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CC 05-16-06 CUPEI{fINO APPROVED MINUTES CUPERTINO CITY COUNCIL Regular Meeting Tuesday, May 16, 2006 PLEDGE OF ALLEGIANCE At 6:45 p.m. Mayor Richard Lowenthal called the meeting to order in the Council Chamber, 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 and Dolly Sandoval. Absent: Orrin Mahoney. CEREMONIAL MATTERS - PRESENTATIONS 1. E-services presentation on Access Cupertino, an online service for residents to track their communications with City Hall. (No documentation in packet). Public Information Officer Rick Kitson explained how citizens can sign up for Access Cupertino on the City's website, www.cupertino.org. He encouraged residents to check out the most recent issue of the Cupertino Scene to fill out an E-Services survey. He said Access Cupertino is in addition to the other traditional ways of receiving service from the City, including in person, by phone, and by email. He noted that the City Hall information number is 777-CITY. 2. Proclamation for May 21-27 as National Public Works Week. (No documentation in packet) . Mayor Richard Lowenthal presented the proclamation to Assistant Director of Public Works Glenn Goepfert. 3. Proclamation for May 21-27 as Mental Health week. (No documentation in packet). Mayor Richard Lowenthal presented the proclamation to the past president of the National Alliance on Mentallllness (NAMI) for Santa Clara County. POSTPONEMENTS WRITTEN COMMUNICATIONS May 16, 2006 Cupertino City Council Page 2 Deputy City Clerk Grace Schmidt noted four communications: 1) A follow-up email from Bob Levy regarding the Council meeting of May 2, 2006; 2) An email from Janice Ishii regarding item 19 asking for no special election; 3) An email from Rog Pickler regarding item 17 asking for Council support; 4) Additional correspondence from Keith Murphy regarding item 21. ORAL COMMUNICATIONS Al Deridder mentioned he had read a Courier article regarding the City charging a $500 fee for a petition for reconsideration. Mayor Lowenthal explained the reasoning behind charging the fee and noted that it wouldn't apply to the referenda petitions. Rhoda Fry asked for reassurance that Council wanted to hear from Monta Vista residents regarding the new park at Blackberry Farm. She was concerned that only 15-20% of those who use the park would be Cupertino residents, and that doesn't make it a community park. City Manager David Knapp said that an environmental review (EIR) is proceeding currently and once that document is completed, and all comments are received and responded to, then a more thorough review of the project would begin with public hearings. Mayor Lowenthal said that Council wants more residents to take advantage of the park and wants input from the residents how best to accomplish that. CONSENT CALENDAR SandovallKwok moved and seconded to approve the items on the Consent Calendar as recommended, with the exception of item Nos. 8, 10, and 11 which were pulled for discussion. Ayes: Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: Mahoney. 4. Approve the minutes from the April 4 and 18 City Council meetings. 5. Adopt resolutions accepting Accounts Pavable for April 28 and May 5, Resolution Nos. 06-085 and 06-086. 6. Adopt a resolution accepting PaVfoll for May 5, Resolution No. 06-087. 7. Accept the Treasurer's Investment reoort for March 2006. 9. Adopt a resolution supporting Proposition 81 regarding the 2006 California State Librarv Construction bond, Resolution No. 06-088. 12. Sing-Chung Hu and Hsien-Hsien Diana Hu, 10026 Orange Avenue, APN 357-17-060: a) Adopt a resolution approving an improvement agreement, Resolution No. 06-089 b) Adopt a resolution approving a grant of easement for roadway purposes, Resolution No. 06-090 13. Cheng Hsin Yin and Vickie Peng, 10038 Orange Avenue, APN 357-17-059: May 16, 2006 Cupertino City Council Page 3 a) Adopt a resolution approving an improvement agreement, Resolution No. 06-091 b) Adopt a resolution approving a grant of easement for roadway purposes, Resolution No. 06-092 14. Adopt a resolution authorizing a request to the Metropolitan Transportation Commission for an allocation of Transportation Development Act Article 3 Pedestrian and Bicycle Project grant funding for the Marv Avenue Bicvcle Footbridge, in the amount of $42,193.00, Resolution No. 06-093. 15. Adopt a resolution authorizing the City Manager to execute a Disadvantaged Business Enterprises (DBE) Race-Neutral Implementation Agreement with the California Department of Transportation (Caltrans), Resolution No. 06-094. 16. Reappoint Joseph Walton to the Santa Clara Vallev Transportation Authoritv Bicvcle Pedestrian Advisorv Committee for the new term beginning July 1, 2006. ITEMS REMOVED FROM THE CONSENT CALENDAR (above) 8. Review and approve vear-end budget adjustments for fiscal year 2005-06. Wang/Sandoval moved and seconded to approve the year-end budget adjustments. Ayes: Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: Mahoney. 10. Accept citv proiects performed under contract. (No documentation in packet): a) Marv Avenue Bicvcle Pedestrian Bridge, Phase 1 (Gordon N. Ball, Inc) b) 2004 Safe Routes to Schools Project-Hyde Middle School and Sedgwick Elementary School 2004-9544 (Chrisp Company) Staff will add a one-line sentence on the agenda further explaining the item when that item has no documentation in the packet. Wang/Sandoval moved and seconded to accept city projects performed under contract. Ayes: Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: Mahoney. 11. Accept municipal improvements. Lynn & Mikiko Youngs (Curb and Gutter, Sidewalk, Storm Drain), 10965 Miramonte Road, APN 356-01-032. (No documentation in packet). Staff will add a one-line sentence on the agenda further explaining the item when that item has no documentation in the packet. Wang/Sandoval moved and seconded to the city projects performed under contract. Ayes: Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: Mahoney. May 16, 2006 Cupertino City Council Page 4 PUBLIC HEARINGS - None UNFINISHED BUSINESS 17. 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 May 2). Community Development Director Steve Piasecki reviewed the staff report and presented a PowerPoint presentation describing the pilot program that the Housing Commission suggested. Jacquey Carey, Housing Services Program Director of Cupertino Community Services (CCS), explained the process for BMR applications. Dr. Bill Bragg from CUSD said that each city has different criteria. He noted that part of the reason for this request is because all of Cupertino is part of the school district, and the district offices are also located in Cupertino, and it would address the equity of being able to provide the same plan to all of the employees. Bragg said that they would follow-up with what other cities do. Sandoval/Kwok moved and seconded that: 1) the City of Cupertino will enter into a partnership with CUSD to create a pilot program; 2) There is a 3-year sunset on the program; 3) The City Council will discuss the program in two and a half years; 4) CUSD commits to move a teacher to a Cupertino school within 18 months of signing a BMR deed; and 5) The program is for teachers only. The motion carried unanimously with Mahoney absent. NEW BUSINESS 18. Receive the City Clerk's certification of sufficiency for referenda petitions against Ordinance 1975 (Vallco condominiums) and Ordinance 1977 (Toll Brothers development). Deputy City Clerk Grace Schmidt stated that each petition needed a minimum of 2,543 signatures of registered voters in Cupertino, which represented 10% of the registered voters. She said that the Registrar of Voters had validated the signatures using the random sampling guidelines issued by the Secretary of State's Office, and determined that the petition against Ordinance 1975 had 5,051 signatures, and the petition against Ordinance 1977 had 4,644 signatures, so therefore the City Clerk's Office certified the petitions as sufficient for the referenda process. Kwok/Sandoval moved and seconded to accept the City Clerk's certification of sufficiency for both referenda petitions. The motion carried unanimously with Mahoney absent. May 16, 2006 Cupertino City Council Page 5 9. Repeal Ordinance No. 1975 (Valleo condominiums) and/or Ordinance No. 1977 (Toll Brothers development) or call an election(s): A) Vallco condominiums (Ordinance No. 1975) 1) Conduct the first reading of Ordinance No. 06-1980: "An Ordinance of the City of Cupertino Repealing Ordinance No. 1975 Which Rezoned a Parcel at 10123 N. Wolfe Road (Valleo);" or 2) Adopt a resolution calling for a special election, Resolution No. 06-095 B) Toll Brothers (Ordinance No. 1977) 1) Conduct the first reading of Ordinance No. 06-1981: "An Ordinance of the City of Cupertino Repealing Ordinance No. 1977 Which Rezoned a Parcel Located North of Stevens Creek Boulevard and South of 1-280 Between Tantau Avenue and Finch Avenue (Toll Brothers);" or 2) Adopt a resolution calling for a special election, Resolution No. 06-096 City Attorney Charles Kilian reviewed the staff report and explained the City Council's options of either repealing the ordinance(s) or setting either a special or a general municipal election date for one or both of the ordinances. He noted that staff recommends a special election in November 2006 due to cost savings, since the current estimates would be higher in 2007. Kilian also said that he received a fax from an attorney from Toll Brothers accompanying a petition seeking a court order voiding the referendum petition for the Toll Brothers ordinance. The title is Dorothy Stowe vs. The City of Cupertino, with the real parties in interest being the proponents of the referendum. He reiterated that Council had previously indicated the City is to take a neutral position on the lawsuit and suggested proceeding tonight with a decision to either repeal the ordinance(s) or call an election(s). Alicia Guerra, Land Use Counsel for Toll Brothers, talked about the referendum petition and said they support staff's recommendation that the petition be placed on the November 2006 special election. She said that Toll Brothers project would experience considerable delays if the election were to be held in 2007, effectively terminating the project. Mike Rohde from Valleo Fashion Park said that they support the Toll Brothers lawsuit and are still deciding whether or not to join it. He said that Valleo requests the City Council to postpone any decision tonight, but would support the voters deciding in 2006 rather than 2007. Al DeRidder asked Council to rescind its decision and start over. He said that the freeway noise, where the senior citizen housing would be, is extremely loud and that there are also parking issues. May 16, 2006 Cupertino City Council Page 6 Erv Conens said he was opposed to the condominiums. He noted that those who signed the petitions are letting the Council know what they want. Ned Britt said he was a proponent of the initiatives. He talked about credibility and consistency in the decision process of the Council, in that those members who voted against the projects should now vote to repeal the ordinances. Lloyd Martin said that due to incremental costs, the 2007 election would actually be cheaper. Administrative Services Director Carol Atwood noted that the numbers came directly from the Registrar of Voters office and that it was their best estimate. Patty Chi talked about the cost difference of holding an election in 2006 vs. 2007 and said that they should be equal considering other measures that would be voted on in 2007. She urged Council to either repeal the ordinances or put them on the general municipal election in 2007. Mark McKenna urged Council to call an election for November 2006. He said that if the projects were forestalled, then future funds would be forestalled. Roberta Hollimon commented on costs between the two elections. She said that it would be less expensive in 2006 because there are state, county, and city level candidates and initiatives, and in 2007 there would be only the city and the school districts. She noted that it would be very unlikely that the state would call another special election as they did last year. . Tom Hugunin said he wondered what the intent was of the people who signed the petitions, and noted that it seems like they want to vote on it, but when? He said it doesn't sound right for Cupertino to have a special election. Keith Murphy said that it was important to remember that there were hundreds of petition circulators allover the City, and not just near to the projects. He noted that 10,000 signatures were obtained from all over the City and that should carry some weight that there is interest in getting the petitions on the ballot as it was written on the referenda. Kilian noted that a majority Council affirmative vote is required for each petition for either the general municipal date or special election date. He recommended continuing the decision to the next meeting when all five Council members would be present. Sandoval/Lowenthal moved and seconded to adopt Resolution Nos. 06-095 (Vallco) and 06-096 (Toll Brothers) calling for a special election on November 7, 2006. Ayes: Lowenthal and Sandoval. Noes: Kwok and Wang. Absent: Mahoney. The motion failed. Sandoval/Lowenthal moved and seconded to continue the item to June 6. Ayes: Lowenthal and Sandoval. Noes: Kwok and Wang. Absent: Mahoney. The motion failed. Kilian said that Council had no choice but to continue the item to the next meeting because any citizen could bring a lawsuit and force a decision. May 16, 2006 Cupertino City Council Page 7 SandovallKwok moved and seconded to continue the item to June 6. The motion carried unanimously with Mahoney absent. Council directed staff to bring answers back to the following questions: 1) What was the initial cost of putting the initiatives on the ballot; were there any second and third issue charges; and what was the total cost ofthe election? 2) What are the different assumptions the Santa Clara County Board of Supervisors is basing their costs on, i.e. will there be an increase in staff cost, or are costs going up in general? 3) What would be the voter turnout for a gubernatorial election vs. a municipal election (odd year vs. even year)? 20. Adopt a resolution approving the Agreement for Processing of Yardwaste between the City of Cupertino and Zanker Road Resource Management Ltd., Resolution No. 06-097. Assistant Director of Public Works Glenn Goepfert reviewed the staff report. Kwok/Wang moved and seconded to adopt Resolution No. 06-097. The motion carried unanimously with Mahoney absent. 21. Consider a reconsideration of the City Council's decision to approve Application Nos. U- 2005-15, TM-2005-04, and EA-2005-17. The applicant is Kelly Snider (Toll Brothers). The project is located on Stevens Creek Blvd. @ Finch Avenue, APN Nos. 316-20-074, 316-20-078, 316-20-079, and 316-20-085. The petitioner is Keith Murohv, Resolution No. 06-098: a) Use Permit for mixed-use development conslstmg of approximately 115,600 square feet of commercial shopping center, up to 380 residential units and a 3.5- acre contiguous public park b) Tentative Map to subdivide 4 parcels (approximately 26-acres) into 6 parcels for a residential and commercial development consisting of approximately 115,600 square feet of retail shopping center, up to 380 residential units and a 3.5-acre contiguous public park. c) Mitigated Negative Declaration Community Development Director Steve Piasecki introduced the item. City Attorney Charles Kilian said that there are three issues: I) Whether the development is in or partially in a flood zone; 2) Whether there should be an Environmental Impact Report (EIR) done instead of a Mitigated Negative Declaration; 3) Whether Council member Mahoney should have recused himself based on an alleged conflict of interest. Petitioner Keith Murphy said that reconsideration isn't a useful tool for the public because it is a complicated process. He said he thought reconsideration was more like arbitration in order to work out issues. He noted that he tried reconsideration in order to understand the process. Alicia Guerra of Toll Brothers said that the property is not within the 100-year flood plain. She noted that the Federal Emergency Management Agency (FEMA) identified that May 16, 2006 Cupertino City Council Page 8 the property is outside the flood plain of Zone A (a flood hazard area). A portion of Calabasas Creek that is in Zone A is in a contained culvert and doesn't affect the property itself. In the zone B area, the property is located in an area that may get shallow flooding, but that doesn't mean the structures are subject to a special flood hazard area. She said that certain mitigation measures have been incorporated into the project design to deal with the shallow flooding question. She concluded that there is no new information or substantial evidence to warrant a review or another study. Jennifer Griffin said that flooding is an issue in that area and a number of times there was 2-3 feet of standing water at Stevens Creek Boulevard. She noted that Calabasas Creek has previously flooded the Fontaine Bleu Apartment complex, and residents have had to sandbag. She was concerned about the unresolved questions concerning the flow of Calabasas Creek, and that those questions are valid grounds for the reconsideration. Kilian opined about Mahoney's possible conflict, and said that the Fair Political Practices Commission (FPPC) said that he had no conflict of interest based on the fact that he was a contractor for a company that worked for Hewlett Packard (HP). He also had been a former employee, but had retired a few years before running for City Council. Mahoney didn't recuse himself based on the FPPC opinion. Goepfert said that Ms. Guerra is correct in saying that the property is not in a 100-year flood plain, and noted that the Cupertino Municipal Code doesn't require any specific protection. Kwok/Sandoval moved and seconded to adopt Resolution No. 06-098 denying the petition for reconsideration. The motion carried unanimously with Mahoney absent. 22. Consider Application Nos. U-2006-03, ASA-2006-05, and EA-2006-06, Timothy Reeves (Public Storage), 20565 Vallev Green Drive, APN: 326-10-044: a) Negative Declaration b) Use Permit and Architectural and Site Approval to demolish an existing 53,890 square foot, single-story storage building and construct a 155,253 square foot three-story storage building Community Development Director Steve Piasecki reviewed the staff report using a PowerPoint presentation. Applicant Timothy Reeves said that they have owned and operated the facility since 1982, and want to reinvest in the community. He said that the current buildings have no monitoring system, whereas the new product has fully contained, climate-controlled units with cameras installed. He said that they worked with staff to incorporate elements of the Pinn Brothers development next store. He noted that the company is a needed commodity in the community, many tenants are local businesses, and Public Storage contributes money to the schools. He said that charging an in-lieu fee wouldn't be fair. May 16, 2006 Cupertino City Council Page 9 Mike Carroll, land use attorney for Public Storage talked about the proposed in-lieu fee and the problems under case law and the Mitigation Fee Act. He noted that it's not fair to have the fee be assessed against this project only. Jennifer Griffin commended the developers for the aesthetics of this project. She said she was concerned about security and urged them to add another perimeter fence, and to keep a security presence. She commented that the scale of the buildings should be in keeping with the area. Council comments included: Public Storage would be taking too much of the tech park allocation; the applicant should work more with staff for a compromise and send it back through the Planning Commission; staff should send notification to an area greater than 1,000 feet; the developer should bring a new project with one story and 3-stories on the other side, as well as make the buildings attractive and keep them at 45- feet; set back the buildings facing residential; provide a better landscape plan; the trail access is good; the developes should meet with the Pinn Brothers; and the $2 in-lieu fee should not be included. Kwok/Sandoval moved and seconded to remove the item from the calendar and re-notice when it comes back. 23. Select deadline and interview dates for the Parks and Recreation Commission unscheduled vacancv. Deputy City Clerk Grace Schmidt explained that there had been only one applicant for the Parks and Recreation Commission. That person was not qualified to serve since his daughter was already a member of the Cupertino Teen Commission. She said that notice ofthe continuing vacancy would be posted again. Council concurred to set the application deadline for June 9 and to conduct interviews on June 20 at 5:30 p.m. Council directed staff to do a broader noticing of the vacancy and to add an agenda item for June 6 to re-evaluate the policy that Teen Commissioners cannot be related to officials or employees of the City. 24. Consider setting a studv session on June 6 at 5:30 p.m. regarding controlling the pace of private development applications. (No documentation in packet). Jennifer Griffin said that she attended the Planning Commission meeting regarding the owners of North Valleo and a lot of pertinent information came out of the meeting, including which schools would be served from that development, and she wasin favor of further study of this matter. Council concurred not to hold the study session. ORDINANCES May 16, 2006 Cupertino City Council Page 10 STAFF REPORTS 25. Receive a status report on General Fund Revenue and Expenditures. (No documentation in packet). Administrative Services Director Carol Atwood said that the trends are good. She noted that the City went from a projected revenue of $34.8 million to $35.6 million; picked up additional money from park dedication fees; reduced the projected net loss from $1.3 million to a negative $.5 million; increased expenditures but at a much lower rate and they are cost recovery expenditures; and the budget will be in the black by about a million dollars by year end. Piasecki commented that the General Plan is completed and on-line. Residents can also purchase the document in the form of notebooks or CD's. COUNCIL REPORTS Council members highlighted the activities of their committees and various community events. ADJOURNMENT At 11:23 p.m. the meeting was adjourned to Tuesdav. Mav 30 at 3:00 for Teen Commission interviews, City Hall Conference Room A, 10300 Torre A venue, Cupertino. ~~ Grace Schmidt, Deputy City Clerk 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.