07. Hotel SupplementsColin Jung
From: Samuel C. Wood [wood@responsiv~~.net]
Sent: Tuesday, January 20, 2009 2:44 PM
To: City of Cupertino Planning Dept.; Colin Jung; Dorie Barras
Cc: Kris Wang; Gilbert Wong; Mark Santoro; Samuel C. Wood
Subject: legal brief regarding application to bE~ reviewed at council meeting
Ltr_SWoodlHtlDevO
12009.doc
Dear Mr. Hynes and Mr. Jung,
My name is Sam Wood and I live at 10181 Parlett Place in Cupertino,
across De Anza from a proposed hotel at 10165 D~~ Anza. The proposal is
on the agenda for the city council meeting toni~3ht.
I feel the proposal complies with neither the soirit nor the letter of
the city's General Plan so I sought an attorney's opinion. The attorney
has a great deal of experience in municipal law and zoning, including
decades of experience as a city attorney (Redwood City). He confirmed
my assessment. He also concluded that the proposal does not meet state
requirements in a material way. Yesterday, I raised this issue with
members of the city council by e-mail, and two of the members asked me
to follow up with planning staff and the city attorney. I am attaching
the brief from the attorney to this e-mail as a Word document.
By the way, there is a reference in item III in the letter that
describes staff incorrectly calculated and advised planning
commissioners during the meeting that the building set back was 219
feet, and that was the number that should be used in calculating the set
back ratio. You can see the discussion of the video archive of the
January 13 meeting of the planning commission on the Cupertino web site
in a one-minute segment from 1:15:00 to 1:16:00. The link is
http://www.cupertino.org/index.aspx?page=482 .
I obviously won't have time to go through these details during my
three-minute statement to the council tonight. Also, I apologize for
the last-minute nature of this e-mail. It's only been a week since the
new structure was revealed to the public and approved by the
commission. The attorney worked hard in the subsequent days to make
sure he was correct in what he wrote, and he e-mailed the final version
of the brief only minutes before I started writing this e-mail.
Sincerely,
Sam Wood
10181 Parlett Place
408 253 8083
1
LAW OFFICES OF
DAVID E. SC:HRICKER
A PROFESSIONAL CORPORATION
20370 Town Center Lane, Suite 100
CUPERTINO, CALIFORNIA 95014
TELEPHONE (408) 517-9923
FAX (408) 252-5906
E-MAIL: dschricker@schrickcrlaw.com
schrickerlaw@aol.com
www.schrickerlaw.com
Via a-mail & mail
January 20, 2009
Samuel C. Wood
10181 Parlett Place
Cupertino, CA 95014
Re: Proposed 138 Room Five-Story Hotel ~;It 10165 N. De Anza Blvd., Cupertino
CA (Agenda Item No. 7, Council meeting 01/20/09)
Dear Mr. Wood:
This letter responds to your request 'For legal review of pending
applications submitted by Rajeev Chopra (;ihashi Corporation) to the City of
Cupertino, California for a use permit, architectural and site approval and tree
removal entitlements (collectively, "Applications") for development of a 138 room
five-story hotel at 10165 N. De Anza Boulevard, Cupertino ("Project"). Your
property is located on the easterly side of De Anza Boulevard across the street
from the Project.
The City's Planning Commission recl~mmended approval of the Project on
January 13, 2009 and consideration of the matter is on the City Council's
Agenda for January 20, 2009. For the reasons discussed below, the
environmental review conducted by the City does not comply with the
requirements of the California Environment~~l Quality Act ("CEQA;" Pub. Res. C.
§21000, et seq.) and case law interpreting C;EQA. Moreover, the Project does
not conform to the requirements of the City's General Plan and Zoning
Ordinance. Therefore, the appropriate action by the City Council would be to
deny the Applications. ,
I. Project Setting; Procedural Background
The proposed Project is located on the northwest corner lot at the
intersection of N. De Anza Blvd. and Stevens Creek Blvd. The Project lot size is
approximately 34,800 ft.z (0.8 acre).' The e~:isting gasoline station/carwash on
the lot occupies 1855 ft.Z. The proposed Project's building area is 84,410 ft.Z. The
five-story building would rise to a height of 45 feet, the maximum allowable under
the City's Zoning Ordinance (" Zon. Ord."). T'he Project building setbacks are: De
Background information, such as dimensions/sizes, is derived from the Staff Report to the City
Council.
Samuel C. Wood
January 20, 2009
Page 2
Anza Boulevard - 56 feet( average); Alves Dr. setback- >40 feet; northerly side-
8'11 "; rear (westerly) side-7.5 feet to 10 feet.
The proposed Project would replacE; a single story gasoline station/car
wash. The westerly abutting lot is occupied by a single story office building. The
northerly abutting lot, which is considerable larger than the project site, is
occupied by a multi-story office building, well set back from De Anza Boulevard
by approximately 200 feet. The De Anza frontage of that lot is heavily screened
by existing trees, behind which is located ~i surface parking lot. By contrast, the
proposed Project's De Anza Boulevard setback is merely 56 feet, on average.
On site landscaping is minimal.
The project will completely obliteratE; the view of the surrounding foothills
from your family room, kitchen and bedroom. Indeed, four of the five stories of
the proposed hotel would serve as a monolithic barricade facing your property. It
likely will have the same affect on property in the vicinity of your house.
Proposed landscape screening will have no or little effect in reducing the visual
impact. The sheer massiveness of the proposed structure assures that result.
Moreover, the hotel's windows set in its De Anza's frontage also assure your
family's loss of privacy.
The Planning Commission approved a mitigated negative declaration for
the project. Although not entirely clear, mitigation appears to consist of the
conditions attached to the use permit, architectural and site approval and the
tree removal permit. Aside from the minim~~l landscaping proposed by the
applicant, no mitigation has been provided to ameliorate the visual impact of the
project.
II. Environmental Review of the Project Does Not Comply with the
California Environmental Quality Act (Pub. Res. C. §21000 et seq.; "CEQA").
The state CEQA guidelines require that for each project undertaken
subject to CEQA, such as the Project, an initial study be conducted to provide
the lead agency (here, the City) with information to use as the basis for deciding
whether to prepare an environmental impact report ("EIR") or negative
declaration (14 CCR §15063). Although City staff purported to complete an initial
study using the California checklist form for evaluating the environmental aspects
of the Project, review of the checklist reveals that essential elements were
omitted or ignored.
Specifically, under "Aesthetics," the determination was made that the
Project would have no substantial adverse effect on a scenic vista or
substantially degrade the existing visual ch~~racter or quality of surrounding
properties. No analysis was made to support that conclusion (cf., the
environmental analyses made for hazards ~~nd hazardous materials,
transportation, parking and biological resources). Therefore, the draft of negative
declaration upon which the Planning Comn'iission relied simply ignored pertinent
facts relating to the visual aspects of the Project vis-a-vis nearby residential
property.2
z The Planning Commission failed to acknowledge the inadequacy of proposed landscaping to
mitigate the impact of the height and massiveness o1~ the proposed structure.
Samuel C. Wood
January 20, 2009
Page 3
Similarly, the Initial Study concluded that the proposed Project would not
conflict with any applicable land-use plans,, policy or regulations. That flies in the
face of specific provisions of the General Flan and Zon. Ord., discussed below.
Again, without an analysis of the nonconformance with local regulations, the
Planning Commission erroneously proceeded to recommend approval of the
Project.
Finally, the conclusion in the Initial ~>tudy that the Project would have no
cumulative effect precluded analysis of that aspect of the Project. Thus, there
was no environmental review of the incremental growth inducing or other
adverse effects of the Project upon past, present and future developments,
including, e.g., the nearby Cyprus Hotel. Such an analysis is essential, given the
setting and land-use density of the Project (Pub. Res. C. §21100(b)(5)).
Testimony presented to the Plannin~~ Commission by you and others
described the visual impacts of the Project„ That testimony was essentially
ignored or overridden.
In that regard, personal observations of residents in the vicinity of a
proposed project must be given due regard by the governmental decision-
makers, as such opinions may give rise to ~~ fair argument under CEQA that a
proposed project requires preparation of are environmental impact report ("EIR")
to address its visual/aesthetic impacts (Poc:ket Protectors v. City of Sacramento
(2004), 124 Cal. App. 4th 903, 937; 21 Cal. Rptr. 3~ 791). Building heights and
compatibility with surrounding structures and land uses are included among the
aesthetic effects that must be considered (Citizens for Responsible and Open
Government v. City of Grand Terrace, 160 Cal. App. 4 1323, 1337-1338; 73
Cal. Rptr. 3d 202).
Here, the testimony before the Planning Commission clearly raises a fair
argument that an EIR must be prepared for the Project or, at least, an expanded
mitigated declaration that provides adequale analysis of the aesthetic effects of
the Project. Such analysis should include, ~imong other matters, consideration of
alternatives to the Project (e.g., redesigning it, no project, alternative uses of the
Project site, etc.).
III. The Planning Commission Based Its Decision on an Erroneous
Calculation of the De Anza Boulevard Fr~~ntage Setback.
During the discussion by the Planning Commission of the impact of the
Project on properties located on Parlett Pla~~e, staff calculated and advised the
Commission that the Project's De Anza Boulevard setback would be 219 feet.
That huge inaccuracy thus served to mislead the Commission into thinking that
the visual impact of the Project on Parlett Place properties would be significantly
less (if not nil) than that caused by the actu:sl 56-foot (average) setback. That,
alone, requires revisiting the environmental effect of the Project to cover Project
alternatives, revisions, land use policies anti regulations and over-all aesthetics.
Samuel C. Wood
January 20, 2009
Page 4
IV. The Proposed Project Violater the "Urban Building Forms" Policy
of the General Plan (Policy 2-13)
a. The Project's Building Height anti Setbacks Do Not Assure the Desired
Relationship With Buildings in the Vicinity (Gen. Plan Policy 2-13, Strategy 1).
The design and building location th~~ Project are totally out of scale with
the single story office building on the westerly-abutting property and with the
substantial setbacks of the office building located on the northerly-abutting
parcel. Those features of the Project violal:e General Plan Policy 2-13, Strategy
1.
b. The Project Violates the Requirement for Cohesiveness of New and
Old Development (Gen. Plan Policy 2-13, Strategy 2).
Comparison of the scale of the proposed Project and its relationship with
existing development on the above-mentioned abutting parcels clearly
demonstrates its visually jarring effect. These features of the project violate
General Plan Policy 2-13, Strategy 3.
c. The Project Violates the Requirement to Avoid Abrupt Changes in
Building Scale (Gen. Plan Policy 2-13, Strategy 3).
Likewise, comparison of the scale o~f the proposed Project and its
relationship with existing development on tl~e above-mentioned abutting parcels
amply demonstrates the fact that the proposed Project constitutes a substantial
and significant abrupt change in building scale, detrimental to planning principles
for buffering and integrating new developments with existing structures. Those
features of the project violate General Plan Policy 2-13, Strategy 4.
V. The Use Permit and Architectural and Site Approvals
Recommended by the Planning Commission Are Not Supported by
Evidence in the Record and Do Not Comply with the Requirements of the
City's Zoning Ordinance.
Under the City's zoning ordinance the City must find that the Project will
not be detrimental or injurious to property or improvements in the vicinity of the
Project and will not be detrimental to public health, safety, general welfare or
convenience (Zon. Ord. section§19.12 4.070.A1). Likewise, the City must find
that the proposed use will be located and conducted in a manner in accordance
with the Comprehensive General Plan and the purposes of the Zoning
Ordinance (Zon. Ord. §19.12 4.07.A2). Herc:, the evidence with respect to the
design, site coverage and massiveness of the Project negates those findings.
VI. Conclusion.
The decision of the Planning Commi;>sion is not supported by the
evidence in the record. Environmental revie~~v of the Project does not comply with
CEQA. The City Council should deny the AKrplications. For the Project to
proceed, the City should require preparations of an EIR or an expanded negative
declaration that addresses the environmental deficiencies discussed above.
Samuel C. Wood
January 20, 2009
Page 5
Thank you for the opportunity to review the legal aspects of this important
decision before your local government. ME:anwhile, if you have any questions
regarding this matter, please do not hesitate to contact me.
Very truly yours,
Davis E. Schricker, Attorney
rV ~ ~ I2U I ~(~
-~.~,,,-, ~ 7
Colin Juna
From: Linda Lagergren
Sent: Tuesday, January 20, 2009 1:31 PIVI
To: Traci Caton; Colin Jung; Gary Cha~~
Subject: FW: [Fwd: Re: request for brief meeting]
untitled-[2]
Hi Traci, Colin and Gary,
I'm not sure what staff person is doing the presentation on the Hotel, but Dolly wanted me
to forward this email on to that person. She doesn't have time to call or email you, so
she wanted me to forward it on. Her questions ~~re below. She also left me a voicemail
message asking me to forward this email on witri her questions.
Thanks,
--Linda
-----Original Message-----
From: Dolly Sandoval [mailto:dolly@dollysandoval.com]
Sent: Tuesday, January 20, 2009 12:28 PM
To: Linda Lagergren
Subject: [Fwd: Re: request for brief meeting]
Hi Linda - I am at school right now. Can you forward this info to whoever is doing the
staff presentation this evening. I'd like to see if they can't address some of these
points.
Thanks,
Dolly
---------------------------- Original Message ----------------------------
Subject: Re: request for brief meeting
From: "Samuel C. Wood" <wood@responsive.net>
Date: Mon, January 19, 2009 8:32 pm
To: dolly@dollysandoval.com
Cc: "Samuel C. Wood" <wood@responsive.net>
Thank you Council Member,
I can e-mail additional details to staff. I ju:~t need to know who to e-mail. I really
appreciate your reply.
Best wishes,
Sam Wood
Dolly Sandoval wrote:
>Thanks for contacting me, Sam, regarding the pz-oposed hotel on DAB.
> You raise some points in your email that I hadn't thought of or am
>unsure of the staff response. I'm going to forward your email to the
>staff to see if they can address any of these issues; it might save
>sometime tomorrow evening. I, unfortunately, am not going to have a
>chance to meet with you before the meeting. I just got in from an
>extended weekend and have to attend to work tomorrow. As you probably
>know from our agenda, our council meeting starts much earlier than
>usual, and that eliminated about two hours of what could have been meeting time.
>Thanks for your information; I will take it into account tomorrow evening.
1
>Sincerely,
>Dolly Sandoval
>Member, Cupertino City Council
» Dear Council Member Sandoval,
»My name is Sam Wood. I am sending this e-mail to request a brief
»meeting between now and the council meeting this coming Tuesday night.
»Last Tuesday, the City Planning Commission a~>proved a proposal to
»build a 5-story luxury hotel at the intersection of Alves and De Anza Blvd.
»My home backs up to a wall on the other side of De Anza.
»One of my neighbors, Maty Soha, was on the committee that wrote the
»Cupertino City Plan (November 2005). After reviewing the two pages of
»policies regarding urban buildings in Cupertino and the details of the
»hotel proposal, we are pretty certain the hotel violates several
»policies described in the city plan, both in the letter and the spirit
»of the plan. The two biggest violations concern the hotel set back
»and the privacy of residents in adjacent residential areas.
»In a nutshell, the hotel complies with set back policies for buildings
»adjacent to commercial areas, but there are special requirements for
»buildings adjacent to residential areas. The hotel does not comply
»with those special requirements. I raised this issue with the Planning
»Commission on Tuesday night. The council chairman then asked a member
»of the planning staff what the set back was and if it was in
» compliance. The staff person said the set back was 219 feet, which
»was in compliance. It was nighttime, we were all tired, and the staff
»person gave the wrong number. The hotel proposal clearly shows the
»set back to be about 60 feet. A set back of 219 feet is in
»compliance; a set back of 60 feet is out of compliance for commercial
» areas adjacent to residential areas. The commission made the wrong
»conclusion based on incorrect data.
»I can't overemphasize how critical it is for the neighborhood that
»nearby developers comply with city policy. This lack of compliance
»will affect the character and livability of a residential neighborhood
»built more than 30 years ago. I support commercial development in
»Cupertino and I support the hotel, but the fi•~e-story portion of the
»hotel should be at least 100 feet further awa•~ from the residential
»area than as proposed, or its height should b~~ reduced by 20 to 25
» feet. With its current height and set back, :~t would be fine along
»Stevens Creek, but not across from peoples' homes.
»In fact, when I looked at a map of Cupertino, I cannot find any
»structures that high that face homes any where: near that close. If
»I'm right, the hotel proposal represents an irlportant new policy
»precedent in how urban buildings are placed next to residences, and
»such a decision deserves careful and informed consideration.
»I also hired an attorney to look over the proF~osal. He is still going
»over some details this morning, but at first ]_ook, he believes the
»proposal violates the California Environmenta]. Protection Act. I
»really want to have a brief meeting with you t:o provide some more
»details and hear your reactions. I believe th~it after you hear what I
»have found out, you will agree with me that it: would be premature to
»approve the hotel proposal on Tuesday. If it is OK with you, a couple
»of my neighbors may want to join the meeting as well. I apologize for
»not sending this sooner. The final plan for the hotel was only
»revealed to the public last Tuesday.
»I am sending similar e-mails to your fellow city council members. I
2
»will monitoring my e-mail today, but also feel free to call me on my
» cell at 650 796 1123.
»Sincerely,
»Sam Wood
»10181 Parlett Place
»Cupertino
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Linda La er ren
From: peggy nissen [jullay@earthlink.net]
Sent: Tuesday, January 20, 2009 1:51 PM
To: Orrin Mahoney; Kns Wang; Mark Santoro; Gilbert Wong; Dolly Sandoval
Cc: wood@responsive.net
Subject: Input on 1/20/09 Agenda Item #7, proposed hotel at 10165 N DeAnza Blvd
Dear Cupertino City Council,
Application Nos. U-2008-02, ASA-2008-07, TR-2008-09 (EA-2008-08)for a 5-story hotel o to 65
N. DeAnza Blvd are on the agenda for this evCuieg,tinoldese~veslbettertlmgch better.y
please deny this application, as proposed. p
The building is too large for the locatildin 5 s].trwilllloom claustrophobicallyaoversourr
too small for such a big, flat-sided bu g
sidewalks and streets. The proposed setwith the.Lcharacterlof the areaack of the adjacent
Bluecoat building, clearly inconsistent
ro osed, the building is a big, brooding, unattractive
The architecture is uninspired. Asp p ress Hotel and, even more regrettably, the
box. It is, regrettably, much like the ugly Cyp
Montebello horror at the corner of DeAnza and Stevens Creek.
I am also concerned that the parking will prove
Cupertino, for example the Peets/Panera lot that
adjacent businesses. Parking space requirements
inadequate. This is a common problem in
forces customer overflow into the lots of
need to be more stringent.
Development is inevitable. It's our responsibi=City to ensure that it is consistent witdo not
character of Cupertino and does nos tooamuchly ~tooatallhotoo biglltooncheaptlookingSetoo
approve this particular plan. It
inconsistent with the homes, office building, c'~urch and restaurants near it.
Thank you for your consideration.
Peggy Nissen
10194 Miner Place
Cupertino, CA 95014
-j ullay(alearthlink .net
(408) 255-1607
1