101-Draft Minutes.pdf
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
CITY OF CUPERTINO PLANNING COMMISSION
DRAFT MINUTES
6:45 P.M. July 12, 2011 TUESDAY
CUPERTINO COMMUNITY HALL
The regular Planning Commission meeting of July 12, 2011 was called to order at 6:45 p.m. in the
Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA., by Chairperson Winnie Lee.
SALUTE TO THE FLAG
.
ROLL CALL
Commissioners present: Chairperson: Winnie Lee
Vice Chairperson: Marty Miller
Commissioner: Paul Brophy
Commissioner: Clinton Brownley
Commissioner: Don Sun
Staff present: City Planner: Gary Chao
:
APPROVAL OF MINUTES:
1. Minutes of June 28, 2011 Planning Commission meeting:
MOTION: Motion by Com. Brownley, second by Vice Chair Miller, and carried 5-0-0 to
approve the June 28, 2011 Planning Commission minutes as presented.
WRITTEN COMMUNICATIONS: None
ORAL COMMUNICATIONS: None
POSTPONEMENTS/REMOVAL FROM CALENDAR: None
PUBLIC HEARING
2. MCA-2011-03, EA-2011-05 Limited review of the Single Family Residential (R1)
City of Cupertino Zone; Municipal Code Amendment to Chapter 19.28,
Citywide location for a limited review of the requirements for sloped
single-family lots, the two-story design review process,
public noticing and story poles. Postponed from the June
28, 2011 Planning Commission meeting; tentative City
Council date: August 2, 2011
George Schroeder, Assistant Planner, presented the staff report:
• Reviewed the background of the application; In April 2010 the City Council included the
review of the slope lot standards on their work program; and in February 2011 the Council
initiated a limited review of the ordinance of the story poles, two story design and the public
noticing, along with the slope lot standards. In May a community workshop was held to
discuss what is being considered for the ordinance. Staff has clarified the applicability of the
Cupertino Planning Commission July 12, 2011
2
amendments regarding the single family sloped lots; fixed inconsistencies in the draft
reformatted ordinance and removed the option to apply additional RHS for a sloped lot
development standards to the sloped lots.
• He reviewed the history of the single family ordinance enacted in 1971 which has undergone
many changes in recent years; in 1999 the two story design review process was initiated as
well as standards for sloped lots over 30%; in 2005 the city codified story poles for all two
story projects; and in 2007 the city adopted additional standards for several sloped lots near the
Lindy Lane area.
• He reviewed the comparison with six similar communities, as outlined in the staff report. Staff
looked at some other cities in the area with a mix of commercial and residential properties
similar to Cupertino. Half of the cities require design review as a discretionary approval and
half not to have noticing requirements; only one jurisdiction requires story poles and generally
floor area ratio is around 45%; some cities have varying standards based on the lot size such as
Los Gatos and Mountain View.
• For the existing two story design review, staff does a preliminary review for conformance to
the R1 ordinance and the design guidelines. For second stories that are greater than 45% of the
first floor, there are more stringent reviews, there are several design principles that have to be
met in order for the project to be approved. In addition, the city’s architectural consultant
reviews it for conformance with that, making sure that it is identifiable architectural style. It is
then sent out for neighbor review and a two week comment period; followed by the approval
and appeal period, which is 14 day/2 week period. Based on comment from the public and
staff’s experience with dealing with two story projects in the past, most people are concerned
with the size of the second story floor area and also the proximity of second story windows to
the property line.
• He reviewed the comments from the workshop, and the options for design review as outlined
on Page 9 of the staff report. He noted that all projects would still have to comply with
development standards and two story design guidelines in the ordinance, regardless of what
option is considered. The public noticing requirements and options were also reviewed, as
well as story poles and standards for sloped single-family lots as outlined in the staff report.
• Staff recommends that the Planning Commission address each issue/topic with its options and
take straw votes on each of the following items for final recommendation to the City Council,
including design review, public noticing, story poles and standards for sloped lots.
• Staff answered Commissioners’ questions.
Vice Chair Miller:
• Suggested that the larger the second story, the less ground you are disturbing in a sensitive area
such as a sloped area; the more restrictions you put on the second story, the less likely someone
is going to build it. He said if the objective is to limit the amount of disturbance in an
environmentally sensitive area, he would not want to discourage second stories in that way
Gary Chao:
• In response to a question if singling out the 15 lots could be a case of spot zoning, he said he
did not have a comment; it has gone through a public process with the City Attorney and City
Council and it would be a question for the City Attorney who is not present at the meeting.
Chair Lee opened the public hearing.
Lynn Faust, Cupertino resident:
• Said she sent an email expressing her concerns. Relative to the May 24 meeting held, there
were only 15 people present. She suggested that the next meeting on the issue be held in mid-
Fall so that more people would be able to attend and provide input; as during the summer
months residents and their families have more conflicts and are unable to attend the meetings.
(Staff said most of the 15 attendees at the May meeting were residents.)
Cupertino Planning Commission July 12, 2011
3
• Relative to site signs, and story poles, she said that generally site signs are at the street edge of
the property so people going by can see them. However, the development at issue is on the
back side of 120 acres and the majority of the homes would not see a sign on the street, it is a
two lane road frequented by cyclists and big trucks. She stated that story poles would be seen
from a wider variety of areas; and requested that the city retain story poles so that people on all
sides of a property being developed would have that view.
Jennifer Griffin, Rancho Rinconada resident:
• Said it was the 16th year of fighting against over-development. The fight is what drove the
Rancho Rinconada neighborhood out of the county, with over-aggressive building; lots are
5,000 square feet, some under. Rancho Rinconada and Loree Estates tried valiantly for three
years to get out of the county, Rancho Rinconada was annexed to Cupertino in 2000. Street
trees were cut down, there were homes that were too big for the lot, and residents were
promised certain promises when they came into Cupertino.
• Said it was important to remember that the current R1 ordinance is there because of past
history; everything in it was fought hard in the City Council in years past to get story poles,
neighborhood noticing, two story design review, and Cupertino has been fighting the slope
battle for years. She said for the first time in many years, there is peace in the neighborhood;
the current R1 ordinance is working; the story poles are working and story poles are needed all
three ways around, you can see where balconies are, how tall it is; if the builder can’t keep his
story poles up, he shouldn’t be building. Leave it as is, and make sure not to remove story
poles in the neighborhood hillsides.
Jim Yee, VTBS Architects:
• Said that relative to the city’s design review process, he was concerned about design; most
communities are looking for more traditional design in new developments. Traditional
architecture is generally more vertical, and doesn’t have the wedding cake look; the examples
shown in the R1 guidelines are more vertical and higher than the .45 first to second floor ratios.
• One of the things that would be more helpful is a more efficient streamlined process to go
through the design review; there is not a lot of support for getting rid of that; but there are ways
to make it more streamlined. Some speakers support the story poles, but from a professional
standpoint, they don’t depict the real character of the house; it is part of the scale of the home
and the actual details make the home what it is; you look at some of the traditional
architecture; they tend to be more boxy and vertical, and that is not seen in a story pole. The
3D digital simulation provides more sense of what the house is going to look like; it is really
through perspective or more of a 3DM digital simulation; nowadays relative to some of the
questions raised about perspectives vs. 3D; most perspectives in the past were hand done;
presently they are derived off wire frames, CAD files projected 3D and they sketch on top of
that, while 3D simulation is done digitally; and are accurate. Those are the main differences.
David Schie, resident:
• Asked what Lindy Lane was given an exception for; and whether it should be the entire slope
or part of the slope. He said they live on Ricardo by the reservoir; and every year there are
huge floods that come down the hill, it has changed despite all the theoretical things they did
for the water; it has changed how the water flows. There are 120 acres of landfill by Stevens
Creek and they are concerned about the water and the environment; does adopting the
measures which extend the allowance that was given to that other area somehow make it easy
for the developers to develop that 120 acres next to Stevens Creek.
• The 120 acres is in the City of Cupertino, purchased for a school a number of years ago and
they did not get the zoning for it. There is a huge canyon coming down off the mountain, but
then it goes flat. They want to go from 5 acre residential to much smaller lots, and there is
likely going to be a push for a zoning change and to get a lot of measures through to allow
Cupertino Planning Commission July 12, 2011
4
them to do that and make it economical. Said they were concerned about the environment;
there are many slope issues on that lot and also water stability. They are concerned about what
might happen if some of these measures and that other area allowed easier building of areas
that perhaps shouldn’t be built, and it may have an impact on their ability to change that
zoning. The area is RHS.
Gary Chao:
• Noted that the area is already under the city’s residential hillside standard; Lindy Lane received
some standards from the RHS to address the development on hillside, but the area referenced is
already located in RHS which is the city’s hillside rule which has the full protection of
development measures that would be considered for sloped lots; none of the discussion would
change the density or zoning for the area.
Vice Chair Miller:
• Said that it is the most restrictive zoning in the city that they come under; and it is highly
unlikely that it would change.
Frank Sun, resident:
• Relative to the sloped lots, said he would support a coherent ordinance to apply to the entire
city.
• Relative to the two story building design, he said his neighborhood went through a lot of
building and he did not benefit from the story poles. He felt the color 3D pictures provided
more information, as well as talking with the neighbors and the architect.
• Said he supported removal of the story poles, and avoiding lengthy and costly review; the
money would be better spend on the design of the building and giving more freedom to the
architect, making the building and city more interesting. He supported less review, less
restrictions on the second story. With a larger second story, there would be a smaller footprint
for the whole building, consuming less land and providing more opportunity to mitigate any
privacy concerns and more space for planting trees. The size and location of the windows can
be regulated which has an impact on the neighbors.
Gary Chao:
• Relative to the two story rule, he clarified that when the Lindy Lane rule came to be, the R1
ordinance had a limitation on maximum second floor to ground floor ratio; at the time it was
45%, anything over 45% required an exception. Since then, that has been opened up.
Technically the two story policy is that there is no cap on second floor, second to ground floor
ratio. He said he agreed that if people want to reduce the footprint and build a larger second
floor, and if the design is consistent with that type of style, now under the current ordinance, it
can be done. He said if they want to do it, to make sure the design is done the way the architect
mentioned, since there are certain styles that lend itself to a more boxy look and that rule has to
be consistent throughout.
Chi- I Lang, resident:
• Said he felt that the ordinance for sloped lots should apply to the entire city.
Susan Chen, local architect and resident:
• Relative to the two story review process, there are presently three phases; the planner, the
consultant architect review and the neighborhood review; which is time consuming, costly and
not without conflict between the three processes. She suggested consolidating the three phases
together; requiring the planner and local architect to meet at the Planning counter face to face
to have an initial review. The planner reviews the regulations, architect reviews the style and
the neighborhood reviews the privacy issues, which will shorten the timeframe and save
money. She suggested that the architect meet at the planning counter with the city
Cupertino Planning Commission July 12, 2011
5
consultant/architect; sometimes his suggestions are different from the planner’s; there is no one
style in Cupertino.
• Suggested eliminating story poles; they are dangerous, costly and don’t carry details about the
house design; don’t answer questions neighbors may have about balconies, windows, and their
impact on neighbors. Suggested a better solution to show the neighbors what happened about
the design; encourage better communication between designer, architect, owner and with the
neighbors. Currently there are many issues with the plan review process; hopefully the
meetings can change that.
George Novitsky, Associate Designer for Susan Chen:
• Said he had encountered many problems with story poles when working on projects in Los
Gatos. One of the concerns from neighbors and the review process through the planning related
to the house design and how it will appear. He said it does not capture the actual building and
how it appears to the neighborhood, and adding renderings or front elevations to the process of
letting the community know what kind of architectural projects could be put up in the original
place of the existing house would actually improve the neighborhood response and the process
of the planning review.
Chair Lee closed the public hearing.
Staff requested that straw votes be taken on each item for an accurate tally to forward one
recommendation of changes to the Council to be applied to the R1 ordinance.
TWO STORY DESIGN REVIEW:
Com. Brophy:
• Said he felt there were a number of aspects in their planning review process for homes that are
unduly complicated and provide relatively little value. However, they should be viewed in the
context of the fact that as Jennifer Griffin said the basic problem is they allow too much house
for a given sized lot. He said shortly after he joined the Planning Commission they
unanimously voted to recommend to Council that they consider reducing the maximum FAR
on R1 lots and the Council unanimously decided against it. This time around they have given
the Commission a limited single-family residential review so they have to make any decisions
in the context of what the ordinance is in terms of density and buildout. He said he felt the
benefits of the design review process are not worth it, but given the limits and the large size of
homes allowed in the R1 zone, he preferred keeping the existing design review requirements.
Vice Chair Miller:
• Said his opinion differed slightly; the current design review is in some cases overly restrictive,
particularly for homes over 45%. For 44% there is one review and for 45% or 45.1% you have
to provide a known architectural style; the Director of Community Development can arbitrarily
decide there is or is not enough architectural relief, you are required to provide four sided
architecture. Said that on small lots, they require great architecture or extra effort in terms of
four sided architecture and then ask that the applicant put up dense landscape screening around
three of those sides so that nobody ever sees it, and he was doubtful of how that serves a good
purpose.
• Presently the review is done by both staff and a city architect and his concern is that staff in
general does not have architectural training but yet they are making judgments on architectural
features of the home. He suggested that staff confine their comments to making sure that the
specs of the house meet the ordinance and the design guidelines and not render opinions on
which types of relief or architectural features are preferred or not preferred and that be left to
Cupertino Planning Commission July 12, 2011
6
an architect.
Cupertino Planning Commission July 12, 2011
7
• He said he was not necessarily opposed to architectural review but felt that flexibility should
allow the applicant to choose his own architect for the review rather than staff do it. There
have been some remarks from people that some planners differ on what is acceptable and not
acceptable. He said he had concerns with the way the process is carried out; an architectural
consultant who manages some 15 or 20 cities and does architectural review for a very large
number of cities, doesn’t spent a lot of time doing architecture.
• Said he would rather have the applicant hire an architect who is qualified to do the architectural
review; but if he doesn’t hire an architect then for some of the larger second stories, they
require that there is architectural review but it be done by an architect of the applicant’s
choosing.
• Said in his research he found that Mountain View doesn’t require any architectural review at
all, and even Cupertino’s Director of Community Development who once worked there said in
her opinion the home designs in Cupertino are not any better than the ones in Mountain View
where they don’t do any architectural review of second stories.
• There is considerable evidence to suggest that architectural review is either not warranted or
we should allow further flexibility by either substantially increasing the threshold as Jim Yee
suggested and/or allowing that the architectural review be done by an architect of the
applicant’s choosing so that there is more flexibility and that under all circumstances the staff
review of architecture should be eliminated and staff’s comments because they are not
architecturally qualified should be limited to making sure that the home meets all the
requirements of the ordinance and the ordinance of the guidelines.
Com. Brownley:
• Have been discussing rights or responsibilities of home owners allowing them to have
maximum design discretion within the ordinance and guidelines to build the home of their
dreams in the city and things related more to this process and that are relevant to all residents
of Cupertino having to do with reducing the length and cost of the approval process. There are
others such as visual compatibility of the home with the neighborhood; and have heard many
objectives from colleagues and from residents to use to evaluate the alternatives being
discussed; and based on what is in the staff report and comments from city residents, tend to
agree with some of the alternative proposals that Vice Chair Miller was making on ways to
shorten, simplify and streamline the design process.
• Said he was in favor of modifying significantly the design review process to make it more
simple and streamlined, or discussing using it for the larger homes with windows and balconies
that are closer to property where privacy concerns may become more relevant.
Com. Sun:
• Relative to the Planning Commission members, they listen to the public and also respect each
individual; they build their house to maintain their individual architectural style; and try to save
the city’s budget and money to give more freedom to the architecture, and then go through the
public hearing and other notification procedures to get feedback about the community.
• Said he concurred with Vice Chair Miller’s preference.
Chair Lee:
• The wedding cake style is more prevalent the last few years, it is disturbing to know that some
people are building out their first floor maximum to 45% FAR for the wedding cake look for
adequate second floor space. As said by Com. Brophy, it is not intended for the Council to
limit FAR, it is not popular and not something that should be done, but there could be
incentives to provide for if a homeowner wanted to build a FAR at 35%.
• Perhaps they could have less stringent requirements for the second floor since they are keeping
the FAR at 35%; the second floor to first floor ratio could be increased, the threshold presently
with the second to first floor ratio is 45% and then it triggers more stringent requirements and
design review and offset, etc.
Cupertino Planning Commission July 12, 2011
8
• Said she agreed with Vice Chair Miller and relative to the trigger for the trigger for the second
or first floor ratio, felt it should be increased to about two-thirds.
• Flexibility is important, picking their own architect for the design review and then having more
stringent requirements if the owner wants to build a 45%; building a second floor to first floor
ratio of over 2/3 for all R1s; it could be more stringent with the review so that it does not
appear so boxy.
Com. Brophy:
• Said that having your own architect do design review for your project, is similar to asking your
own attorney to judge the validity of your case. It is highly unlikely that a hired architect will
switch to a design review hat and say that he finds something unsatisfactory; so at that point
you might as well just eliminate the design review process.
Vice Chair Miller:
• The same can be said for staff; if staff hires an architect he does what the staff wants.
Com. Brophy:
• Said the idea is he is supposed to be an independent; you are saying that for the most part staff
doesn’t have architectural training so they hire a third party independent person. It is more like
hiring an arbitrator, it is not like hiring your own attorney to tell you whether you are right or
wrong.
Vice Chair Miller:
• Just because staff doesn’t have architectural training, doesn’t stop them from having
architectural opinions.
Com. Brophy:
• Said he did not understand why they would have design review.
Vice Chair Miller:
• Said he was not in favor of design review; however, as a compromise suggested more
flexibility in who does the review.
• Said he supported eliminating it entirely as he was not sure that it added anything to the
process. Presently there is no architectural review for anything under 45% on a second story
and there have been no issues with that. As suggested by a speaker, what they are asking for is
more traditional architecture where the styles are more vertical; yet in Cupertino they are
limited. Even the current process is so onerous for second stories that most people try to avoid
them at all costs because of the time, cost, money and rework that goes into having to get the
review done by multiple levels of people and everybody has different opinions. Architecture is
an art, not a science; and because it is an art, it causes great differences among people’s
feelings about beauty being in the eye of the beholder and so is architecture.
• He said he was concerned about the architectural review; as two architects looking at the same
building can differ in opinion; one will say it is not very good and the other will say it is a
masterpiece. Where is the value??
Com. Brophy:
• Concurred, but said that as long as they have large homes on small lots there was no way
around it, and if people wish to avoid the process by building one story homes that do not
visually infringe upon their neighbors, that is one way to avoid the review process.
Vice Chair Miller:
• Said that was true, but they had multiple mechanisms to address the issues of privacy and
Cupertino Planning Commission July 12, 2011
9
houses being too close, and one is by the setback rules and the second story setbacks are more
stringent than the first story setbacks, specifically for that purpose. The major issues that
people are concerned with relate to either the closeness of two buildings and the closeness of
the second stories and/or if you are in a one story house and you are living next to someone
who is building a two story house, you are concerned with privacy and the potential of
sufficient access to light; that is what the setbacks are intended to address. There is also part of
the ordinance which still has building envelopes in it; if you are talking about one story houses,
you can’t have them too big because you are limited by a building envelope as an overall
restriction. They are trying to get it at multiple levels and said he was not sure they are all
necessary.
Com. Brownley:
• Said he wanted to make sure they were still talking about things that are being reviewed by
staff; it is in the ordinance, in the guidelines, and they will be reviewing it through the planning
and building permit processes, looking at it through the entire process.
Vice Chair Miller:
• Said the only thing being discussed is trying to provide either more flexibility to the most
subjective part of the ordinance; there is nothing subjective about the ordinance that says you
have to have specific setbacks, there is an entire set of architectural relief guidelines and you
get to chose among that set; but on the other hand it is not appropriate for staff to say “This is
the one I want you to use on this building”. He said he wanted to eliminate that, since it causes
the hardships.
• Relative to Chair Lee’s suggestion, if architectural review is eliminated that is fine; if there is
an argument in favor of some, he recommended that they provide either flexibility in the
architect who gets chosen and/or raise the percentage as Chair Lee suggested. As a straw vote,
he said he voted for eliminating the architectural review.
Com. Sun:
• Concurred with Vice Chair Miller.
Com. Brophy:
• Voted for No. 3 to keep the existing design review requirements.
Chair Lee:
• In favor of removing the review process as well.
Com. Brownley:
• Voted for No. 2
Summary: 4-1 vote
PUBLIC NOTICING:
Noticing Radius:
• Currently it is keeping the existing requirements which is 300 feet for the larger two stories
over 35% total; and the exception projects, and adjacent noticing for smaller two story projects
under 35% FAR as well as minor residential projects which includes second story balconies
and most first story projects encroached into the setback.
Vice Chair Miller:
• Said in the past, most of the issues related to people being surprised by what is happening on a
piece of property and those issues disappeared when more noticing was done. However, it is
Cupertino Planning Commission July 12, 2011
10
understandable that the people most concerned are the people who are adjacent to, or are
visually impacted by the property; it seems sensible to limit the noticing to the people directly
impacted by what is going on at the property. Said he supported mailing out the plans;
however just the site plan and elevations as there is no reason for the neighbors to be reviewing
where the internal rooms are located or the design of bathrooms, etc. They need to know
where the windows are located relative to their house to address privacy issues and need to
understand the site plan to understand the proximity of the structure to their homes, but design
and location of rooms is the homeowner’s decision.
• Said it was important to provide noticing, and he had no objections with the noticing; however,
he questioned the need to provide notice beyond the realm of where people are really
interested, which is about a block or two away. Do those residents really care what is going
on; what they cannot see, or touch? Noticing is a good thing because it lets people know what
is going on and when people are not surprised, they are more receptive; problems arise when
the people are surprised. He added that any house adjacent to the property should be included
in the noticing; everybody within the vicinity of where that structure is going to be and any
property that is touching the property, needs to be noticed.
• Relative to noticing materials he supported Option 2A and also felt that it was a good idea to
have the materials available online so that people could find further information if desired.
Com. Sun:
• For public noticing, the two issues are noticing radius and noticing materials. He said relative
to the noticing radius, he supported what other adjacent cities were doing by sending notices to
people 400 feet from proposed project instead of 300 feet. Relative to what kind of materials
to send out, he said he supported sending the notice only and have the plans available in city
hall and/or on the internet for interested parties to access. It would save money for the people
involved and be a more efficient process.
• Supports 2B and 1A for noticing radius.… noticing radius supports 1A
Com. Brophy:
• Said relative to radius, he supported Option A, notifying adjacent and across the street projects;
for plan sets, supported Option A and the site plans and elevations to adjacent and across the
street neighbors, and require site sign.
Com. Brownley:
• For noticing radius, there is a distinction between people who are adjacent and across the
street, vs. people who are further away; it is important to notice people who are nearby. Said
he supported having materials available online when people can access them; he concurred that
neighbors do not have the right to comment on the inside of the house and do not need that
information, and some people have commented that they have difficulty in reading and
understanding some documents; in reality they do not have the need to have access to those
documents.
• Said he supported noticing radius 1A, adjacent noticing and across the street, but for the site
plans, it doesn’t include all the additional design materials, just the site plan.
Chair Lee:
• Said she felt it was important to notice adjacent and across the street neighbors with site plan
STORY POLES:
Com. Sun:
• Said he preferred the visual renderings and 3D simulations over the story poles, because the 3D
design depicted the design of the building and how it would look and whether a neighbor
would be impacted or not.
Cupertino Planning Commission July 12, 2011
11
Com. Brownley:
• Said he agreed with Com. Sun; the goal is to reduce the length and cost of the review process,
and they are trying to show what the upcoming project is going to look like, and found that the
new color renderings and 3D simulations provide a more valuable depiction of the proposed
home. Some residents have also reported damage to homes in putting up story poles. The city
is trying to signal what the upcoming project is going to look like. He said if the 3D simulation
provides more reality or actuality, he would favor that more than color.
Com. Brophy:
• Said he supported the removal of the story poles; and to leave it up to the applicant to provide
whichever one he wanted.
Vice Chair Miller:
• Said it was acceptable for the applicant to decide which option to provide; and he noted that
even in the color perspective renderings you can also get the adjacent house as well in the same
rendering. Said in the 3D simulation, the house could only be seen on one side, there would
have to be two simulations to see the adjacent houses on both sides; that would tend to be the
case where the rendering is with a perspective as well, but both of them can provide a view of
what at least one side neighbor, the house on one side and the street look like. He said he
supported removing the story poles and as Com. Brophy suggested, allowing the applicant to
chose either 3D, photo simulation or color perspective.
Chair Lee:
• Supported removing story poles and have the applicant on the sign provide the site plan and
elevations.
SLOPED LOTS:
Chair Lee:
• Items of discussion to include the grading, the fencing, the FAR and second story, tree removal
and retaining walls, and any additional slope standards.
Com. Brophy:
• Said at the beginning of the discussion he asked what the problem was that they were
attempting to solve and after listening to the discussion, he still did not understand how
additional lots need to be covered under the hillside zoning ordinance. He recalled that a few
months ago he spoke with a former Planning Commissioner from the 90s when the hillside
zoning ordinance was enacted and she shared that when it was enacted they were told that they
estimated that 15 to 20 lots would be affected by it. Instead it has grown and to now add it to
hundreds of additional lots beyond those in RHS and the 18 lots, the R120 lots over by Lindy
Lane, it seems they are trying to insert a solution for which there is no problem. He
recommended they remain with the existing requirements until there is some evidence that
there is a problem that needs solving.
Vice Chair Miller:
• Said the issue is that 15 lots are treated differently than the others in the same category; is that
fair and should they try to fix that because there is a feeling that it is inherently unfair. He said
he felt it could be considered spot zoning. There is a category of lots where there is 286 or 386
or similar number and these 15 lots have been singled out of that category for special
treatment. He said he felt it was inherently unfair and felt that staff’s recommendations are
trying to address that as well as clarify some of the other aspects of the ordinance with their
recommendations.
Cupertino Planning Commission July 12, 2011
12
Com. Brophy:
• Said if they felt the 15 lots were treated unfairly, the solution is to deal with it directly rather
than asking if they can find more lots to insert into that situation.
Vice Chair Miller:
• Asked staff for clarification; said he felt they were doing away with the uniqueness of the 15
lots in their recommendations.
Gary Chao:
• Said the consideration was prompted by City Council, and the intent was to consider whether
the rules should apply to the other lots with similar characteristics; or should they be
eliminated which could be a possible consideration.
• Relative to Com. Brophy’s point, if for some reason after further assessment that these rules
don’t make sense to the Commission, on any of the sloped lots, or R1 single family lots, in
general slope or no slope, and if it is felt the most equitable way of dealing with the dominance
is to have everybody go back to the baseline standard R1 rules, that could possibly be the
recommendation as well.
Com. Sun:
• To overcome the inherent unfairness to treat some area as other, option 1-5, a yes vote could
solve the inherent problem.
Gary Chao:
• Said that is assuming there is an equity issue; he was uncertain if staff is onboard with that on
concept; there are many areas in R1 that has its overlays, such as R1-i zones, where
neighborhoods get together and want to have their limitation on single story only; that in itself
has a different layer of requirement that other R1 lots don’t have but it is a zoning layer within
itself; it is not a different zone or the Eichler zone for example in the R1 subset where it
defends a certain characteristic.
• The original intent was that the Lindy Lane hill for which the R1-20 lots sit on has a unique
characteristic given its backdrop in the hillside context; therefore the sensitivity was there and
the Council decided to apply the special consideration to them. They are now saying that there
may be other lots that may have similar characteristics that weren’t included in that prior
exercise, and for whatever reason was decided to exclude it at the time. Staff is looking at it
from a purely more technical aspect as opposed to equitable consideration.
Vice Chair Miller:
• Regarding Eichler and the R1-i, those were initiated by residents; in the case of the 15 lots,
those were forced upon them by City Council ruling, and looking at the affect of this ruling;
the intent was to limit the intensity of development on the hillsides, but intensified it because
all the people on the hillside who could subdivide, suddenly subdivided and where there were 7
or 10 lots, had doubled or tripled up to 15 lots. Instead of having one house, there are two or
three houses with far more development intensity on that hillside. He said he felt the intent
might have been there but the ruling failed to meet the intent; in fact it went the opposite.
Staff’s recommendations seem reasonable but to Com. Brophy’s point, the alternative would
be to recommend a reversal of singling out these.
Com. Brophy:
• Said they have a limited review which is not in their power tonight anymore than they can
change the FAR recommendation.
Cupertino Planning Commission July 12, 2011
13
Vice Chair Miller:
• Said the recommendation is relative to what to do with the sloped lots.
Com. Brophy:
• These are a particular list of sloped lots; I wasn’t here when the Lindy Lane issue came up; but
if we want to reverse that decision, we need to have a public hearing on that issue. Presently
we are asked to extend the ruling beyond RHS and R1-20 lots and my feeling is we haven’t
heard any evidence that says there is any public benefit to increasing it; there may be a public
benefit to reducing the lots that are covered by it, but we haven’t advertised for that and
haven’t heard testimony on the subject.
Vice Chair Miller:
• Said he may not be reading it the same way; for example, the first one, slopes require 30%,
there it is providing a rule that is extended generally to all lots of that class in the city; from
that standpoint, we may be extending this rule.
Com. Brophy:
• Said he was stating they should not; and he was voting for No. 7.
Vice Chair Miller:
• On the other hand, there are some requirements that say go back to the way it is treated with
other R1 lots; there are changes being made to this and we could say just do an overall change
and let these lots go back to R1 and everything else is RHS the way it was before.
Com. Brophy:
• Said it is a limited review, and if they were going to discuss that, it needs to be advertised to
hold a public hearing. He said they are discussing what is on the agenda, and he votes for no
change.
Vice Chair Miller:
• Said staff mentioned that they could recommend going back to the way it was.
Gary Chao:
• Said that both Commissioners were saying the same thing to a certain extent, and he preferred
that the Commissioners go down the list and literally make their positions known; and if there
are additional comments and outside of the scope, whether it is intensifying or making it more
relaxed outside of the Council’s parameters, staff will convey it to the Council and if they find
in those considerations given the testimony they will hear it from the citizens, they can open it
for broader assessment, potentially deleting everything.
• Com. Brophy is correct in stating that they would have to initiate that by advertising it and that
would be a completely different conversation if neighbors know that potentially they are
talking about complete elimination; but it is within the scope of the conversation; and by
voting on the issues and voicing why you are voting a certain way, staff can forward it to the
Council.
• If Com. Brophy states he does not see the need for any change, he is done; everything else
would be No.
Com. Brophy:
• Said he supported requiring Commission review for grading over 2500 yards, in effect that is
part of No. 7; there is no change; likely will abstain on all 6 and vote yes on No. 7.
Cupertino Planning Commission July 12, 2011
14
Com. Sun:
• Said he concurred.
Vice Chair Miller:
• No. 1: Recommended that the additional review is triggered on lots where the slope on the pad
is within that range as opposed to the average slope of the lot, because you could have a large
flat pad and then a very steep slope behind it and not have any problems whatsoever building
on the flat pad.
• No. 2: The grading is a good thing; 2,500 cubic yards should be the limit.
• No. 3: Over 35% would generate a review; questioned why the recommendation for the
Planning Commission instead of just the staff.
• Fencing requirements: Appropriate to have open fencing where there is a lot of visual impact.
• Tree removal: agree.
• No. 6: Appropriate
Com. Brownley:
• Slopes: Said he agreed with slopes, changing it from average slopes to the defined area where
the home is being built, which is more accurate.
• Grading: Agree that some of the things they are attempting are related to environmental
damage to the surrounding area and visual aesthetics; restricting grading to a certain level
meets those objectives.
• FAR: Agree with moving the FAR on second story to staff review.
• Fencing: For similar reasons of environmental, aesthetics and visual aspects of the
community, encourage open fencing.
• Tree removal and retaining walls: Agree.
Chair Lee:
• Slopes: Should have no additional slope standards if building on a flat pad even though the
average is 20 to 30.
• Grading: 2,500 cubic yards is sufficient; anything over that should require Planning
Commission review; don’t want to be moving more than that much dirt.
• FAR: With the FAR in second story, in a sloped area, if homes are over 35% FAR, it should go
to staff, 35% or under 35% that would be good; also at a 35% FAR that is a large FAR for the
sloped area already. Second story should not be limited because we want to prevent moving a
lot of dirt in sloped areas. Should encourage or make it easier for sloped homes to have a
second floor.
• Fencing: Widely visible sloped lots should have some special fencing requirements but also
remain the same as for other R1 lots; should screen retaining walls and remove the current
allowance for tree removal on sloped lots.
Coms. Sun and Brophy:
• Keep as is.
Vice Chair Miller:
• There is some clean up to do; staff pointed one out and that is that exceptions become more
restrictive than the basic review, for minor residential. When has staff not reviewed an
exception to allow proximity to 10 feet in the rear yard; has there ever been a case where staff
did not approve that.
Cupertino Planning Commission July 12, 2011
15
Gary Chao:
• They are not exceptions, but are called minor residential applications. The rule is clear and
everybody coming in has complied with the regulations; no requests have been denied in the
past.
Vice Chair Miller:
• Why single it out then; if they come in with the calculations, put it through as part of the
approval.
Gary Chao:
• Concurred, and said that they would have to decide if the only reason that it would have merit
in remaining as staff level is the neighbor notification; and also the side yard extension and rear
yard encroachment. He said there was no right or wrong; if they say take that out and make it
just building permits as well, there would not be any notification to any adjacent neighbors,
because staff is the lowest form of any approval that would trigger notification.
Vice Chair Miller:
• Said he was suggesting it only for the rear yard because it has never been approved; however,
decks seem to engender lots of discussion and opposition; keep that in.
• Recommended that they continue to have critical review of decks and perhaps think about
eliminating the others.
• With the change in not doing design review, there is probably some inconsistencies in the
ordinance that would need to go back and clean up.
Gary Chao:
• Part of the function between now for staff to the City Council once we get your
recommendation is to actually make sure that the ordinance is amended, will be presented per
your recommendation and that it would internally be consistent; staff will go through and make
sure there is no conflicting policy.
Vice Chair Miller:
• Now that we have eliminated the design review for over 45% does it make sense to eliminate
some of the other restrictive requirements like four sided review and essentially we have in
here visual relief deemed to be appropriate by the Director of Community Development; that
becomes inconsistent as well.
Gary Chao:
• Said it was referring to the process currently where it triggers the principals over 45%. They
would have to make some adjustments because it doesn’t make sense to say no design review,
but then design review. It could be either guidelines for consideration that are good to have,
because the Planning Commission is not against the designs in general and there should be
some consistent policy or guidance for folks to try to achieve, whether they do in their own
way is fine. It should be kept as reference; staff will make the necessary changes to that
document to reflect the recommendation.
Motion: Motion by Com. Brophy, second by Vice Chair Miller, and unanimously carried
5-0-0 to forward the straw votes to City Council for each of the items under MCA-
2011-03 and approve EA-2011-05.
OLD BUSINESS: None
NEW BUSINESS: None
Cupertino Planning Commission July 12, 2011
16
REPORT OF THE PLANNING COMMISSION
ENVIRONMENTAL REVIEW COMMITTEE: Meeting cancelled.
HOUSING COMMISSION: Meeting scheduled for July 14, 2011.
MAYOR’S MONTHLY MEETING: No meeting.
ECONOMIC DEVELOPMENT COMMITTEE: No meeting.
REPORT OF DIRECTOR OF COMMUNITY DEVELOPMENT: Written report submitted.
Brief discussion about November meeting schedule because of election day.
Adjournment: The meeting was adjourned to the next regular Planning Commission meeting
scheduled for July 26, 2011 at 6:45 p.m.
Respectfully Submitted: ____________________________
Elizabeth Ellis, Recording Secretary