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Exhibit CC 03-15-2011 Item No. 14 Newest Revisions to Municipal Code Ordinance � {-e017 CC 3// s - lip ORDINANCE NO. 11- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTER 2.08.096 OF THE CUPERTINO MUNICIPAL CODE REGARDING RECONSIDERATION - SOUGHT BY INTERESTED PERSON THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Code Amendment. Section 2.08.096 of the Cupertino Municipal Code is hereby amended to read as follows: A. After the decision of the City Council, the City Clerk shall forthwith mail all notices of decisions to the applicant or appellant after the decision of the City Council. Any interested person, prior to seeking judicial review of any adjudicatory decision of the City Council, shall file a petition for reconsideration with the City Clerk within fourteen fifteen (14 :) calendar days of the date of the mailing of the notice of decision. Failure to file a petition for reconsideration constitutes a waiver of the right to request reconsideration and the City Council's decision shall be final for all purposes. Upon timely receipt of a petition for reconsideration, thc City Clerk shall schedule a reconsideration hearing to be commenced by thc City Council no later than sixty (60) days after the filing of the petition. Mailed notices of the date, time and place of such hearing will be provided to all interested persons at least ten (10) days prior to the he wring. At the conclusion of the h wring for reconsideration, thc City Council may affirm, reverse, or modify its original decision, and may adopt additional findings of fact based upon thc evidence submitted in any and all city h wrings concerning the matter. B. A petition for reconsideration shall! specify, in detail, each and every ground for reconsideration. Failure of a petition to specify any particular ground or grounds for reconsideration precludes that particular omitted ground or grounds from being raised or litigated in a subsequent judicial proceeding. The grounds for reconsideration are limited to the following: 1. An offer of new relevant evidence which, in the exercise of reasonable diligence, could not have been produced at any earlier city hearing. 2. An offer of relevant evidence which was improperly excluded at any prior eCity Council hearing. 3. Proof of facts which demonstrate that the City Council proceeded without, or in excess of its, jurisdiction. 4. Proof of facts which demonstrate that the City Council failed to provide a fair hearing. 5. Proof of facts which demonstrate that the City Council abused its discretion by: a. Not proceeding in a manner required by law; and/or • Ordinance No. 11- Page 2 b. Rendering a decision which was not supported by findings of fact; and/or c. Rendering a decision in which the findings of fact were not supported by the evidence. C. Within thirty (30) calendar days of receipt of a petition for reconsideration a two person subcommittee of the City Council shall review the written material and determine if the criteria for reconsideration are met. Only if at least one of the criteria for reconsideration ,:s met, shall the matter actually be reconsidered by the City Council. The City Clerk shall advise the petitioner and the Cite Council in writing of the subcommittee determination. 1. If the subcommittee determines that one or more of the criteria are met, the City Clerk shall schedule the item for City Council consideration within forte f 'e ( 15 i calendar days of their decision, which shall be held no later than sixty (60) calendar days from the date the petition was filed with the City Clerk. Mailed notices of the date, time and place of such hearing will be provided to the petitioner at least ten (10) calendar days prior to the hearing. D. At the conclusion of the City Council hearing for reconsideration, the City Council willjirst determine if sufi'i,i.ient rounds for reconsideration exist. Should the City Council find sufficient 'roundsfor reconsideration the Cite Council shall may affirm, reverse, or modify its original decision, and may adopt additional findings of fact based upon the evidence submitted in any city hearings concerning the matter. The City Council decision shall be final take final action within sixty (60) days and that action shall not be subject to further reconsideration. E. A petition for reconsideration is subject to a reconsideration fee as prescribed by resolution of the City Council. At the conclusion of the reconsideration hearing, the City Council may, in its sole discretion. refund all. or a portion, of the reconsideration fee. Section 2. Statement of Purpose. The Amendment is intended to clarify the procedural aspects of the reconsideration process. Section 3. Severability. Should any provision of this Amendment, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable. Section 4. Effective Date. This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937. Ordinance No. 11- Page 3 Section 5. Certification. The City Clerk shall certify to the passage and adoption of this Ordinance and shall give notice of its adoption as required by law. Pursuant to Government Code Section 36933, a summary of this Ordinance may be published and posted in lieu of publication and posting of the entire text. INTRODUCED at a regular meeting of the Cupertino City Council the day of and ENACTED at a regular meeting of the Cupertino City Council the day of 2011 by the following vote: Vote Members of the City Council Ayes: Noes: Absent: Abstain: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino Cc 3 1011 4/ COMMENTS, CONCERNS AND RECOMMENDATIONS REGARDING PROPOSED CHANGE IN PROCEDURE: PETITION FOR RECONSIDERATION AT THE APRIL 4TH, 2006 CUPERTINO CITY COUNCIL MEETING, AGENDA ITEM #1 4, 2006 -2007 FEE SCHEDULE #06 -656, 1 OPPOSED ANY FEE FOR FILING A PETITION FOR RECONSIDERATION OF A CITY COUNCIL DECISION. A FEE WOULD IMPOSE A BURDEN UPON THE PUBLIC IN THE DECISION MAKING PROCESS. THE $500 FEE HAD BEEN PROPOSED AS "A LOW DOLLAR AMOUNT TO NOT DETER A CITIZEN FROM FILING FOR RECONSIDERATION DUE TO COST." $500 MAY OR MAY NOT BE CONSIDERED TO SOME AS A LOW DOLLAR AMOUNT. THERE MAY BE A CERTAIN PART OF THE PUBLIC WHO WOULD CONSIDER $500 AS MORE THAN A LOW AMOUNT. A FEE OF ANY AMOUNT WOULD DEFER MANY CITIZENS FROM FILING FOR RECONSIDERATION OF A CITY COUNCIL DECISION BECAUSE THE DECISION ON A RECONSIDERATION IS MADE BY THE SAME ENTITY WHO MADE THE INITIAL DECISION. AND A DECISION IN FAVOR THE PETITION ONLY ALLOWS THE MATTER IN QUESTION TO BE DECIDED A SECOND TIME BY THE CITY COUNCIL WHO MADE THE INITIAL DECISION. THE PROPOSED CHANGE INVOLVES A SUBCOMMITTEE APPOINTED BY THE CITY COUNCIL. COMPOSITION OF THE SUBCOMMITTEE IS UNKNOWN. COST RECOVERY WAS THE REASON TO IMPOSE THE FEE. IT WAS STATED THAT THE COST OF RESPONDING TO THE RECONSIDERATION PETITION IS $5,000 AND THE FEE SHOULD BE $500 (1 0% OF $5,000). AT THE APRIL 4TH MEETING THERE WAS NO HISTORIC DATA PROVIDED ON THE COST OF RESPONDING TO A RECONSIDERATION PETITION. SUBSEQUENTLY, DUE TO A PETITION FOR RECONSIDERATION REGARDING CHARGING A FEE FOR PETITIONS FOR RECONSIDERATION THIS DATA WAS PROVIDED IN SUMMARY FOR AGENDA ITEM #1 3 FOR THE JUNE 6, 2006 CITY COUNCIL MEETING. ALTHO THE DATA SEEMS TO SUPPORT THE CITY'S POSITION. LET'S LOOK AT THE DATA: IT IS QUITE A COINCIDENCE THAT THE CITY ATTORNEY TOOK EXACTLY THE SAME AMOUNT OF PREP TIME: 18 HOURS ON EACH OF 4 RECONSIDERATION PETITIONS. THE PLANNING DIRECTOR TOOK EXACTLY THE SAME AMOUNT OF PREP TIME: 3 HOURS ON EACH OF' THE 4 RECONSIDERATION PETITIONS. AND THE CITY MANAGER TOOK EXACTLY THE SAME AMOUNT OF PREP TIME: 1 HOUR ON EACH OF THE 4 RECONSIDERATION PETITIONS. IN THE SUMMARY FOR ITEM # 1 4 FOR THE JUNE 20, 2006 CITY COUNCIL MEETING, THE CITY'S STATES: "...(FIVE HEARINGS AT APPROXIMATELY $5,000 EACH). WE ASK THAT YOU CONSIDER WHAT YOU COULD HAVE PURCHASED WITH THE STAFF TIME INVOLVED: > OUR PART-TIME NEIGHBORIHOOD WATCH COORDINATOR, OR > OUR PART -TIME DISASTER PREPAREDNESS COORDINATOR, OR > OUR PART -TIME CODE-ENFORCEMENT OFFICER, OR > SHAKESPEARE IN THE PARK, OR THE > CITY COUNCIL TV PUBLIC ENGAGEMENT PROGRAM THIS STATEMENT IS MISLEADING. THE $25,000 CITED IS THE VALUE OF STAFF TIME. UNLESS THE STAFF INVOLVED IS GIVING UP $25,000 COLLECTIVELY IN SALARY, THERE IS NOT $25,000 AVAILABLE FOR THE USES OUTLINED. ANOTHER COMMENT FROM THE CITY WAS "THOSE WHO DON'T WANT TO PAY THE FEE CAN ALWAYS (VOICE: THEIR CONCERNS) AT THE ORAL COMMUNICATION PART OF THE CITY COUNCIL MEETING." OF COURSE, THIS WOULD HAVE TO BE DONE AT A SUBSEQUENT MEETING AFTER A DECISION HAS ALREADY BEEN MADE. AND AS YOU ARE AWARE, NO ACTION CAN BE TAKEN ON A MATTER DISCUSSED DURING ORAL COMMUNICATIONS. ANOTHER REASON BROUGHT UP ON APRIL 4, 2006 IN CITY COUNCIL DELIBERATIONS WAS THE RECENT NIJMBER OF "MERITLESS" REQUESTS FOR RECONSIDERATION. 1 AM CERTAIN THAT THE PERSONS WHO HAVE FILED FOR RECONSIDERATION CONSIDER THAT THEY HAVE LEGITIMATE CONCERNS. 1 BELIEVE THAT AN EFFECTIVE AND DEMOCRATIC WAY TO DEAL WITH THE ISSUE OF MERIT OF A PETITION IS BY EXPOSING THEM TO THE OPEN DISCLOSURE AND OPEN DEBATE LEADING TO A VOTE. PERHAPS A BETTE] WAY WOULD BE TO IMPROVE THE WHOLE PROCESS FROM THE START. TO ILLUSTRATE: PRESENTLY THE CITY COUNCIL IS DECIDING AN ISSUE, THE STAFF GIVES ITS REPORT AND THE CITY COUNCIL MAY ASK QUESTIONS, THE APPLICANT PRESENTS ITS APPLICATION AND THE CITY COUNCIL MA' ASK QUESTIONS, THE PUBLIC IS GIVING AN OPPORTUNITY TO COMMENT, THE CITY COUNCIL DELIBERATES AND VOTES. HOWEVER, AFTER PUBLIC COMMENT DURING DELIBERATIONS BY THE CITY COUNCIL, ADDITIONAL INFORMATION IS BROUGHT FORWARD, SO THE PUBLIC IS NOT ABLE TO COMMENT ON ALL THE INFORMATION. THE SAN JOSE MERCURY NEWS HAS PROPOSED SOME CHANGES TO THE CITY OF SAN JOSE, SOME OF WHICH MAY BE APPLICABLE TO THE CITY OF CUPERTINO: "MEMBERS OF THE PUBLIC SHOULD HAVE A MEANINGFUL OPPORTUNITY TO PARTICIPATE: IN DECISIONS THAT AFFECT THEM AND TO UNDERSTAND HOW THOSE DECISIONS ARE MADE." "MEETING AGENDAS SHALL BE POSTED 10 DAYS IN ADVANCE OF THE MEETING, AND ALL AGENDA PACKET MATERIAL - INCLUDING STAFF REPORTS - MUST ALSO 13E AVAILABLE 10 DAYS IN ADVANCE.