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CC 11-01-2011 �S(.195 as CUPERTINO MINUTES CUPERTINO CITY COUNCIL Regular Meeting Tuesday,November 1, 2011 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 (7:01 p.m.). Absent: None. CLOSED SESSION -None CEREMONIAL MATTERS—PRESENTATIONS 1. Subject: Presentation from the Tobacco Free Coalition of Santa Clara County in appreciation for adopting a smoke-free recreational areas ordinance Recommended Action: Receive presentation Carol Baker, Vice-Chairman of the Tobacco Free Coalition of Santa Clara County, thanked the Council for their outstanding leadership in supporting strong tobacco prevention policies. Mayor Wong thanked Ms. Baker and other groups and non-profits for their support and hard work in achieving a tobacco free environment. 2. Subject: Presentation from the Cupertino-Hsinchu Sister City Association Recommended Action: Receive presentation Angela Chen, President of the Cupertino-Hsinchu Sister City Association, noted that a 28 member delegation from Hsinchu was here for a week. The delegation was made up of high school and middle school students, a teacher, a principal and a city official. They were all staying with host families and they were learning about our school system as well as our culture. A Hsinchu school principal, Ms. Shou Fung Huang, speaking through an interpreter, noted that Cupertino and Hsinchu had been sister cities for 15 years and the student exchange program had been in place for 7 years. On behalf of the Hsinchu city government she wanted to thank the host families and all involved in the sister city program. They had visited an elementary and middle school and had learned quite a bit about Cupertino's education system November 1, 2011 Cupertino City Council Page 2 including standards for teacher evaluations. They would bring this new knowledge back to their officials. Angela Chen stated that this was a very successful sister city program and she thanked the Council and staff for their support of this important educational and cultural exchange. In response to an inquiry from Council, she noted that this delegation was larger than those in the past. Students in Hsinchu were very eager to come to Cupertino to learn about its schools so the number of chaperones had been decreased and the number of students increased. 3. Subject: Presentation from Cupertino-Toyokawa Sister City Recommended Action: Receive presentation Asif Kauser, President of the Cupertino-Toyokawa Sister City Committee, commented that 2011 was a challenging year for Japan after the earthquake. With assistance from the community including the schools they were able to send $28,500 to victims of the earthquake and tsunami. Because of concerns about radiation a delegation did not go to Toyokawa this year but arrangements have been made so that the delegation next year would be double its usual size. In September a delegation of 16 students came here from Toyokawa and was hosted by Hyde Middle School. The chaperones went to the local schools and thanked them for their fundraising efforts. The annual cherry blossom festival was very successful with about 45,000 attending. This year some exhibits were in the Senior Center instead of the Quinlan Center. It appeared to be a preferred location and next year they hoped to expand the area available for the event at the Senior Center. He thanked the Council for its continued support of the Cupertino-Toyokawa Sister City Program. POSTPONEMENTS City Clerk Kimberly Smith stated that the applicant for Item 8, Cupertino Village development approval extensions, had requested a postponement to the December 20th, 2011 City Council meeting. Applicant David Jamison stated that they were ready to present Item 8 to the Council and withdrew the request for postponement. The City Council concurred to hear the item later in the meeting. WRITTEN COMMUNICATIONS City Clerk Kimberly Smith distributed the following written items: Cupertino Village development approval extensions (Item 8) • A copy of the staff PowerPoint presentation, • A copy of the Community Benefit Matrix Second reading and enactment of Municipal Code amendments to Zoning Ordinance Item 12) • Email from Keith Murphy asking for a continuance on this item, and asking Council not to limit public notices or apply punitive fines • Letter from Paula Davis, President of the Cupertino Chamber of Commerce, expressing support for the streamlining process. November 1, 2011 Cupertino City Council Page 3 ORAL COMMUNICATIONS Michael Gottwald thanked Council for their support of tobacco prevention policies. The adoption of a smoke-free recreational areas ordinance was important legislation. Cathy Helgerson said that Apple was installing a heating and ventilation system at their 10475 Bandley Drive location. She did not believe this system should be allowed due to environmental concerns. She also wanted Council to name Lehigh and Stevens Creek Quarry superfund sites and stop the pollution in the valley. CONSENT CALENDAR Wang moved and Santoro seconded to adopt the items on the Consent Calendar as presented, with the exception of item No. 5 which was pulled for discussion. The motion carried by the following vote: Ayes: Council members Chang, Mahoney, Santoro, Wang and Wong. Noes: None. Absent: None. 4. Subject: October 18 City Council minutes Recommended Action: Approve minutes 6. Subject: Accounts Payable for period ending October 14, 2011 Recommended Action: Adopt Resolution No. l 1-183 7. Subject: Accounts Payable for period ending October 21, 2011 Recommended Action: Adopt Resolution No. 11-184 ITEMS REMOVED FROM THE CONSENT CALENDAR 5. Subject: Treasurer's Investment and Budget Report for Quarter Ending September 2011 Recommended Action: Accept the report Council member Santoro had questions about page 18 and the statements made by HighMark, which was investing money for retirement benefits for the city in the amount of about $9 million. Santoro asked why the numbers were not adding up in the report. Director of Administrative Services Carol Atwood agreed that this statement by HighMark was misleading and not accurate. HighMark had been contacted by staff to present a report that was more clear and correct in the information it contained. Finance Director David Woo noted that they could put this matter on an audit committee agenda for January. At that time there could be more detailed discussion on where the investments were, the rate of return to expectations, and the best method of presenting the information to the Council in the future. November 1, 2011 Cupertino City Council Page 4 Santoro moved and Chang seconded to accept the Treasurer's Report, except for the table on page 18, titled HighMark Capital Management, which will be brought back before the Audit Committee. Chang moved and Santoro seconded to re-order the agenda to take item Nos. 11 and 12 next. The motion carried unanimously. ORDINANCES 11.Subject: Second reading and enactment of ordinances for Home of Christ Expansion Proposal Recommended Action: Conduct second reading and enact Ordinance No. 11-2083: "An Ordinance of the City Council of the City of Cupertino, which repeals certain conditions referenced in Ordinance No. 360: #13, #14, #15, and #19 found in Planning Commission Resolution No. 406 and Planning Commission Resolution No. 409 in its entirety; and modifies Exhibit "C" by adding: ancillary general commercial uses as a permitted use; technical colleges & existing churches approved with a conditional use permit as conditional uses; and daycare centers, schools, convalescent centers & other sensitive receptors as prohibited uses; and amends Chapter 19.60 (Light Industrial (ML) Zones) of the Cupertino Municipal Code, related to the streamlining and codification of the ML-rc (West Valley Light Industrial) Zoning regulations" and; Conduct second reading and enact Ordinance No. 11-2084: "An Ordinance of the Cupertino City Council rezoning a parcel of 1.612 acres and its fronting half-street of 0.189 acre located at 10340 Bubb Road, APN 357-20-019" Description: Applicant: Kevin Chiang (Home of Christ Church); Applications: MCA-2011- 01 & Z-2011-01; Locations: 10340 Bubb Road & West Valley Industrial Park; Environmental Determination: Negative Declaration (EA-2011-02) Jennifer Griffin stated that at the second reading of an ordinance there should be an introduction of the item so that people knew what was being discussed. In this case she supported the Home of Christ Church but was concerned that this was putting a church in a technical park area and this action had required a general plan amendment. Wang moved and Chang seconded to read Ordinance No. 11-2083 by title only, and that the City Clerk's reading would constitute the second reading thereof The motion carried by the following vote: Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Absent: None. Wang moved and Chang seconded to enact Ordinance No. 11-2083. The motion carried unanimously. The motion carried by the following vote: Ayes: Chang, Mahoney, Santoro, Wang, and Wong.Noes: None. Absent: None. Wang moved and Mahoney seconded to read Ordinance No. 11-2084 by title only, and that the City Clerk's reading would constitute the second reading thereof The motion carried by the following vote: Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Absent: None. November 1, 2011 Cupertino City Council Page 5 Wang moved and Mahoney seconded to enact Ordinance No. 11-2084. The motion carried unanimously. The motion carried by the following vote: Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Absent: None. 12. Subject: Second reading and enactment of Municipal Code amendments to Zoning Ordinance Recommended Action: Conduct second reading and enact Ordinance No. 11-2085: "An Ordinance of the City Council of the City of Cupertino amending various chapters including Title 19, and the addition of up to four chapters to simplify the Development Permit Process and improve readability" Description: Municipal Code Amendments to various chapters including Title 19, and the addition of up to four chapters to simplify the development permit process and improve readability. Jennifer Griffin reiterated her comments made during the previous item that for second readings information should be presented regarding what the item was about. For this item she was disturbed about these changes and wanted to know specifically what the Council was voting on. These changes were based on the comments of a matrix group about which she knew nothing. She believed total transparency was needed and did not trust many of these proposed changes. Keith Murphy suggested that even if a matter did not go to Council, but was heard at a different level, the decision should be made available for the public. He recommended that all agenda items be posted on the city's website so that the community could know what was going on. Community Development Director Aarti Shrivastava explained that administrative and legislative fees were not the issue in this case, but rather the process. Staff was asked if Council Members and Planning Commissioners had to pay the fee if they appealed a decision. The Community Development Director stated that staff would research this question and bring the information back to Council at a later date. Wang moved and Mahoney seconded to read Ordinance No. 11-2085 by title only, and that the City Clerk's reading would constitute the second reading thereof. The motion carried by the following vote: Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Absent: None. Wang moved and Mahoney seconded to enact Ordinance No. 11-2085. The motion carried unanimously. The motion carried by the following vote: Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Absent: None. Wang moved and Mahoney seconded to direct staff to post agendas and decisions for administrative hearings on the Cupertino website. November 1, 2011 Cupertino City Council Page 6 PUBLIC HEARINGS 8. Subject: Cupertino Village development approval extensions Recommended Action: Consider the Applicant's request to postpone the item. The applicant is requesting that the item be postponed to the December 20th, 2011 City Council meeting OR Consider the Planning Commission's recommendation to deny Modification Applications: M-2011-03 — Modification to a previously approved Use Permit (U-2007-06); and M-2011- 04 —Modification to a previously approved Architectural and Site Approval (ASA-2007-10); and M-2011-05 — Modification to a previously approved Architectural and Site Approval (ASA-2008-04) Description: Applicant: David Jamieson (Kimco Realty); Application Nos.: M-2011-03, M- 2011-04, M-2011-05; Location: 10825-10983 North Wolfe Road; APN's: 316 05 050, 51, 52; Descriptions: Modification to a previously approved Architectural and Site application (ASA-2008-04) to extend the expiration date for three years; Modification to a previously approved Use Permit (U-2007-06) to extend the expiration date for three years; Modification to an approved Architectural and Site application (ASA-2007-10) to extend the expiration date for three years; environmental determination exempt Assistant Planner Simon Vuong stated that the applicant was requesting a three-year extension due to current economic conditions. This project had been approved in 2008 and had received a one-year extension in 2010. In 2011 the request for extension was received. Staff had recommended approval but the Planning Commission had voted 2-2 resulting in a failed vote. Community Development Director Aarti Shrivastava explained the 2-2 vote of the Planning Commission, which had expressed concerns about the parking and community benefits. She said that the permits expired on August 11, 2011 and the request for extension had been received August 8, 2011. She also noted that there were no changes to the original application. City Attorney Carol Korade stated that the request for extensions had been made prior to the deadline. The permit was still in place as staff was taking the matter through the administrative process. She explained that it was actually a modification of a permit, as opposed to an extension. Mayor Wong asked staff to look into a policy whereby an applicant would need to apply for extensions six months prior to the expiration date. Dave Jamison, Director of Asset Management for Kimco Realty, stated that they were requesting an extension due to economic conditions. There was now renewed activity and they were looking forward to moving ahead with the project. Their tentative schedule for the next three years was currently being defined. There was no change to the parking plans in the original application, and they were still planning to enhance the existing parking at Cupertino Village. November 1, 2011 Cupertino City Council Page 7 Bill Brown, head of construction for Kimco Realty, West Coast Region, said that it had taken them a year and a half to get the original plans done, with $350,000 in consulting time. The ground contamination issues would not affect their plans and were being addressed as part of the original application. He clarified the parking on the project site, noting that they would work on short-term agreements with the adjacent property owners. Michael Gottwald asked if any retail was going to be removed and was told no, it would not be removed. He also received clarification of where the parking structure was going to be located. He suggested that Oktoberfest be brought back to the Cupertino Village site and that a German Hofhrau house be located there. Jennifer Griffin stated her support of the request for a three-year extension for this project. Cupertino Village was a vibrant area that was doing very well. Kimco Realty had done a very good job since they had taken over the project. In addition it was an important entrance to Cupertino and an area that had increased in property value since Apple had taken over the Hewlett Packard land across the street. Cathy Helgerson did not support the extension. She believed Council should take a stronger stand with developers and in this case the developers should come back when they were ready. In addition she believed that an environmental determination should have been done for this site and the pollution in the soil needed to be corrected. Mahoney moved and Chang seconded approve the extension for two years from November 1, 2011, including the following conditions. The motion carried unanimously. • Remove the parallel parking on the main driveway going to Cupertino Village from Pruneridge across from Bank of the West • Convert the egress into an appropriate ingress-egress driveway immediately north of the Duke of Edinburg along Wolfe Road, and reduce the retail square footage accordingly but maintain same width of existing driveway. • Increase the monetary contribution to the "Welcome to Cupertino" sign from $10,000 to $35,000 • Increase the monetary contribution to a traffic signal modification improvements from $75,000 to $85,000 at the intersection of Homestead Road and Wolf Road UNFINISHED BUSINESS -None RECESS Council was in recess from 8:35 p.m. to 8:50 p.m. November 1, 2011 Cupertino City Council Page 8 NEW BUSINESS 9. Subject: Consider drafting a Tobacco Retail License ordinance for the City of Cupertino Recommended Action: Provide direction to staff on whether to proceed with the development of a Tobacco Retail License ordinance and propose process and timeline for the development and adoption of the ordinance. Director of Parks and Recreation Mark Linder stated that Cupertino was part of a county- wide grant program. The focus of this program was to reduce second hand smoke and to encourage youths not to use tobacco products. There were three components to this grant program: 1) a smoke free recreational area ordinance which the Council adopted in May; 2) a conference organized for and by youth on developing messages that would be effective in urging youth to be tobacco free; and 3) consideration of adopting a tobacco retail license ordinance. The ordinance would not allow retailers to sell tobacco products to under age youth. San Jose and the County of Santa Clara had adopted such an ordinance. It could also be pointed out that there were already state and federal regulations in place, the sheriff's department conducted decoy operations to make sure retailers were complying with these regulations and such a city ordinance would add additional fees to those the retailers already had to pay. Staff was asking Council for direction on whether or not to prepare such an ordinance for Council consideration at a future meeting. Dave Schalker, owner of the Valero gas station at DeAnza/Stevens Creek, stated that there were already state and federal legislation in place and he did not believe this city ordinance would make any difference. The fines were severe if one was found not to be in compliance. He was providing a service to his customers and he wanted to keep the revenue in the community. Tom Robinson, President of Robinson Oil, stated that they owned and operated the Rotten Robbie stations and the one in Cupertino had been there for forty years. He did not support such an ordinance and stated that the one passed in San Jose had been based on misleading statistics. Carol Baker, Honorary Life Member of the California Division of the Board of Directors of the American Cancer Society, supported adoption of the tobacco retail license ordinance. She stated that 68 communities in California had supported strong tobacco licensing. Cathy Helgerson recommended using the grant money to provide educational programs and clinics for the youth on the importance of a tobacco free environment. She did not think the ordinance was the answer and questioned who would enforce it. Judy Hui stated that she was a 25-year businesswoman in Cupertino. She did not support the ordinance and did not believe it would be effective. She commented on the requirement that tobacco products would have to be out of sight and noted that space was often limited and this could be a problem. November 1, 2011 Cupertino City Council Page 9 Sharlamaine Hayes, representing the Tobacco Free Coalition in Santa Clara County, did not want to be unfair to local businesses, but felt this was a health and safety issue. She said that children will always experiment, and it would make a big difference if the tobacco products were put in a place where they could not see them. Council discussed this issue and they all supported taking steps toward a tobacco free environment, but at the same time wanted to consider the impact on local retailers. It was noted that legislation was already in place and the sheriff's department monitored conformance with that legislation. Council agreed that they wanted more information on the effectiveness of such an ordinance, and asked staff to work with the Chamber of Commerce on the possibility of establishing a voluntary program. Council Member Chang stated that he wanted to move forward at this meeting on the tobacco retail license ordinance. He supported the local retailers but was strongly against the sale of tobacco products to under age youth and believed this ordinance would be an additional help in seeing that such sales did not happen. Council Member Chang moved to have staff draft a tobacco retail license ordinance for Council consideration at the next council meeting. Motion died for lack of a second. Council directed staff to research effectiveness of tobacco retail license ordinances and advise Council through the city manager's weekly notes; and encouraged staff to work with the Chamber of Commerce to provide outreach to businesses in the community for a possible voluntary program. 10. Subject: Council meeting of December 20 Recommended Action: Consider cancelling meeting Mahoney moved and Santoro seconded to cancel the December 20, 2011 and January 3, 2012 Council meetings. Motion carried unanimously with Council Member Chang absent. STAFF REPORTS City Manager David Knapp reported that the traveling Viet Nam Memorial Wall was scheduled to be in Cupertino November 9 — 13. On the 10`h there would be a dedication ceremony and on the 11th there would be the annual Veterans Day events at Memorial Park. COUNCIL REPORTS Council Member Mahoney reported that earlier in the day he had attended two luncheons: Supervisor Liz Kniss' Asian American Heroes Luncheon and the Cupertino-Hsinchu Sister City Luncheon. Council Member Kris Wang noted that former President Bill Clinton had been the keynote speaker at a high tech convention in October at the Santa Clara County Convention Center. Mayor Gilbert Wong commented that he had attended the National League of Cities conference in Washington, D.C. where he attended a White House briefing on the President's jobs bill as well as other issues. One issue of particular interest to the Mayors and Council Members present was the Community Development Block Grant funding. Mayor Wong noted that it was a privilege to meet the President and other White House officials. November 1, 2011 Cupertino City Council Page 10 ADJOURNMENT At 9:48 p.m., the meeting was adjourned. Kimberly Smith, Ti , ` erk y 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.