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101-Draft minutes.pdf DRAFT MINUTES CUPERTINO CITY COUNCIL Regular Meeting Tuesday, January 4, 2011 PLEDGE OF ALLEGIANCE At 7:02 p.m. Mayor Gilbert Wong 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 Gilbert Wong, Vice-Mayor Mark Santoro, and Council members Barry Chang, Orrin Mahoney, and Kris Wang. Absent: none. CLOSED SESSION - None CEREMONIAL MATTERS – PRESENTATIONS 1. Subject: Proclamation to FIRST 5 for their important work in children’s health and well- being Discussion: Council members watched a brief video about FIRST 5, an agency created to support the healthy development of children prenatal to age 5, and to enrich the lives of their families and communities. Mr. Avo Makdessian, representing FIRST 5, reviewed a PowerPoint presentation and said that in 2007, there were 150,000 children in that age group County-wide. Over 4100 of those lived in Cupertino, and 81% of their families had an annual income of less than $300,000. He explained that $38.3 million had been invested in local nonprofits and municipalities to provide services to the local community. CHAC Program Director Maddi Pascua discussed the “learning together” initiative, to build relationships to the community, and the family resource center in Mountain View, which is a free community center where families can get resources. Cupertino Community Coordinator Nancy Doan talked about some of their upcoming events. More information was available at www.first5kids.org. Action: Mayor Gilbert Wong presented the proclamation POSTPONEMENTS - None January 4, 2011 Cupertino City Council Page 2 WRITTEN COMMUNICATIONS - None City Clerk Kimberly Smith distributed copies of the staff PowerPoint presentations for item Nos. 9-12. ORAL COMMUNICATIONS Paula Wallis said that although the Council did not pass the hoped-for resolution on December 21 regarding Lehigh’s East Materials Storage Area, the residents were grateful that Council agreed to send a letter to the County of Santa Clara. She noted a remark made by the mayor at that meeting, and asked if the public had a right to speak to the Council on agenda items, or whether that was a privilege granted to them by the Council. Rhoda Fry thanked the Council and City Manager for their letter to the County regarding Lehigh. She spoke about contamination of ground water going into Permanente Creek which goes straight to the San Francisco Bay. She shared a letter dated March 26, 2010 from the California Regional Water Quality Control Board regarding a violation notice to Lehigh Southwest Cement Company. She noted that David Knapp and Rick Kitson were copied on the letter, but no one from the County. She indicated that the reason no one from the County was copied on the March 26 letter or the notice posted in November was that the Water Quality Board represents nine counties in the Bay Area so they don’t report up to the county. She shared a hand drawn organization chart that shows everything funnels up to Jerry Brown and Barack Obama. She showed a map of Permanente Creek that leads straight into bay and also showed photos of drums of grease, effluent, and white water going straight into the creek which goes straight into the bay. City Attorney Carol Korade responded to Ms. Wallis’ question and explained that State law creates an obligation to give the public opportunity to speak to Council; however, it is the Mayor’s discretion to limit the amount of time allotted to each speaker, to set a limit on the number of speakers, or to determine at what point in the meeting the oral communications will be heard. CONSENT CALENDAR Mahoney moved and Wang seconded to approve the items on the Consent Calendar as recommended, with the exception of Item No. 2, which was pulled for discussion. Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Abstain: None. 3. Subject: Payroll for period ending December 22, 2010 Recommended Action: Adopt Resolution No. 11-002 4. Subject: Alcoholic Beverage License, Togo’s Sandwiches, 21267 Stevens Creek Boulevard, Suite 314 (Oaks Shopping Center) Recommended Action: Approve application for on sale beer January 4, 2011 Cupertino City Council Page 3 5. Subject: Alcoholic Beverage License, Flight Wine & Food, 20333 Stevens Creek Boulevard (Cafe Torre) Recommended Action: Approve application for On-Sale Beer and Wine for Bona Fide Public Eating Place 6. Subject: Alcoholic Beverage License, One Eyed Spirits, 19200 Stevens Creek Boulevard, Suite 200 Recommended Action: Approve application for Distilled Spirits Importer and Wholesaler 7. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Vivekanand Karnataki and Deepti Naik, 10122 Bret Avenue Recommended Action: Adopt Resolution No. 11-003 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 8. Subject: Municipal Improvements, Kelly Gordon Development Corp., 10231 Amelia Court Recommended Action: Accept Municipal Improvements Description: Municipal improvements include sidewalk, curb & gutter, driveway approach, paving and new utility services ITEMS REMOVED FROM THE CONSENT CALENDAR (above) 2. Subject: Accounts Payable for period ending December 17, 2010 Recommended Action: Adopt Resolution No. 11-001 Discussion: Council member Barry Chang asked for additional detail on payments to G. Bortolotto, Spencon Construction, and some handwritten notations. Administrative Services Director Carol Atwood said she would research these items and provide more information about the projects in question, and would also provide a copy of the city’s purchasing policy. Action: Chang moved and Wang seconded to approve the accounts payable item as presented. The motion carried unanimously. PUBLIC HEARINGS 9. Subject: Appeal of an approval of a wireless service facility on Results Way Recommended Action: Consider an appeal of the Planning Commission approval for a personal wireless service facility at the existing Results Way office park Description: Application Nos. U-2010-03, EXC-2010-04, TR-2010-31; Applicant: Scott Longhurst (AT&T); Appellants: Allen Wang, Grace Chen, Guo Jin; Address: Results Way (rear parking lot); APN: 357-20-042; Application Summary: 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 Discussion: Senior Planner Colin Jung reviewed the staff report and the history of the project’s approval and appeal hearings. He said that the owner had reviewed the alternate January 4, 2011 Cupertino City Council Page 4 sites suggested by the City Council, along with several facility design options, but still felt that the only feasible site was the proposal that was approved by the Planning Commission. Appellant Grace Chen reviewed a series of slides including a summary of the AT&T application. She pointed out discrepancies in the monopine height compared to the other trees in the area and she said it would not blend harmoniously with other trees in neighborhood because they are of smaller stature, about 20 feet high, and may not grow much taller. She mentioned Ordinance 09-2038 which amended the wireless facilities ordinance. Ms. Chen asked that the Council uphold the appeal and direct AT&T to consider other viable alternatives, such existing telephone poles, and to consider Ordinance 90-2038, amendments to Chapter 19.108 of the Wireless Communications Facilities of the Cupertino Municipal Code, of the Cupertino Municipal Code. Scott Longhurst, Trilliam Telecom (for AT&T Mobility), thanked the Council for their commitment and hard work on the project. He said that AT&T has shown good faith in working with City staff, the community, and elected officials to find a suitably zoned area for the facility. This project meets the zoning code and is compliant with development standards. He asked the Council to uphold Planning Commission’s recommendation, deny the appeal and let the project move forward. Rose Grymes spoke about the need to improve cell phone service in Cupertino because of an increasing demand for cell phone integrity and reliability. Andrew Wu spoke in opposition to the AT&T monopine. He underscored Ms. Chen’s presentation and the City should follow already-established guidelines. Xuena Xu said that, based on the current ordinance, the City should not allow the monopole be 75 feet high. Xiaowen Liu showed an overhead diagram of the site and said that the proposed location was too far north of the problem coverage area. She said she was not opposed to the tower, just its location. Mark Ma said that AT&T should consider changing the location of this monopine antenna to a completely different location. He referred to prior applications, which were denied, and said that this tower is taller than the previously denied versions. Leon Beauchmon, representing AT&T, said he would be retiring and his replacement would be Randy Okamura. Mr. Beauchmon said he had been working with the City for 5 years and they believed this was the best solution. Kevin McClelland, representing the Cupertino Chamber of Commerce, acknowledged that cell phone coverage in Cupertino was not as good as it could be. He requested that Council support Cupertino’s telecommunications infrastructure and deny the appeal. January 4, 2011 Cupertino City Council Page 5 Randy Okamura said he had been the External Affairs Manager in Palo Alto. He said he wished to respond to Mr. Wu’s comments and explain that he had worked on the Palo Alto monopine project. He had participated in the decision to withdraw the proposal, which was partly because they did not properly engage the community. He said they would be sure to follow through with community outreach in the future. Chris Ho, a resident of Astoria Townhomes, said he wanted improved coverage for AT&T users, but he didn’t like this proposal because it exceeds the height limit. He suggested bringing the antennae down to a lower height, and he asked Council to reject proposal. Mr. Longhurst talked about why the original location was still the only feasible location, and explained that the monopole height had to be increased from 55 feet to 75 feet in order to make up for the difference in grade, since the property sloped down in the back by 19 feet. Council members discussed methods to provide additional screening, such as mounding areas around the monopole to plant new trees, and add additional trees along the property line by the residences. Mr. Longhurst said that AT&T would agree to the suggestions for more screening trees, berms, and irrigation. He asked if there could be $75,000 dollar cap on the additional mitigation measures. Discussion followed about whether there were other alternate sites. City Attorney Carol Korade explained that a wireless provider must make an initial showing that the method it is proposing, to fill a significant gap in its service, is the least intrusive. The city is not compelled to accept the provided solution, but if it is rejected the city must show potentially available and technologically feasible alternatives. The provider must then have an opportunity to dispute the availability and feasibility of the alternatives favored by the city. Action: Mahoney moved and Santoro seconded to deny the appeal, required the conditions as recommended by the Planning Commission, and added the following conditions to the Planning Commission resolution: (1) Plant additional screening trees at the northern property line to screen the tree pole from the Astoria Townhome development; (2) Require berming and plant at least two 36” box, Coastal Redwoods (Blue Aptos variety) on the berm on either side of the monopole to screen it; (3) Improve irrigation around the trees to ensure proper growth; (4) Remove and replace trees with dead tops; (4) Adequately maintain and water the trees in the parking lot; (5) Require an annual status report on the trees by a certified arborist for three years from the date of the tree planting; (6) Require that tree planting conform with the approved development plans of the Results Way office park; and (7) Allow a monetary cap of $75,000 for the berming and tree planting required in the added conditions. January 4, 2011 Cupertino City Council Page 6 RECESS – Prior to the Council recess. City Manager David Knapp introduced Terry Calderone, Cupertino’s former Police Chief who had recently retired, and also introduced the city’s new Police Chief Carl Neusel. Captain Neusel said that it was an honor to be selected for the position and expressed his commitment to providing the highest level of law enforcement in Cupertino. The Council was in recess from 9:40 to 9:53 p.m. 10. Subject: Appeal of the Director's decision allowing a parking pad to be located at a duplex located at 967 Miller Avenue Description: Application: DIR-2010-30; Appellant: Erwin Wolf; Applicant: Linda Shen- Jung (GLSAA, LLC); Location: 965-967 Miller Avenue; APN: 369-19-052; Application Summary: Appeal of a Director’s Minor Modification decision to allow paving in the front yard of an existing duplex for the purpose of a parking stall at 965-967 Miller Avenue Senior Planner Colin Jung reviewed the staff report. Speakers representing the appellant, Erwin Wolf, were Michael and Cheryl Wolf. Michael Wolf expressed safety concerns for elderly tenants because visibility could be an issue if additional parking were added. He stated that there has been ample parking for 30 years. He also suggested that the property appearance could be compromised and impact marketability. Cheryl Wolf said there could be safety issues for emergency vehicles responding to an emergency with a vehicle extended to the sidewalk. The appellants said there was room for two or three cars on the street and that things are o.k. the way they are. The applicants Gordon Jung and Linda Shen-Jung said they submitted the application based on a request of their tenants (a husband, wife, and their son) who were having difficulty finding parking in their neighborhood. Mr. Jung said that everyone has passed a driver’s test and exercises caution by stopping at the sidewalk before going into the street. He did not see a driving safety issue and requested that the application be approved. The public hearing was closed at 10:25 p.m. Action: Mahoney moved and Wang seconded to deny the appeal of the Director’s decision with the following conditions. The motion carried unanimously. · The parking area shall be revised to incorporate the 41” pedestrian path immediately north, increasing the parking pad depth from 17 feet to approximately 20 feet; · The corner of the existing planting area immediately north of the proposed parking pad shall be rounded-off to further enhance the vehicle movement · No parked cars shall extend over any portion of the sidewalk, except as may be necessary to enter or leave the property. 11. Subject: Application for modification of an existing mixed-use development (M-2010-08) located at 19501-19507 Stevens Creek Boulevard (Metropolitan) Recommended Action: Consider a Modification (M-2010-08) to the Use Permit for the Metropolitan mixed-use development January 4, 2011 Cupertino City Council Page 7 Description: Applications: M-2010-03, EXC-2010-03, TM-2010-03 (EA-2010-04); Applicant: Jane Vaughan (Cupertino Housing Partners, LLC); Location: 19501, 19503, 19505, 19507 Stevens Creek Blvd (Metropolitan); APN: 316-49-111 and 316-49-112; Application Summary: Amendment (M-2010-08) to a Modification application (M-2010-03) of a previously-approved Use Permit (U-2003-04) to amend Condition No. 2 (Parking) to allow the parking requirements to be incorporated into an appropriate alternate legal document as deemed acceptable to the City Attorney and Director of Community Development in lieu of the covenants, conditions and restrictions (CC&Rs) Senior Planner Aki Honda reviewed the staff report. Applicant Jane Vaughan said she thought it had been clear that parking was controlled by an easement and not by CC&R’s, but that language was not corrected when this item was originally approved, so it was brought back before Council to make the correction to specify that the parking is controlled by easement. She reviewed the additional conditions recommended by the city attorney today and said she could not accept the condition to indemnify the city. Jenny Cheung said she purchased a unit and signed a contract on August 23, and the property closed on Oct 29. On December 10 she received a document from Menlo Equity and signed the additional documents because she thought it was part of the closing documentation. Ms. Cheung said she purchased this property because she was attracted to the downtown, park, hotel, and shopping district. When she purchased the property she was excited about the retail possibilities of the complex, but later discovered that some of the other buildings were going to be zoned for medical use. She said when she first learned of this change to the retain nature of the complex on December 14 when she saw the staff report. She felt that the City and Menlo Equities had an obligation to inform her of the change because it affected the value of her investment. Community Development Director Aarti Shrivastava said that the original retail modifications were made in October prior to the closing. When staff learned there was a new owner, she was invited to attend and became a co-applicant. City Attorney Carol Korade discussed some additional recommended conditions. The first is that the applicant shall provide evidence that the parking condition can be legally enforceable and is not contradictory to the CC&R’s. The second condition is that the applicant indemnify the City, since the City cannot be part of a private dispute. Ms. Vaughn said that the parking license agreement has been prepared by an attorney and a notice to acknowledge is going out to record the agreements with the properties. She said that she believes the agreement is consistent with easements and the CC&R’s. She also stated that to her knowledge they do not have any disputes with Ms. Cheung. Ms. Cheung’s property is remaining retail and she is having an attorney review the documents. January 4, 2011 Cupertino City Council Page 8 The Council members took a straw vote to determine which of them would require the City Attorney’s recommended conditions to be included if this application were approved. Council members Mahoney, Wang, and Santoro voted in favor of including the recommended conditions. Chang and Wong did not specify their intentions. Ms. Vaughan stated for the record that since the City of Cupertino would require the applicants to indemnify them, they would respectfully withdraw the application. 12. Subject: Planned Development Ordinance Recommended Action: Conduct the first reading of Ordinance No. 11-2073 Description: Application: MCA-2010-06; Applicant: City of Cupertino; Location: Citywide; Application Summary: Municipal Code Amendment to Chapter 19.48 (Planned Development) to be consistent with the 2010 Housing Element; "An Ordinance of the City Council of the City of Cupertino amending Chapter 19.48 (Planned Development) of the Cupertino Municipal Code to be consistent with the 2010 Housing Element" Action: The City Clerk read the title of the ordinance. Mahoney moved and Chang seconded to read the ordinance by title only, and that the City Clerk’s reading would constitute the first reading thereof. Ayes: Chang, Mahoney, Santoro, Wang and Wong. Noes: None. UNFINISHED BUSINESS - None RECESS – Council was in recess from 11:18 p.m. to 11:25 p.m. NEW BUSINESS 13. Subject: Council assignments for local and regional organizations and agencies Recommended Action: Select assignments Action: Mahoney moved and Santoro seconded to assign the committees as proposed by Mayor Wong, with the exception that on the Santa Clara Valley Transportation Authority, Council member Chang would be the primary representative and Council member Mahoney would be the alternate. The motion carried 3-2, with Kris Wang and Barry Chang voting no. Council member Chang said he felt that all positions should be rotated, and he wanted to serve as the primary representative on the Sister City Committee. Council member Wang had earlier spoken of her desire to serve on the Library Commission. ORDINANCES - None STAFF REPORTS - None COUNCIL REPORTS Council members highlighted the activities of their committees and various community events. January 4, 2011 Cupertino City Council Page 9 ADJOURNMENT At 12:03 p.m., the meeting was adjourned to Tuesday, January 18, 2011, at 3:00 p.m. ____________________________ Kimberly Smith, 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 click Archived Webcast. Videotapes are available at the Cupertino Library, or may be purchased from the Cupertino City Channel, 777-2364.