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CC 12-21-10CUPERTINO APPROVED MINUTES CUPERTINO CITY COUNCIL Regular Meeting Tuesday, December 21, 2010 PLEDGE OF ALLEGIANCE At 6:45 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 recognizing Captain Terrence Calderone for his service in the City Action: Mayor Gilbert Wong presented the proclamation 2. Subject: Proclamation commending Cupertino High School Students Tobias Chisup Shin and Andrew Yoon for assisting the Santa Clara County Sheriff's Office in the resolution of a bank robbery Action: Mayor Gilbert Wong presented the proclamation POSTPONEMENTS - None WRITTEN COMMUNICATIONS Deputy City Clerk Grace Schmidt distributed the following written communications: • For item No. 10, the draft lease with the Coffee Society • For item No. 11, Lehigh Cement East Materials Storage Area (EMSA): • Email from Susan Sievert in favor of a resolution condemning the handling of the EMSA • Emails from Ben Cooper and in favor of stopping the proposed new open pit mine and stopping ongoing violations • Letter dated November 10, 2010 from former Mayor Kris Wang with information about upcoming hearings December 21, 2010 Cupertino City Council Page 2 ORAL COMMUNICATIONS Mayor Wong announced that on a trial basis, the agenda would be re- ordered to move the Oral Communications section to the end of the meeting any time there were more than five requests to speak. He also stated that all speakers from the public on any item on the agenda would be limited to two minutes instead of three, in view of the number of potential speakers and the increasing length of Council meetings. City Attorney Carol Korade noted that State law establishes the right of the public to speak, and the mayor has the prerogative to set the time limit. Cathy Helgerson mentioned an article in a San Jose paper regarding 35 cities, including San Jose, being tested for chromium 6 in the water. The article noted that California proposed setting a public health goal limit of 0.06 parts per billion on the amount of chromium that could be in the water. Ms. Helgerson said that according to the 2009 Cal Water report, the level of chromium in the water was at 6.3. She explained that due to the toxins in the air, water, and soil, her cancer came back in a different form. She said that Lehigh Cement, the Stevens Creek Quarry, and the Apple Computer facility on Bandley Drive were the culprits of all the pollution. She asked Council to do something about the companies and to help stop the pollution in Cupertino. She distributed copies of the San Jose article. CONSENT CALENDAR Wang moved and Mahoney seconded to approve the items on the Consent Calendar as recommended, with the exception of Item No. 8 which was pulled for discussion. Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Abstain: None. 3. Subject: November 16 and November 29 City Council minutes Recommended Action: Approve minutes 4. Subs: Accounts Payable for period ending December 3, 2010 Recommended Action: Adopt Resolution No. 10 -226 5. Subject: Accounts Payable for period ending December 10, 2010 Recommended Action: Adopt Resolution No. 10 -227 6. Subject: Payroll for period ending December 10, 2010 Recommended Action: Adopt Resolution No.10 -228 7. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Hungwen Li and Hung -Ping Li, 10450 Ann Arbor Avenue Recommended Action: Adopt Resolution No. 10 -229 December 21, 2010 Cupertino City Council Page 3 ITEMS REMOVED FROM THE CONSENT CALENDAR (above) 8. Subject: Review opportunities for future development on the Hewlett Packard (HP) campus located in the North Vallco Park Master Plan Area Recommended Action: Table this item until such time the new property owners of the HP campus in the North Vallco Area are ready to present their plans for future development to the City Discussion: Council member Chang asked whether any of the $25,000 that Council approved to pay for a consultant to look into the HP property had been spent. Economic Development Director Kelly Kline said that staff is recommending that this item be tabled, so no funds would be expended. Chang also noted that he had contacted Apple Computer as an individual Council member letting them know that Council would try to help them be successful in the new campus. Cathy Helgerson said that she was concerned about Apple Computer moving to the HP site and she asked to have the building removed immediately because it caused her family's cancer. She asked Council to do something about the pollution coming from Apple and noted that the pollution contains an unregulated toxic element. Chang moved and Mahoney seconded to table this item as recommended. The motion carried unanimously. PUBLIC HEARINGS - None UNFINISHED BUSINESS - None NEW BUSINESS 9. Subjeci: Consider a Library Commission proposal to establish a Poet Laureate for Cupertino Recommended Action: Adopt resolution No. 10 -230 designating a Cupertino Poet Laureate, and request that. the Library Commission appoint a selection committee to oversee and administer the program Description: The Poet Laureate's responsibilities would be to stimulate cultural and literacy awareness and to reinforce the benefits of poetry to the community Discussion: Library Commission Chairman Ron Miller congratulated the new Mayor and Vice Mayor. He said that last August, former Mayor Wang challenged the commissions to find a way to make Cupertino a better place to live. The Fine Arts and Library Commissions are asking Council to establish a Poet Laureate. He introduced members from the Provisional Cupertino Poet Laureate Selection Committee, noting that the names were listed in the Council packet. He also read an excerpt from a book by Lauren Merritt title, The Heart of an Engineer. Action: Mahoney moved and Wang seconded to adopt Resolution No. 10 -230. The motion carried unanimously. December 21, 2010 Cupertino City Council Page 4 10. Subject: Coffee Society Lease Recommended Action: Authorize the City Manager to execute a three year lease with the Coffee Society Discussion: Public Works Director Timm Borden reviewed the staff report. Council noted some typos in the lease and staff said that they would make those corrections. Action: Wang moved and Mahoney seconded to continue this item to the meeting of.7anuary 4 to have time to review the lease. The motion carried unanimously. RECESS - Council recessed from 7:30 p.m. to 7:40 p.m. 11. Subject: Lehigh Cement East Materials Storage Area (EMSA) Recommended Action: Consider what letter or resolution, if any, the City Council may wish to send to the Santa Clara County Board of Supervisors regarding Lehigh Cement East Materials Storage Area (EMSA) Discussion: Mayor Wong reminded the audience that they have up to two minutes to speak on any agenda item or under Oral Communications. The City Attorney noted that State law establishes the right of the public to speak, but it does not establish any time limit. The agenda states that speakers may speak up to three minutes, and the mayor has the prerogative to change the amount of time. City Manager David Knapp introduced the item, noting that this was something Council asked to be put on the agenda. Public and Environmental Affairs Director Rick. Kitson said that staff has accumulated approximately 44 different reports about the subject, ranging from the State Mining and Reclamation Act and compliance to traffic and other mitigations. He noted that any material received from any of the regulatory agencies has been posted on the City's website at www.cupertino.or /g lehigh. He explained that the material is listed in chronological order and broken out by subject area, dating back to 2007. He also noted that that since Lehigh is not under the City's jurisdiction, staff is not fact - checking any documents received from any of the regulatory agencies. He answered questions from Council. Plant Manager of Lehigh Quarry and Cement Plant Henrik Wesseling said that they are proud to provide local building materials for Cupertino, Santa Clara, and the Bay area for over 70 years by complying with the most stringent environmental rules and regulations. He explained that the focus tonight is on the east materials storage area (EMSA) and that they have received support from many of the neighbors. He noted that Lehigh does have a Title V permit. Marvin Howell, Director of Land Use Planning and Permitting for Lehigh's West Region, said that they have three goals for the EMSA: 1) Amend the existing reclamation plan to include the EMSA within its boundaries; 2) Enhance the biological value of the 89 -acre parcel; and 3) Improve views looking towards the industrial facility from the valley floor. He December 21, 2010 Cupertino City Council Page 5 explained that nothing in the application expands the existing quarry or provides for a single acre of new excavation anywhere on the 3500 acres. He noted that the EMSA has been a storage area for more than 70 years and the project provides for the replanting and reclamation of stockpile area; biological analysis has shown that the project will result in a much better habitat than what exists there today. He showed a photo from 1940 of the beginning of the stockpile and what the area looks like today, noting that the stockpile area is indistinguishable and that the current plan would be even better since native plants would be used. He showed photo representations of what the project would look like in 5, 10, and 20 years and explained the project would be developed in three phases, with replanting as each phase is complete. He said that the project would take about 5 years to complete and everything associated with the construction of the EMSA will be covered by the County's Environmental Impact Report (EIR). Mr. Wesseling and Mr. Howell answered questions from Council. Council recessed from 8:13 p.m. to 8:20 p.m. The following individuals spoke on this topic: Saneev Mahalawat Phil Pflager Anne Pflager Ashley Cushman representing a grassroots organization for clean air and long health Amy Migdal Michael Enescu Michelle Bazargun Teri Wiss Kelly Hsiao Frank Geefy Rhoda Fry Justin Fry Emily Kinner representing De Anza College students Victor Arredondo representing students, residents, and veterans Leigh Stevens Don -Min Tsou Soeun Park Gary Ettinger Kiyo Ouchida Nahui Quetzelcoat Cathy Helgerson Rod Sinks Alex Sakhanyuk Karen Del Compare Nadine Grant Kristal Caidoy Kevin McClelland representing the Chamber of Commerce December 21, 2010 Cupertino City Council Page 6 Tim Brand — distributed copy of Executive Officer's report from State Mining & Geology Board for the City's website and maps showing the area Craig Lee Richard Adler — distributed copy of draft EMSA resolution and document from the US Environmental Protection Agency Ron Yu Bill Almon Lyn Faust David Russell Brett Alten, attorney with Apple Computer Farro Agdassi Chris Toomey Chris Pribe John Bartas Bill Erdman Thorsten von Stein Marylin McCarthy Connie Frenzel, Acting President of the Autism Society and former Santa Clara County public health nurse -- distributed a summary comparison of characteristics of autism and mercury poisoning Lily Lim Shani Kleinhaws Patricia Rod Brian Franklin Paula Wallis Roy Hong Robin Claassen Johnson Lau Their comments included: concerns about the proximity of the plant to residents, visual aesthetics, traffic, noise, toxic dust, and air and water pollution from mercury and chromium toxins; urged Council to send a resolution or letter to the County strongly supporting enforcement of all regulations and appropriate fines; against vested rights; take a proactive step in making building materials more green; encouraged residents to talk to the County and the regulating agencies directly; urged residents to visit the quarry and see the storage area personally. Council recessed from 10:06 p.m. to 10:24 p.m. Council discussed the issue and asked questions of staff. Action: Mahoney moved the following: (1) Send a letter to the County with the following talking points: report out what was heard tonight by the residents; how many people spoke; the level of concern of the residents; encourage the County to look at upcoming health and safety issues in a serious manner; and deal with those issues in an expeditious fashion; (2) December 21, 2010 Cupertino City Council Page 7 Ratify former Mayor Wang's letter of November 10; and (3) and send a copy of the letter to all the regulatory agencies. Santoro seconded but withdrew his second after more discussion. Chang moved to send the drafted resolution to the County; it would be reviewed by the City Attorney and come back for Council approval. The motion died for lack of a second. Mahoney moved the same motion as before: (1) Send a letter to the County with the following talking points: report out what was heard tonight by the residents; how many people spoke; the level of concern of the residents; encourage the County to look at upcoming health and safety issues in a serious manner; and deal with those issues in an expeditious fashion; (2) Ratify former Mayor Wang's letter of November 10; and (3) and send a copy of the letter to all the regulatory agencies.Wang seconded for purposes of discussion. Wang made a friendly amendment to note that the purpose of the letter was to strongly urge the County Supervisors to look into the issue in a timely manner; with the number one message being to show a strong stance, and that the letter represents the entire community. Mahoney accepted the friendly amendment. The motion carried 4 -1 with Chang voting no. ORDINANCES - None STAFF REPORTS Council agreed to call a special meeting at 6:30 p.m. on January 4 to discuss the Coffee Society lease. Council agreed to start the January 18 meeting at 3:00 p.m. in order to have time to review the mid -year budget adjustment. COUNCIL REPORTS Council discussed reconsidering the vote on Item No. 11 regarding the Lehigh letter and asked the City Attorney to explain the process. Craig Lee said that countless letters have sent and that this letter could be memorialized as a resolution asking the County to look at health and safety issues. Bill Almon urged Council to be careful since many people who spoke earlier had already left knowing what the first vote was and there is already lack of confidence and worry about this issue. Wang moved and Chang seconded to reconsider re- voting Item No. 11 on the prior motion without change. The motion carried unanimously. December 21, 2010 Cupertino City Council Page 8 Mahoney moved and Wang seconded to revote Item No. 11 on the prior motion as summarized into talking points by the City Clerk and to be written by the Public and Environmental Affairs Director. The motion carried unanimously. Council continued with Council reports and highlighted the activities of their committees and various community events. ADJOURNMENT At 12:35 a. in. on Wednesday, December 22, the meeting was adjourned to January 4 at 6:30 p.m. 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.coertino.org. Click on Agendas & Minutes, then click Archived Webeast. Videotapes are available at the Cupertino Library, or may be purchased from the Cupertino City Channel, 777 -2364.