112-K. Minutes of the October 12 Planning Commission meeting.pdfCupertino Planning Commission 13
ATTACHMENT K
October 12, 2010
Motion: Motion by Com. Miller, to approve Application M-2010-02 per the model
resolution with the following additions/corrections: (1) Add the uses that Chair
Brophy suggested to be eliminated; (2) The suggestion by Com. Giefer to limit
any other uses to the Stevens Creek side other than the two present today; (3)
That no alcohol be served after 1:30 a.m.
Mr. Tahere:
• Said he did not object to excluding the side with Coldwell Banker because of the neighbors'
concern; but he did not favor the condition that they follow along Stevens Creels Boulevard
because what they are concerned about is only that part of Coldwell Banker.
Com. Kaneda:
• Suggested they add a condition that requires acoustical analysis; if they put in something
facing the apartments and it is designed correctly, there shouldn't be an issue.
• The bigger issue is not which direction it is facing, it is making sure that you are not going to
spill the noise out, and the way to do that is to face everything so the noise is going in the other
direction. They could also be told to design a building or design an interior that doesn't let the
noise spill out everywhere.
Com. Miller:
• Following discussion with the applicant, he agreed that 1:30 a.m. would be the time to stop
serving alcohol to patrons, with the patrons leaving by closing at 2:00 a.m.
• No entertainment will be permitted in the building that faces Mary Avenue.
Aarti Shrivastava:
• Summarized discussion, to approve M-2010-02 according to the model resolution, with the
following corrections: no night clubs, pool halls, billiard halls, arcades; other than the two uses
Sabatini and the theater, no new entertainment uses in the 600 and 700 number building along
Mary Avenue, and no alcohol served after 1:30 a.m.
Motion was seconded by Com. Kaneda and unanimously carried 5-0-0.
Chair Brophy declared a recess.
3. MCA-2010-04 Municipal Code Amendment to adopt a Green Building
City of Cupertino Ordinance. Postponed from the September 28, 2010
Citywide Location Planning Commission meeting; Tentative City Council
Date: December 7, 2010
Aki Honda Snelling, Senior Planner, presented the staff report:
• Reviewed the application for Municipal Code Amendment to adopt a Green Building
Ordinance, which will create a new chapter of the zoning ordinance, as outlined in staff report.
• The goals of the ordinance will be to promote green building practices through design,
construction and maintenance of new buildings and also existing buildings undergoing
renovation, and would apply to new private development including homes and commercial and
industrial property.
• In January 2010, City Council authorized staff to initiate the public input process to draft the
Green Building Ordinance and also to use the Phase II recommendations by the Santa Clara
County Cities Association. In May of 2010 a community outreach process was initiated by the
city and the city began seeking interested parties to participate in the focus groups. There was
an overwhelming response, with two focus group meetings in June and July, and there were
Cupertino Planning Commission 14 October 12, 2010
helpful suggestions to incorporate into the draft ordinance. The Planning Commission also
held a Green Building educational workshop to provide additional information to the focus
group members to get more information on LEED, green point rated (GPR) and also the Cal
Green Building Code.
• The draft Green Building Ordinance contains several components, one of which is the scope
and applicability of the ordinance which clarifies that this ordinance will generally apply to
private development projects, including new construction of single family and multi -family
residential new construction projects and also non-residential including commercial and
industrial projects over 10,000 sq. ft.
• The ordinance would also apply to remodeling and additions including single family
remodeling and additions equal to or greater than 50% of the total existing floor area of single
family residences and also would apply to minor and major renovations for multi -family and
non-residential commercial and industrial additions and remodeling as well.
• The ordinance would also apply to mixed use projects where the individual development types
would require such compliance. Public buildings would be excluded from this ordinance since
most cities address these in separate ordinances and also Cupertino has also adopted a Phase I
Santa Clara County Cities Association recommendation which already required that new
public buildings over 5,000 square feet be built to meet LEED silver standards.
• The draft Green Building regulations would apply to projects that submit for building permit
on or after the effective date of the ordinance, and staff is recommending that the effective date
of the ordinance begin 6 months from the date of the ordinance adoption, which allows for a
six months grace period. Any building permit applications coming in within the six month
grace period time would not be subject to the requirements unless they were otherwise
conditioned by that specific development permit. The grace period would also provide time
for the city to disseminate information about the ordinance to residents and businesses.
• Staff would like to make it clear that demolition permits would not qualify as a building
permit. Staff has also included some options for the Planning Commission which is to consider
whether to exclude previously approved Planning projects granted prior to the effective date of
the ordinance and also to consider allowing exemption from the ordinance for those projects
that receive Planning entitlement before the effective date of the ordinance and only for that
duration that the planning permit is valid.
• She reviewed the Reference Standards and Comparison Table of Phase II and Cupertino Draft
Green Building Ordinance New Construction and Addition/Renovation as outlined in the staff
report. She also reviewed the two options that staff is asking the Planning Commission to look
at, as detailed in the staff report.
• She reviewed the pros and cons of the verification options; fees and deposits; and exceptions,
as outlined in the staff report.
• She reviewed LEED EBOM (LEED for Existing Buildings: Operations and Maintenance)
which is a certification project type based upon the actual total building operating
performance, as outlined in the staff report.
• Staff recommends that the Planning Commission recommend that the City Council adopt the
proposed draft ordinance, in accordance with the model ordinance with any changes
recommended.
Walker Wells, Consultant, Global Green:
• The Climate Action Plan: Ideally what you would have is operational data from the buildings,
that is the gold standard; you know exactly how much energy, electricity, gas, water, waste
was generated from the building as operated. When you do formal certification, you get a little
bit closer to that gold standard because you are looking more at the building as it is completed
with construction, and then the city verification is going upstream one level further because we
are looking at the building at the building permit stage, so we are looking at is as designed.
Cupertino Planning Commission 15 October 12, 2010
You could still make projections off the drawings on the energy analysis at the building permit
level, but they would be a lesser degree of confidence in those than what you would have
based on the final building. That would still be a projection and the only way to actually know
for sure would be to require every building that is permitted in Cupertino to do some kind of
reporting through Energy Star Portfolio Manager for example. It doesn't mean you can't make
projections on the Climate Action Plan, they are just going to be a bigger band of uncertainty
in reporting those.
• Reviewed a slide presentation on what the State requirements are for green building.
• Relative to climate change, the State requires nothing to be done; cities are encouraged to
adopt climate action plans and do the accounting but are not regulated to do it. Cal Green goes
into effect on January 1, 2011, it addresses planning, energy, water, material conservation,
environmental quality.
• The State is saying that all the green building things that you have been talking about for years,
we have decided those are good ideas that should become part of the code; let's codify as
many for them that are cost effective and broadly acceptable.
• The information in the slide presentation summarizes that at the mandatory level Cal Green is
not equivalent to either LEED or GPR; there are complicated optional tiers in Cal Green that
not many cities are interested in; but the analysis shows that a commercial building would need
to be all the way in the Tier 2 optional level to be considered analogist to LEED; and a
residential building would need to be at the Tier 1 level to be analogous to GPR.
Aarti Shrivastava:
• A requirement will be that the drawings be prepared by somebody who understands LEED,
doing a peer review, not designing the building for them; and also be certain they understand
the points that they are shooting for in the planning stage, because many times when you
design the location and the way it is facing, makes a difference as to what points you can get.
The process should start early to prevent huge problems at the building permit stage.
Com. Kaneda:
• Relative to the six month grace period, in the past two years many of the projects that have
come before the Planning Commission were conditioned to be LEED silver or similar, and in
some cases over the concerns of fellow commissioners who are saying they are not
comfortable with this because it is done on a case -by -case basis, there was no policy in place.
Now that they are looking to have a policy in place, they are reverting back and telling the
people who came before, that they have to do it; but the people who are just coming up now,
have six months before they have to do it. He said it seems futile that before they were telling
people that they wanted them to do it, and now they are being told it is going to take six month
and they have to figure it out.
Aarti Shrivastava:
• Said it was only an option, it is up to the Planning Commission and City Council to determine
why they used the six months; because people are being told there is a Green Building
Ordinance coming down the line, but they don't yet know what the rules are. Staff felt as
people are planning for their projects, it would be difficult to hit them with it right after
adoption because that's when they know what the rules are.
• Staff felt that a six month lead time would be ample time for a person to do their homework on
building a house or building. Most people who are building non-residential buildings are
aware of it because they have gone through some type of planning process.
Cupertino Planning Commission 16 October 12, 2010
Walker Wells:
• Relative to the additional cost to build green buildings, the general understanding is that while
there doesn't have to be additional cost in making a green building, there often is, because the
result is a better product, things work better and are put together better, cost more money, often
because they are delivering a stream of benefits over the time of their use. Green building
would be delivering these benefits of reduced utility costs, better living and working
environment, more durable building. In terms of the cost, there are three different studies that
have each looked at over 100 buildings and found that the cost on average, is about 2%
increase in construction costs, the capital cost of construction; and the range would be from 0
to 5; this is looking at buildings from the certified to the gold level. Once you get to platinum,
all bets are off because you don't know which strategies somebody is going to take or how
exotic it will be. That gives a sense of the burden that could be placed on applicants. In terms
of keeping that toward the lower end of the spectrum of 0 to 5, the idea is always to start early
and make green part of the building; it is cheaper than adding it at the end such as solar panels.
• The soft costs include consultants, either someone with an architectural design firm or a
consultant to keep track of all of this information and have it ready to present to the city or US
Green Building Council, in the range of $15K to $25K in additional staff time. There is also
additional energy modeling, it is done sooner and iteratively and more thoroughly, adding
another $15K to $20K; for LEED there is commissioning cost; some of those now become
code with Cal Green, that could be another $25K to $50K.
• The cost for gaining formal LEED certification for most buildings is about $100K minimum.
For a multi -family apartment building around $50K, and a house around $5K. This provides a
sense of the soft cost, the extra people who need to be retained to make things happen.
• Relative to the number of points, the GPR is structured as a rating system developed by Build
It Green, an Oakland based, non-profit, and you either are or are not green point rated, so they
set a minimum threshold of 50 points out of the nearly 300 point options they have. What they
do that some feel is overly accommodating is they give points for meeting the prerequisite;
they have a prerequisite of 15% better energy performance, improvement above California
Energy Code; and two points in their system for every percent that you are better than Title 24
energy codes. By being 15% better than code, you get 30 of the 50 points needed. They have
50% construction and demolition waste recycling as a prerequisite, but you get points for
doing more. It is easy to get those 50 points, that is why most of the cities have decided to set
a point threshold that is higher than the 50 point minimum. Cupertino has followed suit. The
reason there is a distinction between the smaller single family and multi -family is that in the
GPR system, you do get points for density and there is some built in benefit to a more dense
project with smaller unit sizes; it would help them get towards that 100 point level. There are
also some benefits in being close to transit which is not for sure, but more likely with multi-
family.
Com. Kaneda:
• Under commercial construction in the SCCA Phase II recommendations, the recommendation
was LEED silver for buildings over 25,000 sq. ft. and in Cupertino relaxing that to 50,000 sq.
ft. He said San Jose is staying at 25,000 and discussing lowering it below 25,000. He said he
had concerns about 50,000 sq. ft. in Cupertino, the only projects they would require to be
LEED silver are major developments and his feeling is that LEED certified is not much of a
requirement.
Walker Wells:
• One of the ingredients was looking at these costs relative to the costs of the building; the
construction cost is 2%, the average increment would go up or down based on how many
square feet of construction; roughly $100,000 that you need to go through the LEED process,
Cupertino Planning Commission 17 . October 12, 2010
is a fixed number. It is paid whether it is a 5,000 sq. ft. building or a 50,000 sq. ft. building, so
there is some sense of the cost of the certification relative to the cost of construction and to
have it not be too onerous. He said they ended up with a 1 % cost and thought that increasing it
beyond that may be too much of a burden. That was part of the rationale.
Corn. Kaneda:
• Relative to the commercial renovation category, the idea of selecting three of the four systems
if doing a major renovation, HVAC building envelope, hot water or lighting; in the SCCCA
Phase II recommendations, the requirement was 2 of the 4 systems plus HVAC.
• He said he was involved in the discussions at the Cities Association and the thought behind
that was that a big part of when going for the LEED certification relating to energy, it is almost
impossible to get those energy points without the HVAC; if you do a major renovation but
don't touch the HVAC, it is really hard to get the points you are going to need because there is
very little you can do on the energy side.
Walker Wells:
• Said they spent a great deal of time working on how to structure it so it would be fair. If the
requirement was imposed on someone, they would be able to achieve it given the extent of the
scope of their project and remodel. Another way to organize it is to say for projects that are
modifying or replacing HVAC, it is that plus one of the other two things instead of three of the
four. He said it could be a suggestion for an amendment, and the Planning Commission may
want to formally propose.
Walker Wells discussed LEED EBOM:
• Said they have had many discussions about how to make sure the ordinance would address
remodels and tenant improvements given an understanding and looking back at permit history
and seeing what comes in over the counter, and understanding that's a lot of what gets done in
the city.
• There aren't many new buildings being built either residential or commercial, and certainly not
now in the present real estate development climate. In considering this, they came up with the
issue discussed, of how to define a project of sufficient scope, and is it HVAC and domestic
hot water, etc., but the new idea emerged of saying, why not give people the option of taking
the entire building through the LEED Existing Buildings: Operations and Maintenance
program proactively; and that would be a strategy through which they would then not be
required to bring every individual small tenant improvement to the city for certification.
• It would seem like it would be cost effective and time efficient on the part of the applicants;
and it may get a bigger impact quicker by giving people that option because they may decide
to take the whole building through the process ahead of time, instead of the nickel and dime
strategy over time. He said he felt it was exciting, and innovative, and a breakthrough in the
ordinances that has come out of the process in Cupertino.
Com. Kaneda:
• Said the EBOM program was worth further discussion.
Walker Wells:
• Relative to the degree of difficulty of going from GPR 50 points to GPR 75 points, he said it
was not difficult; the easiest strategy would be to improve energy performance beyond the
15% better in Title 24; it would not require you to put up something expensive such as solar
panels. To get to 20% energy efficiency, install a very low flow shower head, instead of low
flow, put in a dual flush toilet, landscaping is a good place to garner points; putting in low
water landscaping, drought tolerant plants, irrigation system designed to give them the right
Cupertino Planning Commission 18 October 12, 2010
amount of water. In GPR there are a number of credits for materials choices, type of carpet,
type of paint, the type of flooring, cabinetry, and counter top materials.
Alai Honda Snelling:
• Said the LEED EBOM is not reflected in the draft ordinance.
Walker Wells:
• It would be an alternative that they could consider; the way the ordinance is structured, it
doesn't spell out the individual LEED products; an applicant could go through the spectrum of
LEED options and say that existing buildings for operations and maintenance could be a good
fit and they would rather do it than have to do the future TIs. It is included by default in a way
that the ordinance is structured because it is part of LEED and LEED is referenced. He agreed
that they haven't provided as much clarity on how it would actually work as they have for
other parts of the ordinance; but potentially staff could have that as any option to offer a
building owner. He could or could not choose to use it.
• Said it would be as simple as adding a footnote, saying that applicants choosing to use LEED
for existing buildings must achieve that at least at whatever level; if considering silver; and
include credit, materials and resources 3 in their certification; and that would be the one
clarification of how the different LEED products would be applied.
Chair Brophy opened the public hearing.
Jennifer Griffin, Rancho Rinconada resident:
• Said she was concerned about sacrificing items such as floor area ratio, increased density in
housing, and compromising parking as incentives for builders to achieve certain levels of
certification. She said she felt they were completely separate, and are hot button controversial
items for the city, and could require as much as years of studies to come up with acceptable
standards for the city. Said she was not willing to compromise and have those hard fought -over
items in the city dangled in front of builders as incentives to have them reach certain building
standards. In a perfect world it would be wonderful to be able to do that, but unfortunately
Cupertino has certain hot button items that come up repeatedly. She said they did not have any
place in being used as incentives for builders. This was brought up in Page 3-35 early in the
focus groups; it said zoning exemptions could be problematic, community and Council may
have problems compromising parking and FAR.
Chair Brophy:
• Said he agreed with the point on the section of the draft ordinance.
Chair Brophy closed the public hearing.
Chair Brophy:
• Said he felt the FAR ratios used in the city were too high, and he had no interest in the name of
green building to increase them further. Relative to parking requirements, reducing that may
allow you to get greater density but that says you are implying that the parking levels are
excess to begin with, which is not the case.
• He said he agreed with Jennifer Griffin's statement.
Com. Giefer:
• An example of flexible parking requirements and how it worked with green building; is in
some of the more urbanized projects they built in Berkeley, they do shared parking with mixed
use where they have a reduced parking count because the assumption is that the homeowner is
Cupertino Planning Commission 19 October 12, 2010
not home during the day; and this is higher density, not single family; but the person who lives
there is gone during the day at work; so their parking space becomes available to somebody
that works in the mixed use project; so they double count that parking space.
She said in that context, it was acceptable.
Aki Honda Snelling:
• Said they do have allowances for mixed use, shared parking.
Chair Brophy:
• Cupertino is very different from Berkeley which is an urban setting where those type of
calculations make sense.
Com. Giefer:
• Said they were doing it in Mountain View as well; if it is already in Cupertino's code, she was
fine with that and said the point was well taken with regard to FAR.
Chair Brophy:
• Said Cupertino is a suburban town and those kinds of theoretical concepts of a green project
will not demand parking, and don't work out in real life. The same for the FAR, to say in
exchange for doing green building, we will let you build more square footage, seems to me to
offset it.
• Said he was not opposed to having a tiered system depending on the square footage of the
home.
Com. Miller:
• Said it did not make sense to say if you have 4 units or less that you only have to achieve this
level, but if 5 units or less, you have to achieve a greater level. In fact, the higher the density,
the smaller the units tend to be and you cannot equate the energy use of a 1,000 square foot
unit to the energy use of a 4,000 square foot unit. He said they were doing just that, penalizing
the higher density developments.
Com. Kaneda:
• He said he wanted to ensure they were not saying to go to a higher density project which is a
good thing if talking about sustainability; and that they are not making it harder for them to do
that; but keeping the bar about the same.
Aarti Shrivastava:
• Said they were -also trying to go for the size of the project assuming that a larger project would
have a bigger impact on the environment; if you are building a small project that has only 4
homes on it, it would have a smaller impact. If you have a larger project of 5 or more homes,
you would need more site area or larger percentage of the city's land area; it is impacting more
just because of the size of the footprint. You could also put in square footage in terms of per
unit square footage. She said it has not been done, but staff would be happy to try to
administer whatever the Commission and Council desired. .
Walker Wells:
• Said he did not feel there was an inherent reason to count dwelling units for residential and
square footage for non-residential. A simple proposal would be single or multi -family
residential projects or residential construction of less than 5,000 square feet and projects over
5,000 square feet; and they would have consistency in their metric of square footage. It is the
driver of the impact, not the number of dwelling units, but how large they are.
Cupertino Planning Commission 20 October 12, 2010
Aarti Shrivastava:
• Said they would look at the project; if it is a subdivision with 6 homes, the total square footage
will be counted in the project and not per home. Staff would like to know how the
Commission wants it counted; the 5,000 square feet would be the total amount of square
footage in the project, vs. if you were comparing with the multi -family building. They would
use the same metric unless staff was directed otherwise.
Com. Giefer:
• If the item is continued, she said she would like more information on the updated Built it
Green, and confirmation that Walker Wells could attend the next meeting. If there are not
funds for him to return to the next meeting, she said she would rather discuss the item further
at the present meeting, while he was there to share his expertise.
Com. Miller:
• Said they have talked about wanting to move forward in that direction, whether for energy
efficiency, more green building or reducing the carbon footprint. He expressed concern about
the current economic environment and the difficulty in getting anyone to build in Cupertino
right now, even without adding new regulations and costs to doing that. He said one of the
solutions is an incentive -based system that gives the developers the opportunity to see that it is
not going to take more time, cost more, be more challenging; because otherwise they will just
go somewhere else where it is less challenging.
• It is a struggle to get people who have been given approvals, to start building and in some
cases it has been years. There are areas that could be improved upon for processing
applications and reducing the cost to the developer.
• He said they may agree that changing the zoning laws and some of the other things that were
proposed as incentives are not very desirable, but if they can search harder and look for ways,
they can reduce the other costs associated with application approval. The green building will
add to the time of going through the approval process and also the construction. Going
through a certification process will also add time onto the end as well. He said he supported
anything they could do to offset the costs so that it is essentially a zero sum game; but basically
they are saying this is a higher priority than some of the other things they have.
• He said they should take a hard look at all the things they require developers to do today and
ask which are the highest priority ones; and if they want to add the new expense on, find some
other place where they can reduce the current expenses. He said he would rather have the
Green Building Ordinance in place.
• He said he has heard from developers that in all Bay Area cities, there are places and ways that
the processes could be improved, made more efficient and more cost effective. It would be a
win -win for everyone; they would have more green building and more energy efficiency and
also would be approving the process at the same time. He said it was something they should
be striving for.
Com. Giefer:
• Said she felt it was a good goal if they could find economies, cut back and be more efficient.
Building is presently non-existent in Cupertino and only projects that were built quickly were
the ones that the Commission provisioned as being LEED certified. She said it was interesting
that the ones they made as a condition for the project are the ones that were built.
Chair Brophy:
• Said he was interested in providing an incentive for the residential area, which is the one area
he is concerned about.
Cupertino Planning Commission 21 October 12, 2010
The burden imposed may not be equal to the benefit if they went to the Phase II
recommendations going less than 9 units, but they set the 75 point GPR standard for homes
under 2,000 feet and for above 2,000 feet it would be 100 points; above 9 units, everything
would be at 100 like it is here; but using 9 instead of 5 going back to the Phase II breakdown.
Does something like that make sense in terms of giving it an incentive to build smaller units?
Com. Giefer:
• Said she felt there needs to be an incentive, as staff does not appear to be supportive of this at
all, they could take their green projects and put them at the head of the line.
Aarti Shrivastava:
• Said if there is a Green Building Ordinance all of their projects will be ahead of the line.
Walker Wells:
• Said the incentive has to be commensurate with the cost; if asking people to build better, there
may be some costs that they may not be able to recoup; to at least level the playing field, the
incentive has to match that cost. There are many things that happen in the entitlement process
that cities don't have control over, such as the CEQA process, which is a State law where you
have to follow certain steps. That is what takes a long time in entitlements, so when you map
out the whole thing, the piece that the city has control over is often relatively small.
• The city has control over those things, you have local discretion about' how you set those
development standards and how you would prioritize relaxing them or modifying them to
create different outcomes in the market place. It doesn't cost anything to reduce parking or
increase the FAR beyond potentially political capital. Often these are hot things with the
community, they just don't like them and a lot of communities don't like to go there. That is
often where the real potential value is for a local government but they are difficult to deploy
for all the other reasons.
Aarti Shrivastava:
• People ask where the value is; the value is in the building and trying to put less parking. It is a
case- by -case basis because every project has to prove that it is not going to create that impact
that Chair Brophy was talking about. They would have to prove that the design is done in such
way that it doesn't impact the neighborhood. Additional FAR need not mean a degradation of
the neighborhood around it and we would make sure that any project that went through the
planning stage would meet all requirements of the use permit process. We set the bar high at
the exemplary level because we didn't want this to apply to every project coming in for FAR;
we want to encourage really high level of building. In order to meet an ordinance work, we
don't give incentives; we give incentives to people who go beyond the ordinance.
Com. Miller:
• The problem is that each individual ordinance makes perfect sense by itself, but when you add
them all up, they become very onerous as a group. As far as saving just a month, I have talked
to a number of residents who have applied to build a house in Cupertino and it took them an
entire year to go through the process. I do believe there is opportunities to make the process
more efficient. I don't know the individual reasons things take so long.
Walker Wells:
• Said that reviewing the requirements table would be a way to move forward, and also look at
the ordinance overall. He said if he was facilitating the meeting he would recommend
identifying what the sticky points are and see if they could remove them one at a time. They
have heard some things about incentives, heard a little bit about the thresholds, is it units or
Cupertino Planning Commission 22 October 12, 2010
size of building; some discussion about clarification on the use of LEED for existing buildings
as an option, and they need to clarify that.
Aarti Shrivastava:
• Said she would add a chart to the wish list; which is to let them find out where they are on this
for the next time they are starting from a different place, and secondly the verification process.
There are two options; one is more onerous but gives more certainty; the other one is less
onerous.
Com. Kaneda:
• For residential, realistically if somebody is going with some kind of LEED certification, they
are doing it because of an interest in sustainability. They are looking at what is the most
expedient way of designing a building, they would clearly go with green point rated. He said
he was not convinced that there should be two different point levels, especially in view of the
fact that it could be one thing; single family homes was one category and multi -family homes
was another and you automatically would get additional points by virtue of doing multi -family
homes. He said they should choose a number, either 75 or 100; he did not have a feeling with
GPR on how onerous 100 points is. He said he liked the idea of having a threshold and once
you start surpassing a threshold in square footage for an individual unit, you start adding more
points on to it, because it seems reasonable that if you are building a huge house, you want to
have a way of saying, you are doing a lot more damages and a lot more resources, using more
energy by virtue of being a larger house. Therefore, you need to design something that
compensates for that.
Walker Wells:
• Said that if the other commissioners agreed with the idea, he did not feel comfortable trying to
resolve the issue tonight, as he would need to go back and do some analysis and try to decide
what would be an appropriate way to ask for some higher level of performance for different
sizes of homes.
Com. Kaneda:
• Said for commercial new construction, he would like to see the number brought back down to
25K because 50K is such a large number. If the reason for bumping that number up was the
cost of certification in the smaller size, he would accept not requiring formal certification until
the 50K sq. ft. threshold was met. He said he was intrigued with the idea of EBOM, but did
not understand in detail what the implications are. If it turns out that there is something
onerous about it that is not understood, you could still go with the traditional way of
approaching it which is a LEED certified, LEED certified equivalent or LEED silver
equivalent. He said they need to be careful with the HVAC; it is a bonified point that energy is
a big piece of getting that certification.
• He said he supported Option 1 for residential because GPR is not expensive to do, GPR will go
out and inspect equipment in the home and do blower tests which are valuable. He said for
non-residential standards, his inclination was to only require formal certification at the largest
size for new construction. For eenovations, with EBOM, you have to certify also. If it didn't
go that way, he said he would question how cost effective it is going to be to have every
piecemeal TI job, 5 projects in a single building have to separately go through the paperwork
and certify, which is onerous. He said he would be more inclined to the city determination if
going that way.
Cupertino Planning Commission 23 October 12, 2010
Chair Brophy:
• Wouldn't most renovations of multi -tenant buildings come under the minor renovation
category.? The major renovation is at 25,000 sq. ft.
Com. Kaneda:
• Said he would look at bumping that back down to 10,000 and use Option 2 certification.
Com. Giefer:
• Said she agreed with most of Com. Kaneda's summary; but was not comfortable with self -
certification for the commercial. You are guaranteed to have certified plans but the building
may or may not perform and those are the projects that when they come into play can actually
make the biggest difference, because they are the largest ones. That is a concern with regards
to the self or secondary certification option, and it doesn't meet the over -arching objective with
what AB32 and other things are trying to accomplish.
• The EBOM is intriguing because it is done all at one time and you don't have to come back
and it is less onerous in the long run for the building. For new construction for commercial,
she agreed that the 50,000 is too high and would choose 25,000. It is the certification process;
if you are leaving it up to an independent certification process who reviews your plan, then the
concern is your plans are certified, but as Walker Wells mentioned earlier, 60% of what is in
the plan gets executed and that is a huge swing.
• Said she was concerned that they might miss and one thing that would be helpful would be to
understand from staff what percent of permits are under $25K. She said those present are
familiar with the ones that are well over that because they come to the Commission; but it is
the day-to-day running of business that is quite a bit under that size.
Com. Giefer:
• All those less than $25K add up to a big square footage number that is missing.
• Said she wanted to know about the mix of commercial permits, both renovations and new.
Said she felt they had a good handle on the new because they met those people; but relative to
the renovations, the day-to-day business, they don't have a clue what those are until they see
construction going on in the city.
Com. Kaneda:
• A huge issue is the existing single family homes which the State is currently grappling with. It
is the type of thing nobody wants to discuss and is where most of the energy is going. If
nothing is done, the problem is not being attacked, because even if you get all of new homes
from now on down to zero, there is such a huge number. Looking at Cupertino, how much
space is there for new home construction, how many existing homes are there that 95% of the
land is already taken up with existing homes.
Aarti Shrivastava:
• Said they are addressing part of it by saying single family projects that renovate more than
50% of the area have to meet Cal Green mandatory; they don't want to go after people who are
not doing anything. Cal Green doesn't address energy.
Com. Kaneda:
• Said he did not think it would be solved at this level, but it is an issue.
Com. Giefer:
• Said she felt it was a good idea to have a tiered residential system; the bigger home you build,
you should have to achieve more points because you are consuming more resources, and
Cupertino Planning Commission 24 October 12, 2010
creating more greenhouse gases in the long run.
Chair Brophy:
• Asked Com. Giefer if she would use the tier in lieu of the number of homes, and base it on the
square footage?
Com. Giefer:
• Said she would use the tier in lieu of the number of homes. She said it sounded reasonable if
assumptions are made based on the Build It Green number discussed earlier, that you can come
up with a multi -unit single family residential tiered system, that speaks to both the square
footage and the units. If you assume that the multi -dwelling units were 1,000 square feet, if
you said 5 units, 5,000 square feet bigger or smaller, then perhaps that is demarcation for the
multi -unit. She said she liked the big system of the 1,850 3-bedroom and the 2,600 for the 4
bedroom; you achieve different tiers of points based on the square footage.
Aarti Shrivastava:
• Said the simpler they make it, the easier it is if they have a square footage amount for a single
family, and if they are bigger, they need to meet more points, ala Morgan Hill, and have more
of a density in size for the multi -family.
Com. Giefer:
• Asked staff to return with their opinion on what is reasonable and manageable based on
Commission's comments.
Walker Wells:
• Relative to how much time the certification process adds to the project schedule, he said the
requirement for certification should not add any time to the project schedule because you
would know about it ahead of time, you prepare the documentation that city needs to see when
you get your building permit, project would be done and you would be able to get a temporary
certificate of occupancy. The final certificate of occupancy is given when the certification is
brought forward. The consultant who does the review on behalf of the city is a good one and
is tied into the city process, they should get it done within the same plan check timeframe as
the building official and public works is doing.
Com. Miller:
• Said it was an interesting concept, but he saw potential problems with the temporary certificate
of occupancy; what happens if the building does not meet?
Walker Wells:
• That is the reason for the fee. If you don't bring your certification within whatever the
accepted amount of time is, you forfeit your fee and you are then considered to be free and
clear; your building is not paralyzed or held hostage by this requirement and are not precluded
from transacting it which is the concern.
Aarti Shrivastava:
• If the Planning Commission wants to go to the verification, the mechanics of it can be
discussed; one is the way it is set up; the other way is to say you get your final occupancy and
the city holds the deposit. You either forfeit the deposit or you have to spend at least the
amount of the deposit to try to rectify it.
Cupertino Planning Commission 25 October 12, 2010
Com. Miller:
• From a practical standpoint, if you get the certificate of occupancy and someone moves in, it
might be difficult to go into that structure and start rectifying it.
• If not given a temporary certificate of occupancy, how long is it from the completion of the
building to the approval of the certification?
Walker Wells:
• Said he was not certain anyone would do so, but if they wanted, they could say they would not
occupy that building until they get their certification from the US Green Building Council.
They could build in 2 to 3 months of a cushion to go through the submittal process.
Com. Miller:
• Said with respect to Option 1 or 2, his concern is more with the cost of time and expense, and
he did not feel strongly about one or the other; but felt strongly that there be some offset to
whichever one they require. He said he was not in favor of mandatory and was in favor of
incentive based and would rather that the developer want to do it because either the market
place or the city provided the incentives to motivate him to do it, which makes compliance
easier. He said he felt they should begin at the lower levels and work up to the higher levels as
they get more familiar with the process and as they can demonstrate that they can offset the
costs of the lower level at first instance and to the higher level as staff becomes more
experienced in doing this.
• In Option 1, staff would be looking for ways to reduce other costs in the approval process. The
other ideas discussed making the point system based on size of the home is a better approach
than number of units; it gets more to the heart of what they are trying to do. It made sense and
Com. Kaneda's suggestion that there be a flat rate also made sense.
• He said there was general consensus towards that, and he supported it.
Com. Kaneda:
• Regarding fees and deposits, that idea; different numbers have come from Washington D.C.,
which has some huge punitive number too, and San Jose who has an extremely low number
which is not even a slap on the wrist.
• San Jose's approach is they said they are going to throw out a really low number because
hopefully people are going to do the right thing for the right reason and not scoff at it and say
here is my check, I am not coming back; but they put in a review of how well it is working, so
if it turns out that is the result, they can turn around and say okay you are forcing our hand we
are going to start ratcheting up the rates until they get to the point where people will pay
attention. Financially it is the least onerous, and there is the ability to do something about it if
it is not working, yet you have the ability if it is not working to do something about it.
• It sounds like staff could come up with an alternative way of doing it with the credit line that
may not be onerous. He said he was referring to the fee deposit for Option 1, and if they say
LEED silver and they don't get LEED certified or something like that. San Jose seems
Workable; what you talked about with credit lines, I am not sure I understand it but it seems
like a reasonable way of doing it also.
Walker Wells:
• The credit line is a mechanism so that people don't have to tie up real dollars in an account;
more to the point is that the way this has been structured is to say that the fee needs to be a dis-
incentive for not complying or stated the other way, an incentive to comply. It would be
cheaper to go through GPR or LEED than to forfeit the money to the city. That is how it is
structure; it means it is big, so it is the opposite of what San Jose has done because the concern
that has always come up everywhere I have worked is that people would perceive it as an in-
Cupertino Planning Commission 26 October 12, 2010
lieu fee just like they do for affordable housing.
Vice Chair Lee:
• Relative to the residential units, it makes sense to make the thresholds on square footage
instead of number of homes, such as 5,000; one of the comments from the focus groups was to
make it easier. Still need to discuss the number of points, whether it should be 50, 75 or 100.
It would make sense instead of trying to remember two different point systems, two different
thresholds.
• She said she felt more discussion was needed about the incentives; she was not totally against
them with requirements for parking and square footage; there was merit in having some
incentives for developers. EBOM is important; she said she was surprised to hear that when
the building specs are written out when it is planned and actually performs, it tapers off to
60%, which is low.
• Need more discussion on LEED EBOM and see if that should be an option, and not a sidebar.
• At the focus group meetings there was not much discussion on EBOM, but talked about
LEED. Relative to verifications, should go more toward Option 1; the six month grace period
is appropriate.
Chair Brophy:
• Relative to residential, he suggested raising the number of unit count for the lower level back
up to 9, like Phase II recommendations; and for homes less than 2,000 sq. ft. he said he would
support 75 point GPR; for over 2,000 sq. ft., 100 point GPR. For the various other commercial
ones, wherever it says 3 of the 4 following systems, replace that with HVAC plus two of the
three systems.
• Said for formal certification vs. Option 2, he would choose 25K and make it below 25K, 10 to
25 be Option 2 and above 25 formal certification; Option 2 for multi -family renovation.
• Relative to the grace period, given the rate of construction, there has to be some grace period
because there are people who are individual builders who are not part of the larger
development community or working on their house plans; perhaps 3 is enough, in this market
6 is appropriate.
Com. Giefer:
• Why wouldn't we want to notify everyone who we have had a discussion with and say that we
are working on a green building policy and once it is resolved, notify them in advance that it is
going to go in effect on X date, so that the time now through our deliberations through
implementation is actually part of that grace period.
Aarti Shrivastava:
• Said there was a cost to notifying everyone individually; the decision was made to send out the
one notice to get people involved so that they keep track of the project, and the cost runs in the
range of $6,000 for every notification. Any additional notification to that same list will need
more funding.
Chair Brophy:
• There is a logical argument to the suggestion; looking at the ease of administration issue that
Walker Wells was covering earlier, it is probably easier to say X months from date of passage.
Aarti Shrivastava:
• Said that when people are designing a project, they come to the city to ask what the rules are;
and staff wants to be able to tell them the rules, but it is difficult to tell them the rules when
they haven't yet been identified.
Cupertino Planning Commission 27 October 12, 2010
Com. Giefer:
• Said that if a permit expired in two years, she could pull her permit and then not have to have
funding for the project; and then in 24 months after that notification period, she could start a
project that is so far in the future by the time that it is executed on the ground and completed,
they are pushing that out; it is not just a three month notification.
• Said she was trying to understand what could be the worst case project on the ground after this
is submitted which if it is three months, that is actually 3 months plus 24 months or 6 months
plus 24 months.
Aarti Shrivastava:
• Once a building permit is applied for, it needs to be kept active; if the inactive time is
exceeded, the permit becomes expired and re -application for the permit is necessary. The
inactivity period is 6 months and one extension is allowed.
Com. Miller:
• Relative to the industry side, people make decisions to do a development well in advance. It is
appropriate to give lead time, if they decide that is the straw that broke the camel's back and
they don't want to go ahead with the development, they are not caught. For that reason alone, it
is reasonable to give a lead time. He said he supported 6 months, for larger projects a year or
two. As Com. Giefer said earlier, people know this discussion is happening, so for the larger
projects, they are more aware and are going to be coming in and staff will inform them. There
is concern about the smaller projects, where they are probably not aware and you don't want
them to get caught.
Chair Brophy:
® There aren't people rushing to do building plans on larger projects now. There are individual
homes and those would be the issue, but they have a shorter lead time in terms of preparing
design documents.
Aarti Shrivastava:
• Said she would follow up with the City Manager on the availability of funds to have Walker
Wells attend the next meeting the application was continued to.
Motion: Motion by Com. Miller, second by Com. Kaneda, and unanimously carried
5-0-0, to continue Application MCA-2010-04 to the October 26, 2010 meeting.
4. MCA-2010-05 Municipal Code Amendment to Chapter 19.100 (Parking Ordinance)
City of Cupertino with associated amendments to Chapter 19.08 (Definitions) related to
Citywide Location clarifying language regarding storage and parking of heavy
equipment, aircraft and planned non -operational vehicles in residential
zones. Postponed from the September 28, 2010 Planning Commission
meeting; Tentative City Council date: November 16, 2010.
Pin Ghosh, Associate Planner, presented the staff report:
• Reviewed the application for Municipal Code Amendment to Chapter 19.100 (Parking
Ordinance) of the Cupertino Municipal Code with associated amendments regarding storage
and parking of heavy equipment and planned non -operational vehicles in residential zones, as
outlined in the staff report.
• The purpose of the Parking Ordinance is to regulate the parking of vehicles which are
unsightly, oversized or detrimental to property values, or to the peace and enjoyment of