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CC 05-02-06 CUPEI{fINO APPROVED MINUTES CUPERTINO CITY COUNCIL Special Meeting Tuesday, May 2, 2006 ROLL CALL At 5:00 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, and Council members Patrick Kwok, Orrin Mahoney, and Dolly Sandoval. Absent: none. PUBLIC COMMENTS REGARDING CLOSED SESSION CLOSED SESSION At 5:02 p.m. the Council went into closed session in the Community Hall kitchen, 10350 Torre A venue, Cupertino. 1. Significant exposure to litigation - Government Code Section 54956.9(b )(1), potential litigation of Toll Brothers vs. the Citv ofCuoertino, and Valleo vs. the Citv ofCuoertino regarding the referenda process. At 5:40 p.m. Council reconvened in open session. The City Attorney announced that the Council had met in closed session and had decided that, with respect to any and all litigation that may result from the referenda against the Valleo and Toll Brothers ordinances, the City Council and City Clerk would take a neutral position with respect to all such litigation. RECESS - from 5:40 p.m. to 6:00 p.m. STUDY SESSION 2. Conduct a study session on the Fiscal Strategic Plan. Administrative Services Director Carol Atwood referred to the Fiscal Strategic Plan Issues Paper dated May 2, 2006. The goal was to combine reliable revenue sources with stabilized costs. The problem was that the current revenue structure could not fund the projected needs and several revenues were at risk or might be eliminated. The revenue solutions included the following: pursue Tax Equity Allocation (TEA) relief with Santa Clara County; re-assess park dedication fees on a continual basis; negotiate with Hansen regarding future land use rights in exchange for annexation; support economic May 2, 2006 Cupertino City Council Page 2 development; float an entertainment tax on 11/06 ballot; phase out the park dedication payback over the next 5 years; modify Utility User Tax for cell phones in 11/06; consider assessing a sales tax in-lieu fee; revisit a County Communications fee; and consider a refuse vehicle impact fee. The expenditure and risk exposure solutions included in part the following: automate and streamline service delivery; contract school maintenance; increase block leaders, CERT and neighborhood watch; change Enterprise Fund accounting; possible establishment of a retiree medical trust fund; and shift/share sidewalk liability and street tree maintenance. Council thanked Ms. Atwood for her report and provided the following direction to staff: work with legislative committee on issues affecting the city such as the Tax Equity Allocation and get the residents involved; pursue an entertainment tax and possible TOT increase for November ballot; pursue Utility User Tax for cell phones on the November ballot; provide election cost information on 11/06 potential ballot issues; get information on a possible County Communications fee to businesses for their input; involve the Chamber of Commerce; pursue negotiations with Hansen; phase out park dedication payback over the next 5 years; review the benefit of a one-year sales tax in-lieu fee as opposed to a tax continuing over several years; set a low priority for a refuse vehicle impact fee; do not pursue the sidewalk and street tree liability issue at this time; and bring back for discussion the elimination of medical/retiree benefits for Council. It was further agreed that Ms. Atwood would provide Council with a timeframe for implementation of these options with special emphasis on time sensitive issues. This information would be available for the budget study session on May 31. Input from the City Attorney would also be provided. PLEDGE OF ALLEGIANCE At 7:33 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. Present: Mayor Richard Lowenthal, Vice-Mayor Kris Wang, and Council members Patrick Kwok, Orrin Mahoney, and Dolly Sandoval. Absent: none. CEREMONIAL MATTERS - PRESENTATIONS 3. Proclamation regarding affordable housing. Mayor Lowenthal presented a proclamation to Kathy Robinson of Catholic Charities stating May 13-20 as Affordable Housing Week in Cupertino. Ms. Robinson thanked the Council for their support and invited the public to attend an educational forum regarding affordable housing on Tuesday, May 16 at Creekside Park from 6:00 p.m. to 8:00 p.m. 4. Proclamation for the National Alliance on Mentallllness. Under "Postponements", this item was removed from the agenda because staff had not yet received the information needed to prepare the proclamation. May 2, 2006 Cupertino City Council Page 3 POSTPONEMENTS WanglKwok moved and seconded to continue item No. 17 to July 18. The motion carried unanimously. Mahoney/Kwok moved and seconded to remove item No.4 from the agenda. The motion carried unanimously. Mahoney/Wang moved and seconded to continue item No. 11 to May 16. The motion carried unanimously. WRITTEN COMMUNICATIONS Letter from J. 1. Julias regarding item No. 12, objecting to the $45 fee for on-street parking on her street. . ORAL COMMUNICATIONS Jennifer Griffin commented on the issue of sidewalk and street tree maintenance. She believed it would be a step backwards if the city did not continue to maintain the city sidewalks and the street trees. If they did not, there would be opportunities for the residents to remove the trees or not maintain them properly. In addition she recommended that street trees be fenced during construction. Robert Levy stated that he would be happy to take ownership of the sidewalk and street in front of his house. He did not think the city was maintaining it as well as it once did. Mr. Levy also commented on the cost of dealing with the San Jose Water Company and the issue of what was affordable housing. MaIjan Kashvad referred to the activities at the Blue Pheasant. She noted that at a recent homeowners' meeting held at the Blue Pheasant the owner had commented that he was considering asking for approval to stay open until midnight on Thursday, Friday and Saturday nights. He said he was required to close at 11 :00 p.m. and this was negatively affecting his business. The homeowners' group was concerned about this as they thought this issue had been resolved. Ms. Kashvad stated that even now activities continued after 11 :00 p.m. because the requirement was that no one could be admitted after II :00 p.m. but those already there could stay an hour or so later. She also questioned what the noticing process to the neighbors would be if this request did come back to Council. City Attorney Chuck Kilian stated that no such request from the Blue Pheasant had been received but when and if it did the regular notification process would be followed. This would include notifying the neighbors of public hearings held by the Planning Commission and, if appealed, by the City Council. CONSENT CALENDAR SandovallKwok moved and seconded to approve the items on the Consent Calendar as recommended. Ayes: Kwok, Lowenthal, Mahoney, Sandoval, and Wang. Noes: None. May 2, 2006 Cupertino City Council Page 4 5. Approve the minutes from the March 21 and 22 City Council meetings. 6. Adopt resolutions accepting Accounts Pavable for April 14 and 21, Resolution Nos. 06- 077 and 06-078. 7. Adopt a resolution accepting PaVfoll for April 21, Resolution No. 06-079. 8. Adopt a resolution approving the destruction of records (City Clerk, Human Resources, City Manager/Public Information Office), Resolution No. 06-080. 9. Adopt a resolution declaring brush growing on certain described properties to be a public nuisance and setting a hearing for June 6 for objections to proposed removal, Resolution No. 06-081. 10. Approve an application for an Aleoholic Beverage License for Mothers Tofu House, 7335 Bollinger Road (cross street S. De Anza Blvd.). ITEMS REMOVED FROM THE CONSENT CALENDAR PUBLIC HEARINGS UNFINISHED BUSINESS 11. 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 April 4). Mahoney/Wang moved and seconded to continue this item to the May 16 meeting. The motion carried unanimously. 12. Consider amending the 2006-07 fee schedule to set oermit parking fees for the 2006-07 fee schedule, Resolution No. 06-082. (Continued from April 4). Administrative Services Director Carol Atwood reported that residents had been given the opportunity to get permit parking to address certain parking issues such as living near a school. This permit had been given at no charge until two years ago. At that time it had been decided to charge $45 for a two-year permit to cover the city's costs of processing, issuing, monitoring and printing the permits. Residents were not notified of this new charge. Currently 539 houses had permits; 319 had paid the $45 and 220 had not. Staff recommended that the Council stay with the two-year permit currently in place and then look at the whole issue of the permit parking process. Council received a letter from J. 1. Julias, objecting to the $45 fee for on-street parking on her street. May 2, 2006 Cupertino City Council Page 5 Bruce Smith commented that getting a permit to park in front of one's house was not a privilege. It was a method of dealing with a nuisance such as overflow parking from nearby schools. There was also no mechanism for enforcement. He urged Council to look for solutions that would take care of all the city's residents. Louise Levy concurred with Mr. Smith's comments. Permit parking was not a privilege and they should not have to pay for it. Robert Levy believed the problem was not only Council's but also the School Board's. Cupertino's schools had been impacted by additional students from other cities. This negative impact on certain neighborhoods had resulted in residents not being able to get certain services such as garbage pickup. Michael Jordon recommended that the entire issue of permit parking be reevaluated. In his neighborhood residents had not been able to get basic city services because of the parking issue and it was a major hassle to get extra passes when one was having company. Council discussed the following issues: importance of notifying residents of such fees; question of refunding monies already paid - too costly?; continued need for parking fees?; continuance of parking permit areas?; allowing anyone who wanted a permit to get one for one year at $22.50; and emphasis that schools should provide off-site parking. Mahoney/Sandoval moved and seconded to set a one-year permit parking fee (for 2006- 2007) in the amount of $22.50, with the expectation that the permit parking fee will then be eliminated by 7/30/07. Mayor Lowenthal issued a minute order directing staff to place an item on the agenda after the 2006-07 budget was adopted but before the end of the year 2006 to consider placing a sunset clause on preferential parking zones. NEW BUSINESS 13. Consider an appeal by John McMorrow of the City Manager's Determination regarding site access for the Silverstone proiect on De Anza Blvd., Application No. U-2002-6, Cupertino Town Center, located southeast of the intersection of De Anza Blvd. and Rodrigues. Public Works Director Ralph Qualls presented background on the appeal before Council for site access to the Town Center project. The issue of the appeal was the Public Works Director's determination that a left turn median break not be allowed for the South Driveway of the Silverstone Retail Project on DeAnza Blvd. The developer filed an appeal of this decision and was asking that a left median break be allowed. In 5/03 application for this project was received and in 12/04 the determination was made concerning the left turn median break. The developer was advised of this decision and was also given the option to extend, at his expense, to the left turn pocket at McClellan for southbound traffic on DeAnza Blvd. to expedite u-turns by vehicles accessing the May 2, 2006 Cupertino City Council Page 6 retail site from the northbound lanes. The developer did not pursue this option stating that the cost would be prohibitive. Construction permits for the project were issued and offsite plans were approved in 8/05 with no median break or signal at DeAnza Blvd. The project was currently under construction. John McMorrow, Silverstone Communities, stated that their goal was to create a vibrant, exciting destination retail center that would be pedestrian friendly and would attract excellent tenants. Along DeAnza there was about 8,000 square feet of retail space but on the side street there was no visibility and they needed a strong anchor to lease in this location. To get this strong anchor they needed access off DeAnza. Mr. McMorrow commented on the following three statements regarding his appeal: 1) The left turn pocket from DeAnza was critical to the success of the retail leasing effort and for the viability of retail along Town Center Lane; 2) The left turn pocket from DeAnza into the project was a better traffic alternative for Pacific Avenue; and 3) There were at least nine other left turn pockets along DeAnza south of 280 into "private" driveways so this would not establish any precedent. He commented that the traffic consultant had stated such access off DeAnza would be safe and he urged Council to grant their appeal. Public Works Director Ralph Qualls made the following comments in response to the points raised by Mr. McMorrow: 1) There were approximately 200 similar retail tenants/ businesses along DeAnza from Homestead to Route 85 that did not have any median break providing a left turn into their respective driveways; 2) There was no appreciable improvement at the Pacifica intersection with or without a median break; and 3) There were only two left turn pockets into private properties on DeAnza Blvd. (Home Depot and Ventana Housing) and both were in San Jose. All other median breaks were at the intersections of public streets and all but one were fully signalized intersections. There were no signalized intersections and no left turn median breaks at private driveways on DeAnza Blvd. (Homestead to Route 85). Public Works Director Ralph Qualls listed the following as the basis for denial of this appeal: 1) median break left turn at South Driveway would create potential vehicular conflicts and could result in preventable accidents; 2) no condition was included in the original entitlement approval allowing a median break or the signal; 3) no proof or history to support claim that a median break determined success of the retail leasing program; 4) about 200 businesses/retail tenants were operating on DeAnza without median break left turns; and 5) no precedent in Cupertino for a median break on DeAnza Blvd. for a private driveway - would set a bad precedent as proposed. Staffs recommendation was for denial of this appeal. Mr. Qualls did note that an option might be available for Council's consideration. For the sake of economic development, if the developer was able to reach agreement with a major tenant and a condition of that agreement was the installation, at the tenant's expense, of a signalized southbound left turn into the south drive, staff would consider this a workable solution. Council discussed the following issues regarding the appeal before them: retail viability with or without the left turn median break; the safety factor; the precedent setting of such an access; not enough economic basis to support a traffic signal at this time; was there a way to determine economic development ahead of time which would provide a good enough rationale for a traffic signal; not enough convincing arguments that a left turn May 2, 2006 Cupertino City Council Page 7 median break was needed by tenant; a signalized intersection would be safe and would ensure the success of new retail; a signal would be paid for by the tenant now but at a later date might have to be paid for by the city; not a tenant issue but a land use issue; car safety issue vs. bicycle/pedestrian safety issue; giving the developer the opportunity to pay for a signal to attract a big name tenant not giving the developer a traffic signal; and not precedent setting as most developers would not spend the money to do this major improvement. Wang moved to deny the appeal and uphold the determination of the City Manager. Kwok seconded for purposes of discussion. The motion failed, with Council members Kwok, Lowenthal, Mahoney, and Sandoval voting no. Mahoney/Sandoval moved and seconded to approve a signalized southbound left-turn into the south drive, subject to review and approval by the Public Works Director's review of the plans. The motion carried with Council member Wang voting no. Council specified in the discussion that in granting approval of this unique and particular feature on De Anza Boulevard that it was not setting a precedent for future development to be assured of a similar feature in conjunction with a particular project. In upholding the appeal, Council made clear its expectation of a high quality retail tenant being placed in this location. 14. Adopt resolutions approving agreements for Countywide household hazardous waste services: a) AB 939 Implementation Fee, Resolution No. 06-083 b) Hazardous Waste Collection Program, Resolution No. 06-084 Kwok/Sandoval moved and seconded to adopt Resolution Nos. 06-083 and 06-084. The motion carried unanimously. 15. Consider setting a study session on Mav 31 at 4:00 p.m. to discuss the City budget. Council agreed to schedule the budget study session at 4:00 p.m. on May 31. This meeting will end no later than 9:00 p.m. 16. Consider canceling a meeting in August to accommodate family vacation schedules Council agreed to cancel the meeting of August I, 2006. ORDINANCES 17. 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-2005-11, Z-2005-05 and TR-2005-04 for a 137 Unit, Two- and Three- Story Residential Condominium Development at 10123 N. Wolfe Road." (Valleo). (This item is recommended for continuance to May 16). May 2, 2006 Cupertino City Council Page 8 Under "Postponements" the City Attorney suggested that this item be continued for at least 60 days as it is currently the subject of a referendum. WanglKwok moved and seconded to continue item No. 17 to July 18. The motion carried unanimously. STAFF REPORTS COUNCIL REPORTS Council members highlighted the activities of their committees and various community events. ADJOURNMENT At 11:12 p.m. the meeting was adjourned to Tuesday, Mav 16 at 5:00 p.m. for Parks and Recreation Commission interviews, City Hall Conference Room A, 10300 Torre Avenue, Cupertino. 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.cuoertino.org.Click on Agendas & 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.