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CC Resolution No. 06-175 RESOLUTION NO. 06-175 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO DENYING THE PETITION OF JANE WU SEEKING COUNCIL RECONSIDERATION OF ITS APPROVAL OF APPLICATION NO. U-2006-06, A USE PERMIT FOR THE CONSTRUCTION OF AN OFFICE BUILDING AND PARKING GARAGE, TO BE LOCATED AT 10495 N. DE ANZA BL VD. IN CUPERTINO, ASA-2006-06, TR-2006-09, AND EA-2006-09, A MITIGATED NEGATIVE DECLARATION. Whereas, Application No. U-2006-06, a use permit for the construction of an office building and parking garage, to be located at 10495 N. De Anza Blvd. in Cupertino, ASA-2006-06, TR- 2006-09, and EA-2006-09, a mitigated negative declaration, was approved by the City Council with conditions on August 15, 2006; and Whereas, Jane Wu has requested that the City Council reconsider its decision under the provisions of section 2.08.096 of the City's ordinance code; and Whereas, the City Council has considered all relevant evidence presented by the parties at all hearings, including evidence presented at the October 17,2006 reconsideration hearing. NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS: 1. The petitioner's Reconsideration Petition is defective on its face in that it does not offer proof of facts as required by Municipal Code section 2.08.096. 2. The petitioner has made no offer of new relevant evidence that, in the exercise of reasonable diligence, could not have been produced at any earlier city hearing. (See Municipal Code ~ 2.08.096B(I).) 3. The City Council did not exclude any evidence presented by the petitioners at any prior city hearing. (See Municipal Code ~ 2.08.096B(2).) 4. The City Council has proceeded entirely within its jurisdiction regarding the application for a use permit. (See Municipal Code ~ 2.08.096B(3).) 5. The petitioner has failed to present any evidence that the City Council failed to provide a fair hearing. (See Municipal Code ~ 2.08.096B(4).) 6. The petitioner has failed to demonstrate that the City Council abused its discretion regarding the application. (See Municipal Code ~ 2.08:096B(5).) Specifically, the City Council determines that: a. The City Council proceeded in a manner required by law. b. The City Council's decision is supported by findings of fact. c. The findings of fact related to the City Council's decision were supported by substantial evidence in the record of proceedings. Resolution No. 06-175 2 7. The specific allegations contained in the petition for reconsideration are refuted by specific City Council findings, which are attached to this resolution and incorporated herein. 8. The petitioner's Petition for Reconsideration of the City Council's determination of August 15,2006 is DENIED PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 17th day of October 2006, by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: Lowenthal, Wang, Kwok, Mahoney, Sandoval None None None ATTEST APPROVED: . ~ Cit~ ;} ./.. ;//' If \?~.~ Mayor, City of Cupertino Resolution No. 06-175 3 CITY COUNCIL FINDINGS IN RESPONSE TO PETITION FOR RECONSIDERATION Pursuant to Cupertino Municipal Code section 19.124.070 a conditional use permit may be granted where the decision maker makes the following findings: 1) The proposed use, at the proposed location, will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience; 2) The proposed use will be located and conducted in a manner in accord with the Cupertino Comprehensive General Plan and the purpose of this title. In granting the use permit application U-2006-06 (Chang Architecture, former Any Mountain building), the City Council finds: a. that the use was in accord with the Cupertino General Plan Land Use Map; and, b. that the use of the subject property will not be detrimental to the public health, safety, general welfare, or convenience. Municipal Code section 2.08.096 states: "A petition for reconsideration shall specify, in detail, each and every ground for reconsideration. Failure of a petition to specify any particular ground or grounds for consideration, precludes that particular omitted ground or grounds from being raised or litigated in a subsequent judicial proceeding. The grounds for reconsideration are limited to the following: 1. An offer of new relevant evidence which, in the exercise of reasonable diligence, could not have been produced at any earlier city hearing. 2. An offer of relevant evidence which was improperly excluded at any prior city hearing. 3. Proof of facts which demonstrate that the City Council proceeded without, or in excess of its jurisdiction. 4. Proof of facts which demonstrate that the City Council failed to provide a fair hearing. 5. Proof of facts which demonstrate that the City the City Council abused its discretion by: a. Not proceeding in a manner required by law; and/or b. Rendering a decision which was not supported by findings of fact; and/or c. Rendering a decision in which the findings of fact were not supported by the evidence. " A petition for reconsideration of Application No. U-2006-06, a use permit for the construction of an office building and parking garage, to be located at 10495 N. De Anza Blvd. in Cupertino, ASA-2006-06, TR-2006-09, and EA-2006-09, a mitigated negative declaration, was submitted by Jane Wu on August 25, 2006. Resolution No. 06-175 4 FINDINGS Ms. Wu's Petition for Reconsideration make the following assertions: 1. An offer of new relevant evidence which in the exercise of reasonable diligence could not have been produced at any earlier city hearing: WU PETITION FINDING "After the proposed building was passed, it The comment by the two council members was brought up by Commissioners K wok is irrelevant. Since the vote was already and Wang that Peter Pau should continue taken, this did not constitute a directive negotiations with the Mariani Business from the City Council and was not a part of Center." the Council resolution. It was given in the spirit of , encouraging good neighborliness. Response: The irrelevant comment by the two council members is not new relevant evidence. 2. Proof of facts which demonstrate that the City Council failed to provide a fair hearing. WU PETITION FINDING ".. .our representative, Sam Wu, was not To provide fair and equitable hearing, all able to present his entire conversation members of the public are allotted the same before the City Council dismissed him. amount of time to address the Council. In There were many key points in his addition to Mr. Wu, the Council also heard presentation that he was unable to present from Judith Rentschler, attorney for the to the City Council." Mariani Business Center. Additionally, the Council received and considered Mr. Wu's letter of August 15, 2006, which outlined his key points and Ms. Rentschler's letter of August 14, 2006. Mayor Lowenthal "stated that 'it was not a This is an incorrect paraphrase of Mr. parking issue,' and therefore, the easement Lowenthal's statement. In fact, after Mr. would not have to be obeyed. ... If this Wu's presentation Mr. Lowenthal asked if building were to be built according to plan, his two issues were 1) inequity of use of it would definitely affect our parking rights the driveway and 20 safety of the clients. by affecting how our patients would access Mr. Wu added his concern that the building the building and, ultimately, determining would block the view. After public input, where they would park." Mr. Lowenthal stated," I didn't hear any issue on parking itself. I think there are design issues." Response: The hearing was fair and the Council received and considered Mr. Wu's evidence. Resolution No. 06-175 5 CONCLUSION The petition for reconsideration did not comply with Municipal Code Section 2.08.096 in that the petition did not meet the requirements by offering any of the following: 1. An offer of new relevant evidence which, in the exercise of reasonable diligence, could not have been produced at any earlier city hearing. 2. An offer of relevant evidence which was improperly excluded at any prior city hearing. 3. Proof of facts which demonstrate that the City Council proceeded without, or in excess of its jurisdiction. 4. Proof of facts which demonstrate that the City Council failed to provide a fair hearing. S. Proof of facts which demonstrate that the City the City Council abused its discretion by: a. Not proceeding in a manner required by law; and/or b. Rendering a decision which was not supported by findings of fact; and/or c. Rendering a decision in which the findings of fact were not supported by the evidence." In addition the Council finds that with the conditions imposed by the Council: 1) The proposed use, at the proposed location, will not be detrimental or InJUrIOUS to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience; 2) The proposed use will be located and conducted in a manner in accord with the Cupertino Comprehensive General Plan and the purpose of this title. In reviewing the Petition filed by Jane Wu to Reconsider the Council's decision to grant the applications as noted in detail above, the City Council finds that there is no relevant evidence or proof of facts that support any of the grounds for reconsideration as required by Cupertino Municipal Code Section 2.08.096 B. 1-5.