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CC 11-01-2010 r / CUPERTINO APPROVED MINUTES CUPERTINO CITY COUNCIL Regular Meeting Monday, November 1, 2010 ROLL CALL Present: Mayor Kris Wang, Vice -Mayor Gilbert Wong, and Council members Barry Chang, Orrin Mahoney, and Mark Santoro. Absent: none. CLOSED SESSION 1. Subject: Conference with real property negotiator (Gov't Code 54956.8); Property: 10800 Torre Avenue; Cupertino Negotiator: Terry Greene; Negotiating Parties: City of Cupertino & potential lessees per RFP Under negotiation: Lease - price and terms of payment (RFP). 2. Subject: Conference with legal counsel - existing litigation (Government Code 54956.9(a)). City of Cupertino v. Mansfield et al, Santa Clara County Superior Court (In re Mansfield, United States Bankruptcy Court). At 6:00 p.m., the City Council went into closed session, and reconvened in open session at 6:55 p.m. Mayor Wang reported that the City Council gave instructions to real property negotiators and took no action on item No. 1, and received an update briefing and gave settlement instructions to legal counsel on item No. 2. PLEDGE OF ALLEGIANCE At 6:55 p.m. Mayor Kris Wang called the regular meeting to order in the Council Chamber, 10350 Torre Avenue, Cupertino, California, and led the Pledge of Allegiance. ROLL CALL Present: Mayor Kris Wang, Vice -Mayor Gilbert Wong, and Council members Barry Chang, Orrin Mahoney, and Mark Santoro. Absent: none. November 1, 2010 Cupertino City Council Page 2 CEREMONIAL MATTERS — PRESENTATIONS 3. Subject: Proclamation recognizing David Knapp's ten years of service to the City of Cupertino. Action: Mayor Wang presented the proclamation. 4. Subject: Proclamation recognizing World Polio Day in Cupertino. Action: Mayor Wang presented the proclamation. POSTPONEMENTS - None WRITTEN COMMUNICATIONS Deputy City Clerk Grace Schmidt distributed the following written communications: • Memo from Director of Public Works Ralph Qualls to City Council (Item No. 22) • Amended Attachment J (Item No. 26) • Letter of support from Cupertino Chamber of Commerce President Lynn Ching (Item No. 26) ORAL COMMUNICATIONS Ann Stevenson, representing the Library Commission, reported on the latest statistics for September: 497 new cards, 80,947 visitors, and total circulation of 269,559, which is up 9% from a year ago. She announced that there will be a science contest for middle school students in March 2011 sponsored by the Cupertino Library, Cupertino Library Foundation, the Rotary Club, and the Cupertino Elementary Foundation. She also reported that the Teen Room grand opening was a great success and thanked all the donors. The Radio Frequency Identification (RFID) project is completed so 5 items can now be checked out simultaneously. Friends of the Library held a successful and efficiently run book sale. She also noted that the Library is supporting Council to address the parking congestion problem. Lin Jiang talked about his neighborhood in Montt Vista that had many non - conforming fences. He said that most of the streets have no sidewalks or curbs; there is lack of public improvements, run -down houses, and security problem with kids walking to and from school. He asked that all existing non - conforming fences and gates be permitted to remain, asked he Council to provide funds to solve street flooding problems, to build curbs and sidewalks, and to improve the roads. He also asked to have a public hearing held on the fence ordinance. Ruby Elbogen talked about the street trees on Stevens Creek and Torre that are tagged for possible destruction because they are diseased. She asked Council to find a better method than one staff person to decide the fate of these trees, especially ones noted in the Heart of the City Specific Plan, and to notify the public before these things happen. She asked Council for an explanation regarding these particular trees. November 1, 2010 Cupertino City Council Page 3 Redevelopment and Economic Development Manager Kelly Kline explained that the Community Development Director had not yet made a decision on the tree application, but would do so by next week. Donna Austin also talked about the trees on Stevens Creek that were marked for destruction. She wondered if the need for visibility was the cause for destruction of the trees. Council member Santoro clarified that the Council didn't initiate anything but rather a new property owner made a proposal to the City to remove some trees. He explained the process of the Community Development Director making a decision on the proposal and noted that anyone could appeal it within 14 days after the decision. He also noted that the trees are not marked for destruction, but only to identify which ones the applicant is proposing to remove and /or replace. Joy Barrett complained about Lehigh polluting the air with mercury and other chemicals and she wanted to know why nothing has been done about it. She said Cupertino should pressure the County to be more stringent. Public and Environmental Affairs Director Rick Kitson responded that residents can find information on the website (www.cupertino.org /lehigh) such as documentation, videos of City study sessions on Lehigh, notices of violation, some of Lehigh's responses, and many communications from the regulatory agencies. They noted that many agencies are involved and are doing their part. Patricia Rod echoed what Ms. Barrett said. She asked Council to not take such a passive approach and make more of a firm stand to prevent Lehigh from extending their 20 -year license to operate and prevent them from building the pit they are planning. Council member Chang explained the permit process by two regulatory agencies noting that the Title 5 permit is controlled by the Bay Area Air Quality Management District (BAAQMD) and good for 5 years, and the mining permit is controlled by the County Board of Supervisors and is good for 20 years. Mayor Wang said the City has had two study sessions, sent two letters out to the public, and established an air monitoring station in the Monta Vista area that is still collecting data. Patrick Ho also talked about Lehigh and said the current City Council has done a good job looking out after residents but agreed with Ms. Rod that not enough has been done. He asked Council to take a position that they are for the Cupertino residents and opposed to the new development, and to send someone to the County and the State to represent the City. CONSENT CALENDAR Mahoney moved and Wong seconded to approve the items on the Consent Calendar as recommended, with the exception of Item No. 22 which was pulled for discussion. Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Abstain: None. November 1, 2010 Cupertino City Council Page 4 5. Subject: September 21, October 5, and October 12 City Council minutes Recommended Action: Approve minutes 6. Subject: Payroll for period ending October 1, 2010 Recommended Action: Adopt Resolution No. 10 -190 7. Subject: Accounts Payable for period ending October 1, 2010 Recommended Action: Adopt Resolution No. 10 -191 8. Subject: Accounts Payable for period ending October 8, 2010 Recommended Action: Adopt Resolution No. 10 -192 9. Subject: Payroll for period ending October 15, 2010 Recommended Action: Adopt Resolution No. 10 -193 10. Subject: Accounts Payable for period ending October 15, 2010 Recommended Action: Adopt Resolution No. 10 -194 11. Subject: Accounts Payable for period ending October 22, 2010 Recommended Action: Adopt Resolution No. 10 -195 12. Subject: Quitclaim Deed for the Grant of Real Property from the Fremont Union High School District of Santa Clara County to the City of Cupertino located at the Mary Avenue Bicycle Footbridge. Recommended Action: Adopt Resolution No. 10 -196 13. Subject: Partial Quitclaim of Easement by Pacific Bell Telephone Company to the City of Cupertino located at the Mary Avenue Bicycle Footbridge. Recommended Action: Adopt Resolution No. 10 -197 14. Subject: Quitclaim Deed and Authorization for Underground Water Rights, 10160 Lockwood Drive. Recommended Action: Adopt Resolution No. 10 -198 Description: The property owners of this residential development agree to grant to the City the right to extract water from the basin under the overlying property. 15. Subject: Quitclaim Deed and Authorization for Underground Water Rights, 10375 S. Tantau Avenue. Recommended Action: Adopt Resolution No. 10 -199 Description: The property owner of this residential development agrees to grant to the City the right to extract water from the basin under the overlying property. 16. Subject: Quitclaim Deed and Authorization for Underground Water Rights, 790 South Blaney Avenue. Recommended Action: Adopt Resolution No. 10 -200 November 1, 2010 Cupertino City Council Page 5 Description: The property owner of this residential development agrees to grant to the City the right to extract water from the basin under the overlying property. 17. Subject: Development Agreement, 790 South Blaney Avenue. Recommended Action: Adopt Resolution No. 10 -201 Description: The property owner of this residential development has agreed to construct improvements within the public right of way, which include street widening, construction of curb, gutter and sidewalk, and street light power undergrounding, as conditions of approval for the subdivision. 18. Subject: Final Tract Map, 790 South Blaney Avenue. Recommended Action: Adopt Resolution No. 10 -202 Description: A resolution approving a Tract Map that subdivides an approximately 41,800 square foot parcel into five parcels ranging from 6,410 to 8,710 square feet in area. 19. Subject: Stormwater Management Facilities Operation and Maintenance Agreement, 790 South Blaney Avenue. Recommended Action: Adopt Resolution No. 10 -203 Description: The property owner of this residential development will be required to operate and maintain stormwater management facilities in accordance with the approved Stormwater Management Plan, to minimize adverse impacts due to changes in storm and surface water flow conditions. 20. Subject: Stormwater Management Facility Easement Agreement, 790 South Blaney Avenue. Recommended Action: Adopt Resolution No. 10 -204 Description: The property owner of this residential development will be required to grant ingress and egress rights to the City for the purpose of inspecting stormwater management facilities installed in accordance with the approved Stormwater Management Plan. 21. Subject: City Project, 2009 Tennis Court Re- Surfacing Project. Recommended Action: Accept Project No. 2009 -07. Description: The work consisted of the mitigation of existing cracks, resurfacing of play areas and re- striping of play lines on a total of 28 tennis courts. 22. Subject: Authorize application for grant funding for Stevens Creek Corridor, Phase 2. Recommended Action: Adopt Resolution No. 10 -205, authorizing the application for grant funds from the Environmental Enhancement and Mitigation Program for Stevens Creek Corridor Phase 2, project 9136. Written communication for this item included a memo from Director of Public Works Ralph Qualls to City Council. November 1, 2010 Cupertino City Council Page 6 Mr. Qualls clarified that Council should adopt the resolution with the understanding that the City Council has the final approval for the scope of the project before the grant agreement is executed. 23. Subject: Receive City Manager's Annual Report 2009 -2010 Recommended Action: Receive report ITEMS REMOVED FROM THE CONSENT CALENDAR (above) 24. Subject: Consider Parks and Recreation Commission Work Plan for Fiscal Year 2010- 2011 Recommended Action: Approve the 2010 -2011 Parks and Recreation Commission Work Plan. Discussion: Parks and Recreation Commissioner Darcy Paul talked about the work plan and other informational items as noted in the staff report. He answered questions from Council. Action: Wong moved and Mahoney seconded to approve the work plan. The motion carried unanimously. PUBLIC HEARINGS 25. Subject: Modifications to Use Permit U- 2008 -02 for an approved hotel by the Shashi Corporation Recommended Action: Consider approval of modifications to a previously approved Use Permit (U- 2008 -02) to reduce the amount of parking spaces including reductions (size and scope) in the restaurant/bar and conference areas, and eliminate the green building requirement for an approved 138 -room hotel. Description: Application No: M- 2010 -07; Applicant: Dipesh Gupta (Shashi Corporation); Address: 10165 N De Anza Blvd. APN: 326 -34 -057 Discussion: Senior Planner Colin Jung reviewed the staff report and Council asked questions of staff. The applicant made a PowerPoint presentation noting that the look and feel of the hotel would remain unchanged and they are only requesting a change to the size of the restaurant and meeting space, in addition to asking Council to waive the requirement for silver LEED application. He noted that the parking study showed a requirement of .70 parking spaces per room and they are proposing .60 parking on -site with the rest to be made up with valet parking, if necessary, and with on- street parking. This would bring the parking up to .72 (approximately 100 spaces), which exceeds the requirement. Council recessed from 8:47 p.m. to 8:54 p.m. to address technical difficulties during the applicant's presentation. November 1, 2010 Cupertino City Council Page 7 At 9:30 p.m. Mayor Wang opened the public hearing. Jennifer Griffin said that the site is a good location for a high class hotel and close to the restaurants in the area. She wanted to make sure parking in Cupertino isn't compromised and to keep all parking on -site. She said she was concerned about the reduction of banquet space but was glad to see the hotel would be high class. Robert McKibbin said that every development in the last 10 years has had inadequate parking in Cupertino. He said he was concerned about valet parking and using adjacent land for employees to park. He urged Council to go to .9 parking spaces as was required for other hotels in the area. Steve Scharf said that it sets a bad precedent to reduce the parking and urged Council to keep the parking as was approved a year ago. He said he was unhappy that the hotel would be just another business class hotel without a restaurant. The public hearing was closed at 9:40 p.m. Council asked questions about the public art requirement. City Attorney Carol Korade explained that there is no way to waive the requirement but that there may be flexibility in working with the Fine Arts Commission to discuss what art would be. She noted that if art wasn't feasible, the applicant could apply to Fine Arts Commission for in -lieu application, but that is discouraged. Council also discussed the parking requirement ratio. Action: Mahoney moved to modify use permit U- 2008 -02 to incorporate an alternative plan to keep the same number of rooms, reduce the amenity space, reduce the parking ratio to .75 requiring valet parking, and to review the parking plan after one and two years of operation. Wong seconded. The motion carried with Chang voting no. Council recessed from 10:14 p.m. to 10:17 p.m. 26. Subject: Appeal of an approval of a wireless service facility on Results Way Recommended Action: Consider an appeal of a Planning Commission approval for a personal wireless service facility consisting of twelve panel antennas to be mounted on a 74 foot tall monopine and associated base equipment to be located at the existing Results Way office park Description: Application Nos: U- 2010 -03, EXC- 2010 -04, TR- 2010 -31; Applicant: Dave Yocke (AT &T); Address: Results Way (rear parking lot) APN: 357 -20 -042 Written communication for this item included an amended Attachment J and a letter of support from the Cupertino Chamber of Commerce President Lynn Ching. Discussion: Senior Planner Colin Jung reviewed the staff report. November 1, 2010 Cupertino City Council Page 8 The appellants made a PowerPoint presentation regarding their appeal as noted in the staff report. At 11:10 p.m. Mayor Wang opened the public hearing. Zvi Ashkemazi said he was in favor of the wireless service facility because it's important for people to not just be able to use their phones to talk on, but to also be able to connect to businesses in the area and get information across the airways. The following individuals spoke in opposition to the wireless service facility: • Xuena Xu • Amy Xiao • Agnes Fu • Huang Shang • Cid Pereira • Bo Choy • Andre Chiu • Wen Chen • Xiaowne Liu • Jeannie Kimura • Ramani Narayan • Mark Ma • Vikas Salherhra • Andrew Wu • Ken Young • Sherry Hsu • Chris Ho Their comments included: • The monopine is too tall for the area • It is located too close to a residential area and a school • There is a flaw in the application • The area is a bad location, the applicants should find a different one, perhaps adding to an existing tower at De Anza College • The monopine would be visually intrusive, and artificial trees look ugly • This application is premature, and is inconsistent with the ordinance, and it violates the Wireless Master Plan policies • There is not enough data • Who will benefit from the facility • The coverage will still not be enough • This will be a hub for all the other companies to build their towers At 11:55 p.m. the public hearing was closed. Leon Beauchman from AT &T said the tower application came about as a result of customer demand and the Monta Vista area was the number one area noted from the survey. He explained that they have been working for five years to come up with a solution and it's not a quick fix. Scott Longhurst from Trillium Companies representing AT &T noted that this has been a collaborative effort with staff and the Technology, Information, and Communications Commission (TICC). He noted that the area focus was that around Monta Vista High School which was shown to be substandard from the TICC report. November 1, 2010 Cupertino City Council Page 9 Peter Friedland from the TICC gave a brief history of the survey of cell coverage in Cupertino done three and a half years ago. He noted the key findings: 65% of Cupertino citizens thought cell coverage was inadequate; three areas were identified as having poor coverage including Bubb at Mcclellan, Foothill Blvd., and Apple. He said that the TICC worked with staff and the Planning Commission, talked with the different carriers, and proposed an ordinance change around cell towers to include hillside areas and parks. The ordinance changes were approved. He said that the TICC and staff have worked the past three years with AT &T to find a place for a tower in Cupertino. He noted that the Sheriff and Fire Departments also expressed a desire to fix the coverage issue. Council asked questions of staff, the applicant, and the RF (radio frequency) engineer from AT &T. Rashid, the RF Engineer from AT &T, responded to a question about the coverage map and said that the map the appellants were showing is an old one that showed a 2G network. He explained that since the iPhone, the network works on 3G. Mark Newman from Hammett & Edison, Inc. Consulting Engineers, who prepared the RF exposure analysis for the site, answered a question from Council regarding near and far field calculations. He said that for this particular antenna it would be in the 20 -30 foot range directly in front of the antennae. The property owner from Embarcadero Property responded to a question from Council during a discussion on another location for the antennae, and he showed on a map where a new development is being planned on the property. Action: Mahoney moved and Santoro seconded to deny the appeal of the Planning Commission approval with the adjustment that the decision on the trees is left up to the Planning Director, but should be at least a 36 -inch box of the fastest growing redwood variety with good irrigation to provide maximum growth, and monitoring. The motion failed with Chang, Wang, and Wong voting no. Council went into closed session at 1:47 a.m. regarding Significant Exposure to Litigation pursuant to subdivision (b) of GC Section 5495.9. Council came back into open session at 2 05 a.m. and the City Attorney announced that Council received legal advice on the standards for approving or denying this particular appeal and the requirements of Federal law. Chang moved to uphold the appeal. The motion died for lack of a second. Mahoney moved and Wong seconded to continue the item and send it back to the Planning Commission to discuss the feasibility of another alternative near Site 4 and to bring the results back to Council. The motion carried with Chang and Santoro voting no. November 1, 2010 Cupertino City Council Page 10 City Attorney Carol Korade explained that Council is keeping this application on the table and remanding it back to the Planning Commission to see if there is a feasible way to deal with the gap in coverage that is less intrusive, for example within the height limit, and then have the original application and the alternative brought back to Council for a decision. The applicant and Mr. Beauchman from AT &T asked some procedural questions. The City Attorney clarified that the applicant does not have to start all over again. Council has listened to the appellants concern and the appeal is on- going, but the Council is trying to find an alternative location to address the concerns. The hearing will be continued and will be brought back to ,Council for a final decision. She noted that this is in interim step and the Planning Commission will notice and hear the consideration of an alternative location and bring a recommendation back to Council. She also noted that a time limit does not apply in this case. The appellants said that they are found the iprocess acceptable. The property owner noted his concern that if the alternative site is near the front of his property than it would need to be visually appealing. UNFINISHED BUSINESS - None NEW BUSINESS 27. Subject: Consider scheduling a Study Session on current Capital Improvements Program Proj ects. Recommended Action: Schedule a study session for November 16, 2010 at 5:00 pm. Discussion: City Manager David Knapp reviewed the staff report. Action: Wong moved and Santoro seconded to hold a study session on Dec. 21. Mahoney added a friendly amendment to cancel the Dec. 21 meeting if the study session is the only item on the agenda. After further discussion, Wong withdrew his motion and Council concurred to have a report come to them in the weekly Items of Interest. ORDINANCES 28. Subject: Amend the Cupertino Municipal Code to revise and re -title the existing Franchise Ordinance to be consistent with the new waste management and recycling Recology Franchise Agreement. Recommended Action: Conduct second reading of Ordinance Nos. 10 -2069 and 10- 2070. Description: a. An Ordinance of the City Council of the City of Cupertino Amending Chapter 6.24 of the Cupertino Municipal Code to revise and re -title the existing Franchise Ordinance, Garbage —Los Altos Garbage Company, as Garbage and Recycling Collection • November 1, 2010 Cupertino City Council Page 11 and Disposal to reflect the city's updated waste management and recycling programs and to provide terminology consistent with the new Franchise Agreement with Recology; b. An Ordinance of the City Council of the City Of Cupertino amending Chapter 16.72 of the Cupertino Municipal Code clarifying and updating the requirements for construction and demolition debris recycling to ensure consistency with amendments to Chapter 6.24 and the new Recology Franchise Agreement. Discussion: The Deputy City Clerk read the titles of the ordinances. Action: Wong moved and Chang seconded to read the ordinances by title only and that the City Clerk's reading would constitute the second reading thereof. Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Wong moved and Chang seconded to enact Ordinance Nos. 10 -2069 and 10 -2070. Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. STAFF REPORTS 29. Subject: Report on the status of the Solar Power Purchase Agreement (SPPA) project. Recommended Action: Receive report and provide direction to staff. Description: The SPPA will allow the construction and purchase of renewable energy from carport photovoltaic arrays at City Hall, Corporation Yard, and the Quinlan Community Center. Council concurred to continue this item to Nov. 16. COUNCIL REPORTS Council members highlighted the activities of their committees and various community events. ADJOURNMENT At 2:40 a.m. on Tuesday, November 2, the meeting was adjourned in honor of Linda Walker, former Senior Citizens' commissioner. It Lt Grace Schmidt, Deputy City Clerk Staff reports, backup materials, and items distributed at the City Council 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 & Minutes, then click on the appropriate Packet. Most Council meetings are shown live on Comcast Channel 26 and AT &T U -verse Channel 99 and are available at your convenience at www.cupertino.org. Click on Agendas & Minutes, then November 1, 2010 Cupertino City Council Page 12 click Archived Webcast. Videotapes are available at the Cupertino Library, or may be purchased from the Cupertino City Channel, 777 -2364.