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CC 03-15-2011 k �yS. 1 93. CUPERTINO APPROVED MINUTES CUPERTINO CITY COUNCIL Regular Meeting Tuesday, March 15, 2011 CITY COUNCIL MEETING PLEDGE OF ALLEGIANCE At 6:48 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 STUDY SESSION 1. Subject: Study session regarding trail alignment for Stevens Creek Trail Corridor Project Phase II Recommended Action: Conduct study session Written communications for this item included a staff PowerPoint presentation on alternative trail alignments. Public Works Director Timm Borden reviewed the PowerPoint presentation. He highlighted the Base Trail Alignment pros and cons; Alternatives 1 and 2 — Westside Trail pros and cons, and Alignment 3 — Eastside Trail pros and cons. Council concurred to take public comment with Item No. 13. March 15, 2011 Cupertino City Council Page 2 CEREMONIAL MATTERS — PRESENTATIONS - None POSTPONEMENTS Deputy City Clerk Grace Schmidt noted that there was a request to postpone Item No. 12 to April 5. Leslie Fowler said she agreed the item should be postponed so that the experts can be available to address the cell tower before it is installed. Santoro moved and Wang seconded to postpone item No. 12 to April 5 at the request of the appellant with the concurrence of applicant. This item is regarding a personal wireless facility on Bubb Road. The motion carried unanimously. WRITTEN COMMUNICATIONS Schmidt distributed the following written communications: • A staff PowerPoint presentation on alternative trail alignments (Item Nos. 1 and 13) • An amendment to page 8 of the minutes of February 15 (Item No. 2) • A revised copy of the draft ordinance (Item No. 14) • A typed list of comments from Darryl Lum opposing the proposed change in procedure (item No. 14) • An email from Keith Murphy opposed to altering the reconsideration process (Item No. 14) Mayor Wong reordered the agenda to take up the Consent Calendar next. CONSENT CALENDAR Wang moved and Mahoney seconded to approve the items on the Consent Calendar as recommended, with the correction to the minutes of Feb. 15. Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Abstain: None. 2. Subject: February 15 City Council minutes Recommended Action: Approve minutes Written communications included an amendment to page 8 of the minutes of February 15. 3. Subject: March 1 City Council minutes Recommended Action: Approve minutes 4. Subject: Accounts Payable for period ending February 18, 2011 Recommended Action: Adopt Resolution No. 11 -033\ March 15, 2011 Cupertino City Council Page 3 5. Subject: Accounts Payable for period ending February 25, 2011 Recommended Action: Adopt Resolution No. 11 -034 6. Subject: Payroll for period ending February 18, 2011 Recommended Action: Adopt Resolution No. 11 -035 7. Subject: Approve destruction of records from the City Clerk department Recommended Action: Adopt Resolution No. 11 -036 8. Subject: Alcoholic Beverage License, Bombay Oven, 20803 Stevens Creek Boulevard (near Saich) Recommended Action: Approve application for On -Sale Beer & Wine 9. Subject: Alcoholic Beverage License, Shanghai Garden Restaurant, 20956 Homestead Road, Suites A2 & A3 (Oakmont Square at Homestead & Stelling) Recommended Action: Approve application for On -Sale Beer & Wine 10. Subject: Quitclaim Deed and Authorization for Underground Water Rights, SI 24, LLC, 10600 North De Anza Blvd Recommended Action: Adopt Resolution No. 11 -037 Description: The property owner of this commercial development agrees to grant to the City the right to extract water from the basin under the overlying property 11. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Suresh R. Tammana and Subha P. Tammana, 22140 Hibiscus Drive Recommended Action: Adopt Resolution No. 11 -038 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 ITEMS REMOVED FROM THE CONSENT CALENDAR (above) - None PUBLIC HEARINGS — None UNFINISHED BUSINESS - None NEW BUSINESS 12. Subject: Petition for reconsideration of the City Council's November 29, 2010 decision to deny an appeal of a Director's Approval for a personal wireless service facility at 11 371 Bubb Road (continued from February 1) Recommended Action: Continue to April 5 at request of appellant with the concurrence of applicant Under "Postponements" this item was postponed to April 5. March 15, 2011 Cupertino City Council Page 4 13. Subject: Alternative trail alignments for Stevens Creek Corridor Project Phase II Recommended Action: Authorize staff to proceed with the bridge and trail alignment as generally depicted in the approved June 2006 Stevens Creek Corridor Park Master Plan Written communications included a staff PowerPoint presentation on alternative trail alignments. Deborah Jamison said that she could speak on behalf of the entire conservation community in urging Council to keep the creek and the riparian plant restoration a high priority in this project. She also urged Council to put the trail alignment not too close to the creek and riparian woodland because human presence would have an impact on wildlife use in the area. Donna Austin said that she wants to see the creek restored and the trail built, but she was concerned that the trail not be made of cement due to irrigation and tree root issues. Tom Dyer, Chair of the Stocklmeir Trail Study Committee, said that the committee has been meeting with the City for over two years regarding the proposed property and trail alternatives, and participants have included adjacent homeowners, the Historical Society, and multiple environmental entities. He noted that the committee, with support from interested school district educators, created a Legacy Farm concept which would enable community partnerships for building and sustaining a living open space with emphasis on K -12 education. He noted that the committee looks forward to completing the architectural review process before final trail locations are made. Ann Ng, Stevens Creek Trail Board member, said that the group is neutral on the trail alignment and thanked Council for building the trail. Leslie Fowler said that her kids love to walk to school, and with the trail alignment hopefully more parents will allow their kids to walk to school as well. She asked Council that when future projects are planned, neighborhoods are not dissected by major roads. Robert George, President of the Meadows of Cupertino Homeowner's Association, said the group supports the City's efforts to improve the Stevens Creek Trail habitat, and the trail through the orchard should offer a pleasant experience for the hikers while retaining a peaceful and secure environment for adjacent home owners. He urged Council to continue the agreement to maintain a 100 -foot between the trail and the resident property lines. John Buenz said he was a member of the original Stevens Creek Task Force and urged Council to keep the 100 -foot setback from the property owner line and the trail. He noted he was opposed to Alternative #1; Alternative #2 would be acceptable; he had no opinion about Alternative #3; and he definitely approved of the Baseline Alternative which was closer to what the original Task Force had in mind. March 15, 2011 Cupertino City Council Page 5 Darryl Stow, President of the Cupertino Historical Society, suggested that instead of having the trail go through the orchard, to have it go through the west side of the creek instead. He said this was the most beautiful part of trail and the least impact to neighbors, the golf course, and the orchard itself. Council asked questions of staff and the previous public speakers and discussed the Base Trail alignment and the Alternative Trail alignments. Santoro moved to (1) Put the bridge downstream of the pump house; (2) Place the trail between the red lines (as noted on the staff PowerPoint) and the second row of trees; and (3) Direct staff to look at the trail coming out on Stevens Creek. Mahoney seconded for discussion and added a friendly amendment to make the movement of the bridge the first priority, and look at both placement alternatives in regards to the golf course. Santoro accepted the friendly amendment. Staff will come back with cost and design analysis on April 5. The motion carried with Chang voting no. Mayor Wong reordered the agenda to take up Oral Communications next. ORAL COMMUNICATIONS Leslie Fowler said she couldn't attend the Lehigh vested rights meeting but watched it on TV and was upset that people only had two minutes to speak. She noted that people had planned their three - minute presentations and she thought it was rude to allow them only two minutes. She said that residents have a right to speak for three minutes regardless of whom the mayor is or the circumstances. Michaela Miller said she works for Silicon Valley Faces and noted that they are hosting a Community Voices: Dinner & Dialogue on April 5 from 7 -9 PM at the Levy Family Campus in Los Gatos. She explained that the event is to bring together Asian American immigrants and non- immigrants in the region to encourage community involvement and support of each other. Council recessed from 8:45 p.m. to 8:50 p.m. Richard Adler from No Toxic Air began a PowerPoint presentation which was originally made by the Office of Mine and Reclamation State office on February 11 to the State Mining Board in Sacramento. He noted that the Lehigh Hansen Quarry has been out of regulatory compliance for 10 years. The presentation highlighted a brief history including: the Reclamation Plan approved in 1985; landslide issues at the quarry in 1987 - 2001; an Emergency Repair Proposal in 2002; Office of Mining Reclamation inspection of the plant in 2005; and a public hearing in 2006. Paula Wallace continued the PowerPoint presentation began by Mr. Adler highlighting: the Notice of Violation/Order to Comply in 2006 to be achieved at the end of 2007; Amended Reclamation Plan application in January of 2007 which was rejected by the State as insufficient requiring a Comprehensive Geotechnical Report; a Revised 45 -Day Notice for compliance; a 24- month extension granted to the quarry for coming into compliance; illegal dumping by the quarry March 15, 2011 Cupertino City Council Page 6 in 2008 at a site which is now called the East Materials Storage Area (EMSA) throwing the compliance timeline off to now include EMSA; and a Comprehensive Amendment in 2010. Rod Sinks continued the PowerPoint presentation with what is happening currently with the compliance issue. He noted that the quarry has no approved Reclamation Plan and does not qualify to be on the State's AB3098 list which are quarries in good standing allowing them to bid on publically funded projects. He said that Lehigh has been supplying cement and aggregates to government contracts for almost 10 years in violation of State law. He asked Council to send a letter to the State Office of Mining Reclamation demanding Lehigh be taken off the AB3098 list and that the State Mining Board take Lead Agency status away from the County of Santa Clara. More information is at www.cupertino.org and at www.notoxicair.org. The City Council continued with the New Business portion of the agenda. 14. Subject: Municipal Code amendments regarding reconsideration of items by City Council Recommended Action: Conduct first reading of Ordinance No. 11 -2075 Description: "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" Written communications included: • A revised copy of the draft ordinance • A typed list of comments from Darryl Lum opposing the proposed change in procedure • An email from Keith Murphy opposed to altering the reconsideration process Assistant to the City Attorney Teresa Zueger reviewed the staff report and Council asked questions from staff Keith Murphy said he is a two -time loser of the reconsideration process but is glad he participated because he found it helpful, educational, and a great dialogue. He urged Council to consider what would happen if two Council members conflicted on a topic and one were appointed to the sub - committee. That Council member could take the whole process hostage and essentially allow a reconsideration to pass or fail. He said that the reconsideration process is a benefit to the community and would hate to see it go back to a potential adversarial position. Jennifer Griffin said that she has watched the reconsideration process evolve and recommended to leave the process alone. She noted that Cupertino isn't big enough to have sub - committees and the public needs to be able to participate and have things out in the open and not behind closed doors. Darrell Lum said that the proposal is complex and not very workable. He suggested that the sub - committee should only be an advisory to the petitioner and that the petitioner March 15, 2011 Cupertino City Council Page 7 should have the option to continue the reconsideration process to the full City Council. He also noted that the sub - committee shouldn't be composed of the Council members. Tom Hugunin said that there is a transparent process today and the Council from 1999 that approved the reconsideration process -never envisioned a change to the part of the Municipal Code by adding a Section C. He noted that many citizens are engaged in the process and adding Section C would be cumbersome, and citizens may be confused by the process. Ned Britt said that he's uncomfortable with using two people as a gatekeeper to decide if the reconsideration should come forward. He suggested using a non - binding process and the petitioner should be able to choose one of the sub - committee members. He also noted that the petitioner should only have to pay half the money before the committee meets and then choose to stop there or pay the rest, take the risk, and have the rest of the Council hear the petition. Robert McKibbin said there was and still is a valid reason why the reconsideration process is in place and it has served the City well since 1999. He said that one of his concerns is that the main argument staff has it that it's time consuming. The Democratic, open process is historically time consuming. He asked questions such as would the sub- committee process be televised, would it be open to the public, and how would two members be selected. He was concerned about making decisions behind closed doors. He urged Council to consider the reconsideration criteria and noted that they are not black and white and said he wanted to keep the process the way it is. Council asked questions of staff and further discussed the issue. Council concurred to direct staff to research whether its permissible to place a cap on the total time limit for reconsideration items and can the process be separated into two steps: 1. Have any of the five criteria been met; 2. If no, the petition will not be considered further and if yes, a full hearing will commence. ORDINANCES 15. Subject: Second reading and adoption of Municipal Code amendments to the Parking Ordinance Recommended Action: Conduct second reading and enact Ordinance No. 11 -2074 Description: Municipal Code Amendment (MCA- 2010 -05) to Chapter 19.100 and Chapter 19.08 to clarify language regarding storage and parking of heavy equipment and planned non - operational vehicles in residential zones. "An Ordinance of the City Council of the City of Cupertino amending Chapter 19.100 (Parking Regulations) of the Cupertino Municipal Code with associated amendments to Chapter 19.08 (Definitions Ordinance) related to clarifying language regarding storage and parking of heavy equipment and planned non - operational vehicles in residential zones" March 15, 2011 Cupertino City Council Page 8 The Deputy City Clerk read the title of the ordinance. Mahoney moved and Wang seconded to read the ordinance by title only, and that the Deputy City Clerk's reading would constitute the second reading thereof. Ayes: Chang, Mahoney, Santoro, Wang and Wong. Noes: None. Absent: None. Mahoney moved and Wang seconded to enact Ordinance No. 11 -2074. Ayes: Chang, Mahoney, Santoro, Wang and Wong. Noes: None. Absent: None. STAFF REPORTS — None COUNCIL REPORTS Council directed staff to research the possibility of joining a Council meeting remotely if a Council member could not attend the meeting in person. Council Members highlighted the activities of their committees and discussed various community events. ADJOURNMENT At 10:52 p.m., the meeting was adjourned. REDEVELOPMENT AGENCY MEETING At 10:53 p.m. Chair Gilbert Wong called the regular Redevelopment Agency meeting to order in the Council Chamber, 10350 Torre Avenue, Cupertino, California, and led the Pledge of Allegiance. ROLL CALL Redevelopment Agency members Present: Chair Gilbert Wong, Vice -Chair Mark Santoro, and Redevelopment Agency members Barry Chang, Orrin Mahoney, and Kris Wang. Absent: none. A. Subject: February 15 Redevelopment Agency Minutes Recommended Action: Approve minutes Wang moved and Mahoney seconded to approve the minutes. The motion carried unanimously. ADJOURNMENT At 10:55 p.m., the meeting was adjourned. Grace Schmidt, Deputy City Clerk March 15, 2011 Cupertino City Council Page 9 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.