
SHUTE, MIHALY & WEINBERGER LLP
Amy J. Bricker
772852.2