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CC 04-05-2011 f_ CUPERTINO MINUTES CUPERTINO CITY COUNCIL Regular Meeting Tuesday, April 5, 2011 PLEDGE OF ALLEGIANCE At 6:51 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 Michael Gottwald for supporting the youth in the community and for his fund - raising efforts for major charities Recommended Action: Present proclamation Mayor Wong presented the proclamation to Michael Gottwald. Mr. Gottwald read off names in memoriam and thanked those who donated over the years for his charity walks in helping to raise over $47,000. 2. Subject: Council recognition of Cupertino's Green Leaders Recommended Action: Recognize Green Citizen of the Year & Cupertino's Green Businesses, and announce Earth Day Festival Environmental Affairs Coordinator Erin Cooke explained that 2200 businesses are certified in the voluntary Santa Clara County Green Business program which recognizes those businesses that surpassed regulatory compliance by implementing sound practices that conserve energy, water, and resources while preventing pollution in the community. She also explained that 12 businesses are certified in the Green Biz Cupertino program, launched in 2010, to recognize those businesses seeking enrollment in the Santa Clara County Green Business program. Ms. Cooke noted that the purpose of tonight's presentation was to recognize those businesses not just certified in the Green Biz Cupertino program but who are also true partners in the program. April 5, 2011 Cupertino City Council Page 2 Mayor Wong presented proclamations to the Cupertino Chamber of Commerce, The Driving Machine, Inc., Park Place, and Cypress Hotel. He also gave proclamations to Cupertino staff members: Grounds and Maintenance Supervisor John Bisely, Facilities Supervisor Chris Orr, Maintenance Worker Roger Winslow, Assistant Public Works Director Roger Lee. 3. Subject: Award for the Outstanding Park & Recreation Project in California, 2010, from American Society of Civil Engineers for Stevens Creek Corridor Park Recommended Action: Present award Mayor Wong announced that this award was given to the City of Cupertino for the Stevens Creek Corridor Park. Stevens Creek Corridor Restoration Manager Gail Seeds accepted the award on behalf of the Public Works department. 4. Subject: Presentation from the Planning Commission Recommended Action: Accept presentation. Planning Commission Chair Winnie Lee gave an overview of the Commission's past accomplishments and upcoming key projects in its Work Plan. POSTPONEMENTS Mahoney moved and Santoro seconded to postpone item Nos. 27 and 29 to May 3. The motion carried with Council member Chang voting no. Later in the meeting while discussing item No. 29 further, Council concurred to hold commission interviews at 5:00 in Conference Room A. WRITTEN COMMUNICATIONS Deputy City Clerk Grace Schmidt distributed the following written communications: • A staff PowerPoint presentation for item No. 22 • A staff memo regarding video /audio service fees for item No. 23 • A revised fee Schedule A for item No. 23 • An email and attached letter from attorney Paul Albritton on behalf of T- Mobile urging Council to deny the petition for reconsideration, item No. 25 ORAL COMMUNICATIONS Yoriko Kishimoto introduced herself as the new appointment on the Mid - Peninsula Regional Open Space District, representing Cupertino and Ward II. She noted some open space projects that the District has purchased and managed, including Rancho San Antonio, Picchetti, and Fremont Older; and current projects including Mount Umunhum and Cooley Landing. John Bartas talked about carpooling at the Cupertino schools. He suggested an idea for students to be able to use a web server to organize rideshares to school. He would like to go forward with a resolution of support from Council. He said he already has a pilot website and server up and is working on getting funding. Commissioner Santoro suggested Mr. Bartas contact the Teen Commission for possible collaboration. April 5, 2011 Cupertino City Council Page 3 CONSENT CALENDAR Mahoney /Chang moved and seconded to approve the items on the Consent Calendar as recommended, with the exception of Item No. 11 which was pulled for discussion. Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Abstain: None. 5. Subject: March 15 City Council minutes Recommended Action: Approve minutes 6. Subject: Payroll for period ending March 4, 2011 Recommended Action: Adopt Resolution No. 1.1 -039 7. Subject: Payroll for period ending March 18, 2011 Recommended Action: Adopt Resolution No. 11 -040 8. Subject: Accounts Payable for period ending March 4, 2011 Recommended Action: Adopt Resolution No. [1-041 9. Subject: Accounts Payable for period ending March 11, 2011 Recommended Action: Adopt Resolution No. [ 1 -042 10. Subject: Accounts payable for period ending March 18, 2011 Recommended Action: Adopt Resolution No. 11-043 12. Subject: Development Agreement, Mimi Tsui, 10292 Orange Avenue Recommended Action: Adopt Resolution No. 11 -044 Description: Through the development agreement with the City, the applicant for a building permit for a single - family residential development will be obligated to bond and construct city- specified roadside improvements along the street frontage of their building site 13. Subject: Development Agreement, Jerry Jin -Tzong Liu and Jennifer Fang Fang, 21835 Lomita Ave Recommended Action: Adopt Resolution No. 11 -045 Description: Through the development agreement with the City, the applicant for a building permit for a single - family residential development will be obligated to bond and construct city- specified roadside improvements along the street frontage of their building site 14. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Mimi Tsui, 10292 Orange Avenue Recommended Action: Adopt Resolution No. 11 -046 Description: The property owner of this residential development agrees to grant to the City the right to extract water from the basin under the overlying property 15. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Hantyng Kenneth Hsieh and Jean Lai, 20557 Blossom Lane April 5, 2011 Cupertino City Council Page 4 Recommended Action: Adopt Resolution No. 11 -047 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 16. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Paul A. Lassa and Palmyra S. Pawlik, 21700 Alcazar Ave Recommended Action: Adopt Resolution No. 11 -048 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 17. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Jerry Jin -Tzong Liu and Jennifer Fang Fang, 21835 Lomita Ave Recommended Action: Adopt Resolution No. 11 -049 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 18. Subject: Grant of Easement for Roadway Purposes, Mimi Tsui, 10292 Orange Avenue Recommended Action: Adopt Resolution No. 11 -050 Description: The property owner of this residential development agree to grant to the City an easement for public roadway purposes, together with the right to construct, operate, repair and maintain public utilities and improvements, over a portion of the property 19. Subject: Grant of Easement for Streetlight Purposes, Vincent C. Wong Senior and Vincent C. Wong Junior, 18996 Pendergast Avenue Recommended Action: Adopt Resolution No. 11 -051 Description: The property owners of this residential development agree to grant to the City an easement for streetlight purposes, together with the right to construct, operate, repair and maintain streetlight improvements, over a portion of the property 20. Subject: Grant of Easement for Roadway Purposes, Jerry Jin -Tzong Liu and Jennifer Fang Fang, 21835 Lomita Avenue Recommended Action: Adopt Resolution No. 11 -052 Description: The property owner of this residential development agree to grant to the City an easement for public roadway purposes, together with the right to construct, operate, repair and maintain public utilities and improvements, over a portion of the property 21. Subject: Alcoholic Beverage License, Bonjour Sandwiches & Crepes, 20371 Stevens Creek Boulevard (near Torre) Recommended Action: Approve application for On -Sale Beer & Wine for Bona Fide Public Eating Place ITEMS REMOVED FROM THE CONSENT CALENDAR (above) 11. Subject: City Project, Pavement Restoration, Project No. 2009 -08 Recommended Action: Accept Project No. 2009 -08 April 5, 2011 Cupertino City Council Page 5 Public Works Director Timm Borden noted the upcoming pavement projects. Chang moved and Mahoney seconded to accept the project. The motion carried unanimously. PUBLIC HEARINGS 22. Subject: Community Development Block Grant (CDBG) funds, Human Service grants, and FY 2011 Annual Action Plan Recommended Action: Conduct public hearing and continue final approval of the funding allocations and FY 2011 Annual Action Plan to May 3 in order to complete the 30 -day review period Description: This is the first of two required public hearings regarding use of 2011 -12 CDBG funds, Human Service grants, and the FY 2011 Annual Action Plan Written communications for this project included a staff PowerPoint presentation. Senior Planner Vera Gil reviewed the staff report. Mayor Wong opened the public hearing at 7:40 p.m. Bob Campbell talked about the Senior Housi:rig Solutions and asked Council for funds to complete the rehabilitation of Phase II construction of the house. He noted that this project would serve five seniors who are residents of Cupertino and whose income is less than $1500 per month. They would be charged 30% of their income for rent. He also announced that the Cupertino Rotary and Habitat for Humanity will be doing a hole -in -one contest at Deep Cliff Golf Course on May 4 at 6:00 p.m. and invited Council to attend. Mayor Wong closed the public hearing at 7:43 p.m. Council members asked questions of staff and took no action. 23. Subject: Fiscal Year 2011/12 Fee Schedule Recommended Action: Adopt Resolution No. l 1 -053, approving the 2011 -12 fee schedule Page: 170 Written communications for this item included a staff memo regarding video /audio service fees and a revised fee Schedule A. Finance Director David Woo reviewed the staff report. Mayor Wong opened the public hearing at 8:08 p.m. No speaker cards were submitted and Mayor Wong closed the public hearing. Council members asked questions of staff and the applicant. Mahoney moved and Chang seconded to adopt Resolution No. 11 -053 accepting the fee schedule as presented but increasing the Planning, Building and Engineering fees to 3.5 %; April 5, 2011 Cupertino City Council Page 6 keep the Small Income Business License fee flat (at $65.00); and directed staff to provide a report to review the possibility of charging a time - demand based fee for Community Hall. Wong added a friendly amendment to change the fee percentage to 3% as was recommended by staff. Mahoney agreed to the friendly amendment. The motion carried unanimously. Council recessed from 8:27 p.m. to 8:37 p.m. UNFINISHED BUSINESS 24. Subject: Alternative Bridge Locations and Trail Alignments for Stevens Creek Corridor Project Phase II Recommended Action: Adopt the Base Alignment bridge location and a general trail alignment between the second row of orchard trees and the creek riparian zone for the Stevens Creek Corridor Park Phase II Page: 227 Public Works Director Timm Borden reviewed the staff report. John Benz commented about each of the alternatives and urged Council to adopt the Base trail alignment. Robert George asked Council to adopt the Base trail alignment. He showed pictures of the area from his house and how he would be affected by the other trail alignments. Ann Ng said that she is a Board member of Friends of Stevens Creek Trail and represents that board on the Stocklmeir Task Force. She noted that the Friends would be happy with a multi- use trail that goes out to Stevens Creek Blvd. She urged Council to go along with the Task Force recommendation to use the Base Plan trail alignment. Deborah Jamison, member of the Stocklmeir Task Force said that she supports the Base bridge position and trail alignment outside of the 50 -foot setback. She urged Council to give the creek at least 50 -feet of riparian woodland in Stocklmeir so nature could return. She explained about a riparian ecosystem. Bob Hirt said that he is on the board of the Stevens Creek County Audubon society and is glad the Task Force has decided to move forward. He said he supports the Bas trail alignment. Gail Cheeseman said that she is impressed with the Blackberry Farm restoration and supports the Base trail alignment. Doug Cheeseman said he has been involved with McClellan ranch and hopes to continue with the project to protect the corridor. He said he supports the Base trail alignment. Gary Bailey said that he is the Board Chair of the Stevens and Permanente Watershed Council and is pleased with the restoration of Blackberry Farm. He noted the group has no April 5, 2011 Cupertino City Council Page 7 position on a specific trail alignment but would be happy with the staff recommendation as long as there is a 50 -foot setback from the creek. Council asked questions from staff. Mahoney moved and Wang seconded to adopt the Base alignment bridge location and a general trail alignment between the second row of orchard trees and the creek riparian zone for the Stevens Creek Corridor Park Phase II project. The motion carried unanimously. NEW BUSINESS 25. Subject: Petition for reconsideration for a personal wireless service facility at 11371 Bubb Road (continued from March 15) Recommended Action: Conduct hearing and adopt Resolution No. 11 -054, denying the petition for reconsideration Description: Application: DIR- 2010 -28 Reconsideration; Applicant: Dayna Aguirre (for T- Mobile); Petitioner: Shaul Berger; Location: 11371 Bubb Road, APN 356 -23 -047; Application Summary: 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 with three panel antennas and four associated equipment boxes to be installed on an existing PG &E pole located in front of 11371 Bubb Road Page: 235 Written communications for this item included an email and attached letter from attorney Paul Albritton on behalf of T- Mobile urging Council to deny the petition for reconsideration. Senior Planner Colin Jung reviewed the staff report. Petitioner Shaul Berger said that his assumptions and T- Mobile's assumptions are different regarding height and radiofrequency (RF) levels. He said they also differ regarding the statement that the best location was found, and that he now needs to compromise. He asked Council to use the same methods that other providers use and wondered why T- Mobile can't provide the same coverage as Verizon. He said that decisions must be based on facts and not feelings. He said that Council voted without asking for technical evidence about how the antennas could work and noted that the project should have gone through a Design Review process. T- Mobile representative Dayna Aguirre said that they have made every effort to resolve the issues and reached out to the appellant and the neighbors about the electromagnetic field issue to help clarify the report. She noted that they looked at all three locations again and it is based on fact that those locations wouldn't be feasible. Linda Vista Park too far and wouldn't provide the coverage needed; Results Way was too far away; and the other location is below ground. Outside Counsel for T- Mobile Paul Albritton said that there is no new evidence that has come up to overturn the previous decision. He noted that the firm that provided the appellant April 5, 2011 Cupertino City Council Page 8 with the error of his calculations is reputable. He reviewed the State law about RF's noting that Council can't make a decision on that and there has to be substantial evidence to deny a wireless application. He explained that Council also can't make a decision that prohibits service and there is a significant gap in T- Mobile coverage. He said that they have followed all the requirements from the Cupertino Municipal Code and the General Plan and asked Council to deny the petition to reconsider. Suresh Vasa questioned how many cell companies we need to provide coverage in Cupertino. He wants 100% coverage with a single service provider as is the case with his water and power providers. Pragna Parmar asked Council to reconsider putting the antenna in a residential neighborhood and suggested the mountains as an alternate location. He said this would provide better coverage and maintain home values in the neighborhood. John Gaddy said the proposal would set a precedent to install an increasing number of towers which would affect the quality of life and nearby nature. He said the business industry is taking control of the area and Council would be supporting commerce over local residents. Rita Chao said that she objects to the proposal and cares about the community. She said that the tower would impact the environment, property values, and quality of life. Teresa Liao said that she opposes the issue because she cares for all human beings and radiation isn't good for one's health. Prasao Marayana said that aesthetic issue and safety issue need to be considered. Other cities have denied petitions so it is wrong to say that the City has to approve the permit. He read from a US EPA letter regarding the "RF radiation exposure guidelines and non thermal effects of radio frequency radiation" which is "thermally based and do not apply to chronic non thermal exposure" so the generalization of many of those guidelines to protect humans are not justified. Michael Chen said that he chose to live in Cupertino because of the good schools and neighborhoods. The City's Wireless Master Plan is ruining Cupertino by allowing T- Mobile to install antennas. He asked the Council to think about the upcoming T- Mobile and AT &T merger which would make the antenna installations redundant. Installing the antenna will cause people to become more aware of the health hazards. Leslie Fowler said that the safety of EMF antennae towers is hotly disputed in the scientific community and they shouldn't be put in a neighborhood. The cell service providers should share the antennae' s. Jei Chen said that he disagrees with T- Mobile's decision that the Linda Vista site is too far. He said that 100% coverage is not possible. He said the security of people's health has no conclusion yet but the fear of his health and safety affects his quality of life. April 5, 2011 Cupertino City Council Page 9 Vincent Tien has worked on wireless communications for the last ten years. He said that putting the tower on the hill would be more powerful and provide more coverage. The health of the residents should be considered. Willie Lu had a technical issue with the antenna height allowance. And he had emailed some questions to Council and didn't receive an answer. He wanted to know how the "worst case of .022 %" was calculated and said that 25 feet from the antenna and 15 feet from ground was a false statement. He said that T- Mobile and its partners are willfully providing false statements to the public. Madliu Gi asked Council to see from the community perspective before making the decision. AT &T will be buying T- Mobile so why can't T- Mobile share the tower that's already been approved for AT &T? She never heard the cornplete reason why Linda Vista was not being used instead. Mayor Wong asked the T- Mobile representative to answer the questions asked by the public during the public comment section. Council asked questions of staff and the applicant. Mahoney moved and Santoro seconded to adopt Resolution No. 11 -054, denying the petition for reconsideration, as presented by staff. The motion carried with Chang voting no. Chang said he voted no because he didn't like the way the process went. He said his major concern is the data that T- Mobile provided vs. what the industry provided. He also noted that the site is so close to Regnart Elementary School and he agrees with the cities that have ordinances requiring cell towers to be at least 1500 away from any school. He also said that some areas may end up with more than 100% coverage and there is a fear of unnecessary radiation. Wang also made a statement that the Council's hands are tied and they can't consider certain things in their decision, or the City may be subject to a lawsuit. 26. Subject: Department of Energy grant for an electric vehicle charging station at City Hall Recommended Action: Accept Department of Energy grant and authorize the City Manager to negotiate and execute the necessary agreements with Coulomb Technologies, Inc., and REJ Electric Company in substantially the same form as attached Page: 303 Public and Environmental Affairs Director Rick Kitson and Environmental Affairs Coordinator Erin Cooke reviewed the staff report via a PowerPoint presentation. Council asked questions of staff. Santoro moved and Mahoney seconded to accept the grant; authorize the City Manager to negotiate and execute the agreements; and directed staff to create two new parking spots for two new charging stations on Rodrigues Avenue, east of the driveway, with these conditions: April 5, 2011 Cupertino City Council Page 10 the station will be 100% grant funded; the grant will cover installation costs; and the conduit trenching costs will be paid for by the City and appropriated from City reserves. The motion carried unanimously. 27. Subject: 2011 Cupertino Bicycle Transportation Plan Recommended Action: Adopt Resolution No. 11 -055, approving the 2011 Cupertino Bicycle Transportation Plan Page: 353 Under "Postponements" this item was continued to May 3. 28. Subject: Cancellation of April 19 City Council meeting and scheduling of Budget Study Session Recommended Action: Consider canceling meeting of April 19 and schedule Budget Study Session between May 23 and June 2 Santoro moved and Mahoney seconded to cancel the April 19 meeting and schedule the budget study session at 3:00 p.m. on May 16 in the Community Hall, if possible, or the EOC if the Community Hall is not available. 29. Subject: Resignations of Fine Arts Commissioner Joelle Lieb, and Technology, Information, and Communications Commissioner William Allen Recommended Action: Accept resignations and, if the April 19 Council meeting is cancelled, direct staff to set interview deadlines Under "Postponements" this item was continued to May 3. Council concurred to hold interviews at 5:00 in Conference Room A on that date. 30. Subject: Date for study session regarding teleconferencing Recommended Action: Select May 3 beginning at 6:00 Jennifer Griffin asked Council to explain to the public what this item was about. She said she was concerned about teleconferencing and thinks it's important to have all five members present at the meeting in person. She noted that a dialogue with the public needs to happen before making a decision like this. Council concurred to agendize the item for May 3. 31. Subject: Date for City Manager evaluation Recommended Action: Set date for closed session on May 12 beginning at 5:00 PM Council concurred to schedule a closed session regarding the City Manager's evaluation on May 16 following the budget study session. April 5, 2011 Cupertino City Council Page 11 ORDINANCES STAFF REPORTS COUNCIL REPORTS Council members highlighted the activities of their committees and various community events. ADJOURNMENT At 11:52 p.m., the meeting was adjourned to May at 5:00 p.m. for commission interviews. i 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.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.