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CC 08-02-2011 CUPERTINO MINUTES CUPERTINO CITY COUNCIL Regular Adjourned Meeting Tuesday, August 2, 2011 ROLL CALL Present: Mayor Gilbert Wong, Vice -Mayor Mark Santoro, and Council members Barry Chang, Orrin Mahoney, and Kris Wang (7:52 p.m.). Absent: none. CLOSED SESSION 1. Subject: Conference with legal counsel - Significant Exposure to Litigation (Gov't Code 54946.9(b)(1)) Description: One case Page: No written materials in packet 2. Subject: Conference with legal counsel - existing litigation (Government Code 54956.9(a)) Description: City of Cupertino v. Yuen/Zhang et al, Santa Clara County Superior Court Page: No written materials in packet At 5:00 p.m., the Council recessed to a closed session, and reconvened in open session at 6:47 p.m. Mayor Wong announced that for both items, the City Council obtained a briefing from legal counsel and gave direction to staff. PLEDGE OF ALLEGIANCE At 6:45 p.m. Mayor Gilbert Wong called the regular meeting to order in the Council Chamber, 10350 Torre Avenue, Cupertino, California, and led the Pledge of Allegiance. ROLL CALL Present: Mayor Gilbert Wong, Vice -Mayor Mark Santoro, and Council members Barry Chang, Orrin Mahoney, and Kris Wang. Absent: none. CEREMONIAL MATTERS — PRESENTATIONS 3. Subject: Proclamation recognizing Angela Zhang and Natalie Ng of Monta Vista High School for their award from Santa Clara Valley Science and Engineering Fair Association (SCVSEFA) August 2, 2011 Cupertino City Council Page 2 Forrest Williams, former San Jose City Council Member and representative of the Santa Clara Valley Science and Engineering Fair Association, explained that the purpose of the association was to promote the fields of science and engineering and to encourage students to pursue careers in these areas, and he noted how proud he was of the recipients of these awards. Mayor Wong presented the proclamation to Angela Zhang and Natalie Ng of Monta Vista High School and congratulated them on their achievements. They thanked the Council and the Association for the recognition, commented on their projects, and stated that it was an honor to receive both the awards and the proclamation. 4. Subject: Proclamation recognizing Stephanie Wang and Jennifer Wang for starting and running the Cooper's Dream dog rescue group This item was postponed to a later meeting. 5. Subject: Presentation from Santa Clara County Fire Chief Ken Kehmna Recommended Action: Receive presentation Santa Clara County Fire Chief Ken Kehmna stated that he had been with the Fire Department for 24 years and had recently been named Fire Chief. He noted that these were challenging times but he viewed any negative budgetary impacts as an opportunity to become more fiscally responsive, to get rid of redundancies, and to think outside the box. He was looking forward to discussing ways to improve fire service in the county and to save money. POSTPONEMENTS Jennifer Griffin stated that she had asked for Item 33 to be postponed to the August 16 meeting because many residents in the Rancho Rinconada neighborhood had been told that was when it was scheduled, and their neighborhood had many issues that had not been adequately addressed. City Attorney Carol Korade stated that at their June 21 meeting the Council had continued this matter to the August 2 meeting. A city -wide notice was done as well as a legal notice. It was therefore required that Council agendize this matter for tonight's meeting; however, they could continue the matter if they wished. WRITTEN COMMUNICATIONS The City Clerk presented the following written communications: • Item No. 17 — Three letters from City Manager Knapp responding to Santa Clara County Civil Grand Jury final reports • Item No. 18 — Revised Council Staff Report, regarding Parks and Recreation Commission Work Plan for Fiscal Year 2011 - 2012 August 2, 2011 Cupertino City Council Page 3 • Item No. 33 — Emails regarding R1 review from Chi -I Lang, Stephen Sun, Tim Coad, Frank Sun, Miriam Salo, Paul Brophy, Jennifer Griffin, and Lisa Warren; and Amended Draft R1 Ordinance & Staff PowerPoint presentation • Item No. 35 — Staff PowerPoint presentation regarding RDA "Opt in" Ordinance and an staff memorandum dated August 2 ORAL COMMUNICATIONS Rob Chansler, representing the San Francisco Shakespeare Festival, thanked Council and staff for their continued support over the last 15 years. He noted that the season was beginning with the production of Cymbeline August 13 -28. He also noted that the summer camps were underway. In addition, the production of Taming of the Shrew was scheduled for later this fall. Karen del Compare thanked the Council for their continued reporting on the Lehigh Quarry issue. She referred to the recent letter from the Office of Mining Reclamation giving the quarry 30 days to comply with regulations or be removed from the AB3098 list, which was a list of quarries that had approved reclamation plans and no violations of State mining laws. Lehigh had been in non - compliance of such laws for many years. She supported Council Member Chang for his stand on Lehigh. Ken Yeu stated his support of Council Member Chang. He referred to a letter which had recently been distributed throughout Cupertino urging citizens to ask that the public censure of Council Member Chang be placed on this agenda. He believed this was inappropriate and asked Council to take no such action. John Bartas stated his support of Shakespeare in the Park. He also thanked Council for their support of his carpooling project. He anticipated that a pilot program would be in place in the fall at Monta Vista. He also referred to the letter from the Office of Mining Reclamation and noted that he had been concerned about this issue for five years. He was disappointed to hear that rather than attempting to correct this matter Lehigh had turned the issue over to their attorneys. Additionally, he did not like the tone of the smear campaign against Council Member Chang. Jennifer Griffin restated her request for a postponement of Item 33. Many people were interested in this issue and had received misinformation concerning it. She had followed the proper procedure to request this postponement. On another matter she noted that a Chase Bank and McDonalds were planned for the shopping center across from Hyde Middle School. While this center was actually in San Jose she was concerned about the safety of the school children. Mayor Wong noted that the city would be conveying to San Jose the concerns of the residents regarding this center. Philip Leu referred to the letter concerning Council Member Chang and asked him to comment on where all of this hostility was coming from. He believed it was important for the Cupertino community to have more information. August 2, 2011 Cupertino City Council Page 4 Alvin Jackson supported a public censure of Council Member Chang. Council Members were supposed to be role models and he did not believe threatening government employees was appropriate behavior. Janice Chua noted that she was the owner of a new coffee shop in Cupertino called Bitter +Sweet located near Amici's Pizzeria. She commented that it was a comfortable environment for people to get together and she encouraged everyone to visit. Tim Brand stated that Lehigh had not been in compliance with regulations for years and he wondered how the County had allowed such violations to continue. He believed it took courage to confront the politicians on this issue and he commended Council Member Chang. Mr. Bandermann questioned why Cupertino did not have a city postcard. He noted the city had wonderful vistas, monuments and areas of historical interest. He also referred to the community tree in front of Quinlan Center and asked why it was not called a Christmas Tree. The Supreme Court had ruled that Christmas trees were legal so it was not a question of possible lawsuits. CONSENT CALENDAR Wang moved and Santoro seconded to approve the items on the Consent Calendar as recommended. Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Abstain: None. 6. Subject: June 15 City Council minutes Recommended Action: Approve minutes 7. Subject: July 5 City Council minutes Recommended Action: Approve minutes 8. Subject: Accounts Payable for period ending June 30, 2011 Recommended Action: Adopt Resolution No. 11 -114 9. Subject: Accounts Payable for period ending July 1, 2011 Recommended Action: Adopt Resolution No. 11 -115 10. Subject: Accounts Payable for period ending July 8, 2011 Recommended Action: Adopt Resolution No. 11 -116 11. Subject: Accounts Payable for period ending July 15, 2011 Recommended Action: Adopt Resolution No. 11 -117 12. Subject: Accounts Payable for period ending July 22, 2011 Recommended Action: Adopt Resolution No. 11 -118 13. Subject: Payroll for period ending July 8, 2011 Recommended Action: Adopt Resolution No. 11 -119 August 2, 2011 Cupertino City Council Page 5 14. Subject: Payroll for period ending July 22, 2011 Recommended Action: Adopt Resolution No. 11 15. Subject: Treasurer's Investment and Budget Report for Quarter Ending June 2011 Recommended Action: Accept the report 16. Subject: Add Roth 457 Option to the ICMA Deferred Compensation Plan Recommended Action: Adopt resolution No. 11 -120 Description: Add an option to the existing ICMA -RC deferred compensation plan that will offer Roth 457 features such as after -tax contributions and tax -free withdrawals 17. Subject: Authorize the City Manager to sign letters responding to three Civil Grand Jury reports Recommended Action: Authorize the City Manager to sign the attached letters responding to the Civil Grand Jury's findings and recommendations on emergency dispatch, fire department response, and rehiring pensioners The City Clerk distributed three letters from City Manager Knapp responding to Santa Clara County Civil Grand Jury final reports 18. Subject: Parks and Recreation Commission Work Plan for Fiscal Year 2011 - 2012 Recommended Action: Approve Work Plan The City Clerk distributed a copy of the revised staff report regarding the Parks and Recreation Commission work plan for Fiscal Year 2011 - 2012 19. Subject: Grant of Easement for Roadway Purposes, Rajiv Pendyala and Sudharani Pendyala, 10566 Santa Lucia Drive, APN 342 -16 -039 Recommended Action: Adopt Resolution No. 11 -121 Description: The property owners 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 20. Subject: Grant of Easement for Roadway Purposes, Jagriti Mukherjee and Aniruddha Mukherjee, 21856 Hermosa Avenue, APN 357 -16 -052 Recommended Action: Adopt Resolution No. 11 -122 Description: The property owners 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: Improvement Agreement, Rajiv Pendyala and Sudharani Pendyala, 10566 Santa Lucia Drive, APN 342 -16 -039 Recommended Action: Adopt Resolution No. 11 -123 Description: Through the improvement agreement with the City, the applicants for a building permit for a single- family residential development will be obligated to bond and August 2, 2011 Cupertino City Council Page 6 construct city - specified roadside improvements along the street frontage of their building site 22. Subject: Municipal Improvements, Hsuehli Joseph Yeh and Hsiaowen Tung, 10131 Santa Clara Avenue, APN 326 -24 -050 Recommended Action: Accept Municipal Improvements Description: The work included sidewalk, curb & gutter, driveway approach, utility trench and paving as required by the improvement agreement with the City 23. Subject: City Project, Reconstruction of Curbs, Gutter, and Sidewalks Project No. 2010 -05 Recommended Action: Accept Project No. 2010 -05 Description: The work consisted of concrete repairs at various locations throughout the City 24. Subject: City Project, Scenic Circle Access, Project No. 2010 -9136 Recommended Action: Accept Project No. 2010 -9136 Description: The work consisted of the construction of a pathway to access Blackberry Farm from Scenic Circle 25. Subject: City Project, 2010 Pavement Maintenance Project Recommended Action: Accept Project No. 2010 -04 Description: The work consisted of roadway surface and concrete improvements at various locations throughout the City 26. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Rajiv Pendyala and Sudharani Pendyala, 10566 Santa Lucia Drive, APN 342 -16 -039 Recommended Action: Adopt Resolution No. 11 -124 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 27. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Boyer Family Partnership I, L.P., 20605 Lazaneo Drive, APN 326 -33 -096 Recommended Action: Adopt Resolution No. 11 -125 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 28. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Bruce C. Steakley and Joyce M. Steakley, 21750 Rainbow Drive, APN 366 -03 -064 Recommended Action: Adopt Resolution No. 11 -126 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 29. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Da -Yuan Tung and Hsin -Ning Keng, 10611 Culbertson Drive, APN 375 -36 -025 Recommended Action: Adopt Resolution No. 11 -127 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 August 2, 2011 Cupertino City Council Page 7 30. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Shih Yu Lo and Pei Ting Chung, 18780 Pendergast Avenue, APN 375 -27 -028 Recommended Action: Adopt Resolution No. 11 -128 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 31. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Kee Yun Hwang, 10037 Bret Avenue, APN 375 -11 -019 Recommended Action: Adopt Resolution No. 11 -129 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 32. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Ronsdale Management LLC, a California Limited Liability Company, 10483 Mira Vista Avenue, APN 357 -04 -080 Recommended Action: Adopt Resolution No. 11 -130 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 ITEMS REMOVED FROM THE CONSENT CALENDAR (above) - None PUBLIC HEARINGS 33. Subject: Municipal Code Amendment regarding Single - Family Residential Zones (R -1) Recommended Action: Conduct first reading of Ordinance No. 11 -2079: "An Ordinance of the City Council of the City of Cupertino amending Chapter 19.28, Single - Family Residential Zones, to improve readability and consistency, the two -story design review process, public noticing requirements, story pole requirements, and standards for Sloped Single- Family Residential Lots" Description: Applications: MCA - 2011 -03, EA- 2011 -05; Amendment to Chapter 19.28, Rl Zones to improve readability and consistency and to evaluate the requirements for Sloped Single Family Residential Lots, the 2 -story design review process, public noticing & story poles; Applicant: City of Cupertino; Location: Citywide The City Clerk distributed emails regarding R1 review from Chi -I Lang, Stephen Sun, Tim Coad, Frank Sun, Miriam Salo, Paul Brophy, Jennifer Griffin, and Lisa Warren; and a copy of the amended Draft R1 Ordinance and the staff PowerPoint presentation Assistant Planner George Schroeder reviewed the staff report that included a chronological list of actions taken regarding the review of s Loped lot standards. The Planning Commission recommended removing the design review process for all two -story homes, improving the readability and consistency of the ordinance by use of tables and better organization of state rules, replacing story poles with a color perspective of the project and a 3D photographic simulation, requiring notification of only the adjacent and across the street neighbors of a project, requiring that only project site plans and elevations be included in the official August 2, 2011 Cupertino City Council Page 8 notices and requiring development standards for sloped lots. The Planning Commission also commented on the 45% second floor rule and the second story exposed wall and setback surcharge rules, reorganized the tables for required permits, clarified the specific RHS fencing requirement, clarified language on the high interior floor area rule and removed references to restricting flat yard area grading to 2,000 square feet. Staff recommended adopting the negative declaration and conducting the first reading of the ordinance. Jennifer Griffin stated that her Rancho Rinconada neighborhood had spent three years getting annexed into Cupertino. Theirs was a neighborhood of small lots and many residents were concerned about these possible changes. She wanted the Council to leave the single - family residential zoning alone, and to honor promised made in 2000. Chi -I Lang did not agree that certain slope lots should be considered separately. He hoped a sustainable solution could be reached. Shan Zhu did not agree that fifteen lots should be subject to different regulations. He supported property rights, and felt the Council should either remove the limitation or have it apply to all. Terry Brown supported the Planning Commission's recommendations. He did not think that story poles really showed the neighbors what was going to be built. He also supported architectural freedom, and did not believe good architectural decisions could be solely based on mathematics. Stephen Sun supported streamlining the building and design process. He referred to the high cost of housing in Cupertino and believed owners should have a right to build their dream homes. Lisa Warren did not believe the ordinance should be changed. She had attended the workshop and did not think the Planning Commission's recommendations reflected the residents' input. She noted that it was a prevailing opinion among some residents that their comments were not being heard and decisions on some matters had already been made. Frank Sun supported the Planning Commission recommendations. He also noted that sloped lot regulations should not apply to only fifteen lots but if put in place should apply to all. Adam Montgomery, representing the Silicon Valley Association of Realtors, supported the Planning Commission recommendations. He believed streamlining was needed and there should be clear and consistent policies in place. He also noted that not all cities had design review. Council discussed the recommendations before them, noting that the issue of sloped lots was the driving force behind reopening this ordinance. Single- family residential zoning was a difficult issue and it was important to balance property rights with the impact of a project on the neighbors. All recommendations were reviewed and discussed with particular emphasis on sloped lots and design review. August 2, 2011 Cupertino City Council Page 9 Mahoney moved and Chang seconded to approve Negative Declaration EA- 2011 -05. The motion carried unanimously. Mahoney moved and Chang seconded to approve MCA - 2011 -03 with the following conditions: a. Accept the planning commission recommendations regarding ordinance readability and consistency, public noticing requirements, story pole requirements, and development standards for sloped lots with the following modification: i. Public noticing materials, site sign— changed color perspective rendering to black and white perspective rendering b. Amend the planning commission recommendation for two -story design review with the following: i. Design review shall be required if exceeding 66% second floor to first floor ratio and /or if second story setbacks are less than 15 feet to the side property line ii. The 66% trigger for design review would not apply to homes developing on building pads /graded areas with actual slopes of over 20 %, however, design review would apply if second story setbacks are less than 15 feet to the side property line c. Remove the second story exposed wall and second story setback surcharge rules The City Clerk read the title of the ordinance. Mahoney moved and Chang seconded to read the ordinance by title only, and that the City Clerk's reading would constitute the first reading thereof. Ayes: Chang, Mahoney, Santoro, Wang and Wong. Noes: None. RECESS - Council recessed from 9:50 p.m. to 10:10 p.m. Council discussion followed to clarify the City Council's intention regarding the previous motion on the Single- Family Residential (R -1) zone. Council member Mahoney said that previously houses on a slope over 15% (which has now been changed to 20 %) did not have a second -floor size restriction. He noted that the 66% trigger for design review would not apply to homes on a slope of over 20 %; however, the 15 -foot setback trigger would still apply. The City Council members all concurred with this clarification. UNFINISHED BUSINESS - None NEW BUSINESS 34. Subject: Assessment of fees on private parcels for the annual weed abatement program Recommended Action: Conduct a hearing and adopt Resolution No. 11 -131 Mayor Wong opened the hearing, and there were no requests to speak. Mahoney moved and Wang seconded to adopt Resolution No. 11 -131. The motion carried unanimously. 35. Subject: Ordinance to "Opt in" to an Alternative Voluntary Redevelopment Program under ABx1 27, the Voluntary Program Act August 2, 2011 Cupertino City Council Page 10 Recommended Action: Conduct the first reading of Ordinance 11 -2080: An Ordinance of the City Council of the City of Cupertino enacted pursuant to Health and Safety Code section 34193 to elect and implement participation by the City of Cupertino and the City of Cupertino Redevelopment Agency in the alternative voluntary Redevelopment program pursuant to part 1.9 of the California Community Redevelopment Law" Director of Administrative Services Carol Atwood reviewed the staff report and a memorandum dated August 2 contrasting the opt -in and opt -out choices. She stated that staff was recommending the opt -in choice because it provided more options in the future, the city could choose to opt -out at any time. In addition, the reinstatement of approximately $250,000 to the General Fund would offset the $240,000 loss to the city in vehicle license fees. Director of Finance David Woo provided Council with a detailed explanation of the chart outlining the financial ramifications of both options. Jennifer Griffin inquired if the city would still receive money from the Santa Clara County Housing Fund as it had in the past, whether or not it decided to opt in or out, and was told that it would. Paul Brophy, Planning Commissioner, stated that if the city selected the opt -in choice there would be no money for discretionary projects over the next five years and very little additional housing money. He believed that redevelopment agencies took property tax from new development that was supposed to be for schools, special districts, etc. and gave that money to politically connected developers, realtors, lawyers, etc. The State still gave money to the school districts but it was money that was previously given away. Lynn Hutchins, Special Redevelopment Agency Counsel, stated that the legislation required that the city adopt an ordinance on this matter. Therefore, it was required action by the City Council and not the Redevelopment Agency. She also noted that the remittance payment going to schools would count against the Proposition 98 cap for 2011 -12 but would not in future years. She commented that basic aid schools already received more tax revenue than non -basic aid schools. Ms. Hutchins stated that the California Redevelopment Association and the League of California Cities had filed a lawsuit on July 18 asking the California Supreme Court to exercise its original jurisdiction and hear this case. No decision had been made at this time. Mayor Wong and Council Members Mahoney, Santoro and Wang stated that it was not a great choice but they agreed with the opt -in option recommended by staff. It left open future options, and with pending lawsuits it was important to do this. Mayor Wong also noted that Proposition 22 protected city funding and he believed Sacramento was pitting special interest groups against each other. Council Member Chang said he would choose to opt out because if the schools don't get the extra money, and with the state's financial troubles, ultimately the city will not do well August 2, 2011 Cupertino City Council Page 11 either. The city may get extra money, but a lot of it goes to administrative costs instead of the redevelopment of the city. Mahoney moved and Wang seconded to approve an ordinance to "opt -in" to an Alternative Voluntary Redevelopment Program under AB 127, the Voluntary Program Act. The motion passed with Council Member Chang voting no. The City Clerk read the title of the ordinance. Mahoney moved and Wang seconded to read the ordinance by title only, and that the City Clerk's reading would constitute the first reading thereof. Ayes: Mahoney, Santoro, Wang and Wong. Noes: Chang. ORDINANCES - None STAFF REPORTS - None COUNCIL REPORTS Council Member Mahoney commented on the Taiwanese /Chinese Athletic Tournament, the 5th anniversary dinner of the Thean Hou Temple, the Relay for Life and a recent food event held at Quinlan. He also asked the City Attorney about the Christmas tree question raised earlier in the meeting. Mayor Wong noted that the Vice -Mayor from Hsinchu recently visited Cupertino to strengthen the Sister City relationship. City Attorney Carol Korade stated that the legality of the Christmas tree naming had not definitively been resolved by the courts, but that it was primarily a policy matter, although there is always a small risk of litigation. Council member Chang showed a letter written to him, written by Santa Clara County Executive Jeffrey Smith, which had been released to the news media. He had said he had been speaking out about the County not enforcing the mining laws and not imposing penalties on Lehigh. Mr. Chang said that the letter made false accusations, stating that he had threatened staff, and no -one had asked for his side of the story. The letter h_ad since been annotated with comments and distributed to Cupertino residences by an unknown party. He asked the City Attorney if this activity was legal. He also questioned the timing of its distribution. City Attorney Carol Korade stated that she could not comment on County liability. Mayor Wong said that Kelly Kline, Economic Development Manager and Redevelopment Manager, was leaving to accept a position in another city. He thanked her for excellent service to the community, and said that the City Council appreciated her any contributions to Cupertino. Mayor Wong also mentioned that Terry Greene, the City Architect, had recently retired. He thanked Mr. Greene for his many years of service to the city and his significant contributions to many of the city's most important projects. August 2, 2011 Cupertino City Council Page 12 ADJOURNMENT At 11:18 p.m., the meeting was adjourned. Kimberly Smith, ity 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.