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CC 04-04-06 APPROVED MINUTES CUPERTINO CITY COUNCIL Regular Meeting Tuesday, April 4, 2006 CUPERJINO ROLL CALL At 5:30 p.m. Mayor Richard Lowenthal called the meeting to order in the Council Chambers, 10350 Torre Avenue, Cupertino, California. Present: Mayor Richard Lowenthal, Vice-Mayor Kris Wang, Council members Patrick Kwok, Orrin Mahoney and Dolly Sandoval. STUDY SESSION I. Conduct a study session on industrial business in Cupertino (continuing discussion from March 7). Community Development Director Steve Piasecki presented an analysis of properties that are on the edge of the office, commercial, and industrial land use designations and abutted residential uses. The identified edge properties included: North Vallco, South Vallco, North De Anza, and Bubb Road. Staff recommended that the residential overlay be retained on these properties noting that the eventual conversion of these properties to residential use would draw clearer boundaries between revenue generating and non-revenue generating uses. Removal of these industrial/office buildings would constitute 13.43% of the total industrial/office square footage in the City. Concerning the housing element, Mr. Piasecki stated that the housing element of the General Plan was not dependent on the residential overlay since there was sufficient inventory of adequate sites to accommodate the units that are in the General Plan. Planning Commission Chairman Marty Miller noted that part of the Commission's 2006 work program was the study of obsolete research and development properties in the City to determine appropriate long-term use. Specifically, the Commission was recommending that the Council authorize the preparation of a master plan for the north Vallco area. Commissioner Miller believed it was important to have a systematic approach to these properties and to the connectivity between them. It was also important to involve the community in these discussions. Council discussed the following issues: the impact on the financial value of the property; the protection of campus oriented businesses; the idea of contiguous campuses; the possibility of a moratorium while this issue was being reviewed (about six months); the schedule for Planning Commission review, joint meetings with the Planning Commission and study sessions; direction to staff to discuss with Apple Computer the issue of a residential overlay; impact on infrastructure; impact on April 4, 2006 Cupertino City Council Page 2 community; impact on quality of life; suggestion that Council focus on one particular section while the Planning Commission focused on North Vallco; plan for reviewing all residential overlays in the City - not just these four identified properties; and what the impact would be if all residential overlays in the City were removed. Council agreed that the Planning Commission would prepare a Master Plan for the North Vallco area aiming for completion by the beginning of July. In the meantime, the Commission would provide Council with periodic updates, and study sessions would be ongoing with the possibility of a joint meeting of the City Council and Planning Commission. In addition, Council asked the Planning Commission to pay particular attention to the economic and quality of life impacts of this issue and to include the Chamber of Commerce, community and property owners in their discussions. Jennifer Griffin urged that the Council not allow the conversion of industrial/tech lands into housing. She said that she believed industry and technology were an important part of the community and important to the growth of the community. She noted that once these lands were converted to housing they could never be changed back to industrial/tech land. She supported Council removing the residential overlay on the North and South Vallco land. Kevin Wu, Pacific Resources, commented on the current state of the commercial market. He noted that he had acquired property in the city, which was very difficult to lease in the current market conditions. Mr. Wu stated that there was a disparity between classes A, B and C properties. Class A were the spaces sought after by tenants, such as Apple, but Class B and C spaces tended to be vacant for a long time. In order for these functionally obsolete sites to be useful, the buildings needed to be demolished to pursue other options for the best use of the property. David Sass stated that he was seeing more of a trend to high-end office space. He was not seeing a lot of tech use. Mr. Sass said that he believed housing was important for the current needs of the community. Martin Bishop recommended that the largest high tech employers in the City purchase some of the outdated commercial facilities and convert them into housing for their employees. He suggested that they could also provide childcare for their employees. Council recessed until 6:45 p.m. PLEDGE OF ALLEGIANCE At 6:45 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 Richard Lowenthal, Vice-Mayor Kris Wang and Council members Patrick Kwok, Orrin Mahoney and Dolly Sandoval. April 4, 2006 Cupertino City Council Page 3 PUBLIC COMMENTS REGARDING CLOSED SESSION Joseph Ye spoke on behalf of the California Dolphin Swim School (CDSS) on the subject of the lease and upgrade of the pool at the Cupertino Sports Center. He noted that this project had gone through some challenging times and was presently downsized from the scope of the original project. The existing pool enclosure would be used and the pool house would be updated only for compliance with ADA requirements. Mr. Ye believed this was a win-win situation for the City as well as for the CDSS. He noted that it would attract world-class Olympic swimming instructors and the City could use up to $130,000 funding from the private sector tenant to upgrade the pool. Mr. Ye also stated that this was a profitable long- term arrangement from a real estate point of view. CLOSED SESSION 2. Negotiations for purchase. sale. exchange or lease of real propertv - Government Code Section 54956.8, California Dolphin Swim School Lease, Therese Smith, Don McCarthy, Charles Kilian, Terry Greene. Council agreed to move item 15 forward on the agenda. Sandova1/Kwok moved and seconded to agree to accept Mr. Ye's offer in his 3/28/06 letter to cancel the lease between the California Dolphin Swim School and the Cupertino Sports Center. This was done without prejudice to negotiate a new and different lease with CDSS, which may include items raised by Mr. Ye in his 4/4/06 letter. Staff will bring a status report to the May 2, 2006 Council Meeting on this issue. It was further noted that discussions at this time would be limited to CDSS. CEREMONIAL MATTERS - PRESENTATIONS 3. Presentation from Board member Tony Estremera of the Santa Clara Vallev Water District for Cupertino's membership in the Water Resources Protection Collaborative, "Escaping the Constraints Award" from the Public Officials for Environmental Reform (POWER) (continued from January 3). Tony Estremera thanked the Council for its continued support of the Water Resources Protection Collaborative and presented them with a 2005, "Breaking the Constraints Award" from the Public Officials for Water and Environmental Reform. This award was given to those who had overcome obstacles to move California Water Reform forward. 4. Presentation of a donation from the Monta Vista High School Future Business Leaders of America for the Library donation campaign. Barbara Rogers, on behalf of the Library Foundation Board, introduced four members of the Future Business Leaders of America. She noted that they organized two cultural events at the Quinlan Center as a fundraising event for the library. Mrs. Rogers also introduced other members of the Board who were present. Mayor April 4, 2006 Cupertino City Council Page 4 Lowenthal accepted a check in the amount of $3,850 from the members of the Future Business Leaders of America and thanked them for this accomplishment. POSTPONEMENTS Regarding item 25, the City Attorney noted that Vallco's attorney had requested a continuance to the May 2 meeting and he agreed with this request. Mahoney/Kwok moved and seconded to continue item 25 to the May 2 Council Meeting. The motion carried unanimously. Regarding item 15, staff was requesting a continuance to May 2 as the staff person handling this issue had just had a baby. It was also pointed out that a continuance would give the Housing Commission the opportunity to discuss this matter at its next meeting. Kwok/Mahoney moved and seconded to continue item 15 to the May 2 Council Meeting. The motion carried unanimously. Regarding item 23, Councilmember Kwok asked that it be removed from the agenda. He noted that he had originally requested that the matter be discussed but he now suggested that this matter be brought back when Council discussed criteria for the awards. Kwok/Wang moved and seconded to take item 23 off the calendar. The motion carried unanimously. WRITTEN COMMUNICA nONS ORAL COMMUNICA nONS Paul Poon stated that a referendum against the Council's approval of housing at both the Vallco project and Toll Brothers project (Ordinances #1975 and #1977) was being circulated. The referendum would place these ordinances on hold and the matter would go to the voters on the November 2007 ballot at very little or no cost to the City. Mr. Poon noted that they needed 3,000 signatures within 30 days and he urged everyone to go to the library and sign the referendum. Lola Kashyap urged the City to support solar energy as a renewable resource. Charlie Ahern first clarified a statement he made at an earlier meeting. Specifically, he suggested removal of a tree at Finch and Stevens Creek, and not the sycamore on the Toll Brothers' property. Second, he urged everyone to not support the referendum. He questioned the method of collecting signatures, noting that those circulating the referendums were refusing to give copies of the document and would not let people read what they were signing. He also urged Council to clarifY the issue of the impact on the schools. Mr. Ahem referred to an article in the 11/10/05 issue of the San Jose Mercury on the defeat of Measures A, B and C. Rahul Vadodkar supported the referendum and clarified that no one had asked for a copy but certainly would be given one if they had. He also stated that everyone was welcome to read April 4, 2006 Cupertino City Council Page 5 the entire document. On the subject of the school issue he said he appreciated that the Council was unable to judge an application based on its impact on the schools but the residents were not so prohibited. The overcrowding of schools was an important issue to many. Nelson D'Souza noted that he was collecting signatures for the referendum and anyone was welcome to see these documents at any time. He stated that the citizens had a right to vote on this. Shilpa Joshi supported the referendum and urged everyone to sign it. CONSENT CALENDAR Sandoval/Kwok moved and seconded to approve the items on the Consent Calendar as recommended, with the exception of item 9, which was pulled for discussion. The motion carried unanimously. 5. Adopt resolutions accepting Accounts Pavable for March 17 and 24, Resolution Nos. 06-057 and 06-058. 6. Adopt a resolution accepting Payroll for March 24, Resolution No. 06-059. 7. Accept the Treasurer's Investment Report for February 2006. 8. Approve budget adjustment to cover costs of additional City Council and Planning Commission March meetings. 10. Adopt a resolution setting a public hearing date of April 18 to consider abating ª public nuisance at 10630 Carver Drive, APN No. 375-32-020, Patrick W. McGrath property owner, Resolution No. 06-060. II. Adopt resolutions approving an improvement agreement with Sandra L. Delgado, 10739 Santa Lucia Road, APN 342-17-100: a) Lot I, Resolution No. 06-061 b) Lot 2, Resolution No. 06-062 12. Adopt a resolution supporting AB1l7 (Cohn) to restore full property tax TEA Funding to the City of Cupertino, Resolution No. 06-063. ITEMS REMOVED FROM THE CONSENT CALENDAR 9. Authorize recruitment of a part-time Disaster Preparedness position to assist with the existing training courses, outreach and volunteer management. Robert Levy stated that he was an emergency preparedness volunteer and with all the programs being included under the umbrella of disaster preparedness, he did not think a part-time position was enough. He urged Council to consider more than just a part- time position. April 4, 2006 Cupertino City Council Page 6 Council commented on budgetary constraints and also noted that they were now being trained in emergency preparedness. Sandoval/Wang moved and seconded to authorize recruitment of a part-time disaster preparedness position to assist with the existing training courses, outreach and volunteer management. The motion carried unanimously. PUBLIC HEARINGS 13. Consider adopting a resolution adopting the 2006-07 Annual Action Plan and the use of fourth program year (2006-07) Communitv Development Block Grant CDBm Funds and Human Service Grants, Resolution No. 06-064. Kwok/Sandoval moved and seconded to adopt Resolution No. 06-064. The motion carried unanimously. 14. Consider adopting a resolution accepting the 2006-07 Fee Schedule, Resolution No. 06-065. Director of Administrative Services Carol Atwood reported that staff had reviewed the user fees with the goal of cost recovery in place. Except for the following specific fees, she noted that all other fees were either increased by a cost of living factor of 3% or kept at the same level as last year. The four fees for separate consideration were: parking permit fees, solar permit fees, reconsideration fees and tree removal fees. The issues involved whether or not Council wanted to keep the parking permit fees at a cost recovery level ($22.50 per year) or remove this fee; charge a flat fee for solar installations; charge $500 for reconsideration requests of Council decisions to cover additional staff time, noticing, etc.; and increase the fine for removal of heritage trees (currently $2,536 for a permit to remove tree and a $2,536 fine for removal without permit). In addition Ms. Atwood noted that the building fees were under separate review and would be brought to Council in August/September. City Attorney Charles Kilian noted that Cupertino was a General Law city and was covered by different rules than Charter cities. Regarding the tree removal issue and fines in place in other cities, he recommended that comparisons be made with other General Law cities for a more effective comparison. Council directed staff to review other General Law cities and to have the consultant review tree removal without a permit for heritage and protected trees in conjunction with the review of building fees. In addition Council requested that the housing in- lieu mitigation fee for residential housing be reviewed in conjunction with the consultant's study. Director of Public Works Ralph Qualls referred to the parking permit fees and noted that the consultant, in line with the cost recovery goal, had recommended this fee. He noted that there were 539 parking permits in the City. The process whereby residents in a neighborhood requested parking permits was simply reversed if they wanted to remove permit parking. They signed a petition and submitted it to the City requesting no more permit parking. April 4, 2006 Cupertino City Council Page 7 Robert Levy commented on the tree removal issue and the permit costs involved in replacing a home lost, for example, in a fire. He suggested the City was trying to replace monies, which had been taken away by the State by issuing such fees. He noted that with the lack of a citywide tax, the Council was placing the burden on individuals with such fees. Kurt Newick stated that it was critical that everyone paid attention to the sun as our energy source. He supported the Sierra Club's recommendation of a flat rate of $300 or less for solar permits. The following spoke against the parking permit fees: Suzanne Ford, Michael Jordan, Ed Ford and Bill Kuncz. They raised the following issues: inequitable - some residents have to pay for what others get for free; problem with inadequate number of permits per household and stolen guest permits and stickers; inadequate notification when this fee was put in place; poor response from Sheriffs Department; and this fee should not be a source of revenue for the city. Dan Marshall supported the flat $300 fee for solar installations particularly as he believed such installations were furthering the public good. He also suggested that some inspections might be waived for these installations. For example, he commented that the plans for all solar systems were basically the same, which would reduce inspection time. Darrel Lum stated his opposition to any fee for a reconsideration hearing. Mahoney/Kwok moved and seconded to adopt a resolution accepting the 2006-07 Fee Schedule, Resolution No. 06-065 with the following changes: I) the solar installation fee shall be a $300 flat fee for a residential system and the fee for larger solar systems (non-residential) shall be based on the current fee structure; and 2) the petition for reconsideration fee shall be set at $500. The motion carried unanimously. KwoklLowenthal moved and seconded to eliminate the parking permit fee. The motion failed. Wang/Sandoval moved and seconded to continue discussion of the parking permit fee issue to the May 2 meeting to allow staff time to provide additional information. The motion carried unanimously. UNFINISHED BUSINESS 15. Request from the Cupertino Union School District (CUSD) to amend the eligibility requirements for the Below Market Rate (BMR) program to give CUSD teachers a point for working within the City of Cupertino limits, regardless of the city they are working in, as long as they are employed by CUSD (continued from March 7). This item was continued to the May 2 meeting. April 4, 2006 Cupertino City Council Page 8 NEW BUSINESS 16. Consider terminating the lease with California Dolphin Swim School. This item had been discussed with item 2 on the agenda. 17. Consider adopting a resolution authorizing the City Manager to negotiate and execute a non-exclusive encroachment agreement between the City and Infor-Tech Communications, a wholly-owned subsidiary of OnFiber Communications, Inc., for the installation and maintenance of telecommunications system throughout the City, Resolution No. 06-066. Kwok/Wang moved and seconded to adopt Resolution No. 06-066. The motion carried unanimously. 18. Consider an appeal by David and Margaret Critzer and Jowei Chen of the Notice of Determination by the City Manager denying the appeal of the Community Development Director's decision regarding the installation of a bathroom window at 20272 Northcove Square (continued from February 27). Director of Public Works Ralph Qualls reviewed the staff report and a chronology of the events. James Eller, appellants' attorney, showed pictures of the bathroom window, and explained that it was a visual intrusion into his clients' backyard and interior space. He requested that Council revoke or amend the permit, or declare the window a nuisance and remove it. He further suggested possible solutions including: removing the window, sealing the window, raising the fence or placing awnings over the window to block the window. Mr. Eller stated that this matter had been going on since 2003 and was not a minor modification, but an intrusion on his clients' privacy, and his clients' had received no notification regarding the permit. Margaret Critzer explained the visual intrusion into their home noting that from the bathroom window one could see directly through their home to the front door. She said that in mediation they had agreed to an opaque bathroom window that opened only at the bottom but the owner of the condo at that time did not agree with this option. Council discussed the appeal before them and said that this was a matter between the appellants and the homeowners association, and that a lawsuit had been filed. Kwok/Mahoney moved and seconded to deny the appeal and that the Community Development Director acted property and in full compliance with the code in issuing a building permit for the bathroom window. The motion carried unanimously. April 4, 2006 Cupertino City Council Page 9 19. Consider adopting a resolution authorizing the City Manager to execute a second amendment to the City's existing agreement with the Santa Clara Vallev Water District for the reconstruction of the bridge on Bollinger Road over Calabazas Creek, Resolution No. 06-067. Mr. William Springer, Santa Clara Valley Water District, commented that the physical model study was taking longer than they expected which was why the project would not be completed this year. They were requesting a two year extension but hoped the project would only take a year or less. He noted that a mailer was being prepared notifying the neighbors of this delay. KwoklSandoval moved and seconded to adopt Resolution No. 06-067 with the condition that the notice to the neighbors is sent within two weeks. The motion carried unanimously. 20. Consider Application Numbers U-2006-02, ASA-2006-04, (EA-2006-04) for Vallco restaurants, Mike Rohde (Vallco Fashion Park), 10123 N. Wolfe Road, APN 316-20- 064 (continued from March 22): 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 Community Development Director Steve Piasecki reviewed the staff report. Mike Rohde, Vallco Fashion Park Representative, stated that these two restaurants would help the viability of the center. He also noted that this was a regional shopping center and not a strip mall, and that there was more than enough parking. In response to an inquiry from Council, Mr. Rohde stated that the restaurants planned on being open by Thanksgiving when the theatres would be open. He said that there was no further agreement with Sears for additional restaurants in this area. Mr. Rohde concurred with the Planning Commission recommendations. Kurt Ellis, P&R Architects, made a PowerPoint presentation on the master plan, the site plan, the sidewalk system, the height of the buildings, and the courtyard shared by the restaurants. Ching Shyu expressed her concerns about privacy and the impact on the East Estates Drive area. She requested a change in the site plan. Jennifer Griffin shared her concerns about the impact on the neighborhoods but hoped that this would be a quality project that would fit in with the surrounding area. She particularly supported no glaring colors, no palm trees, April 4, 2006 Cupertino City Council Page 10 the protection of the ash trees, no 30- foot towers on the restaurants, and protection of the greenbelt along Stevens Creek and Wolfe. Council raised the issue of a pedestrian path through the Sears parking lot and a discussion followed of ways this could technically be achieved (i.e. angled vs. perpendicular parking). Council agreed this walkway was extremely important. Sandoval/Mahoney moved and seconded to adopt the negative declaration. The motion carried unanimously. Sandoval/Kwok moved and seconded to approve 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, including the Planning Commission's recommendations and the added condition that a 4-foot wide pedestrian path be placed through the Sears parking lot. The motion carried unanimously. Sandoval/Kwok moved and seconded to approve the tree removal permit (EA- 2006-04). The motion carried unanimously. 21. Receive a resignation letter from Parks and Recreation Commissioner Rod Brown and select an application deadline and interview date. Council agreed to accept applications until Friday, May 5 and to conduct interviews on Tuesday, May 16 at 5:00 p.m. 22. Discuss the Santa Clara County Cities Association Selection Committee appointment to the Bav Area Air Oualitv Management District Board. Councilmember Kwok recommended that Council support Monte Sereno Councilmember Eric Garner for reappointment to the Bay Area Air Quality Management District Board. It was agreed that Vice Mayor Wang would take this recommendation to the Santa Clara County City Selection Committee. 23. Discuss the Crest Award process and policy. This item was removed from the agenda. 24. Report on the City's Fiscal Strategic Plan and set a studv session date of May 2, at 5:30 p.m. Council scheduled the study session for May 2 at 5:30 p.m. April 4, 2006 Cupertino City Council Page II ORDINANCES 25. Conduct the second reading of Ordinance No. 1976: "An Ordinance of the City Council of the City of Cupertino Modifying a Development Agreement (l-DA-90) to Encompass the Development Proposed in U-2005-16, ASA-2005-11, Z-2005-05 and TR-2005-04 for a 137 Unit, Two and Three Story Residential Condominium Development at 10123 N. Wolfe Rod." (Vallco) (continued from March 22). This item was continued to the May 2 meeting. STAFF REPORTS COUNCIL REPORTS ADJOURNMENT The meeting was adjourned at II :50 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 Council/Packets. Most Council meetings are shown live on Cable Channel 26 and are available at your convenience from our web site. Visit Www.cuDertino.org and click on Watch Meetings. Videotapes are available at the Cupertino Library or may be purchased from the Cupertino City Channel, 777-2364.