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CC 09-17-2013 1•0 I9s. CUPERTINO APPROVEI) MINUTES CUPERTINO CITY COUNCIL Regular Meeting Tuesday September 17, 2013 CITY COUNCIL MEETING PLEDGE OF ALLEGIANCE At 6:52 p.m. Mayor Orrin Mahoney called the City Council meeting to order in the Community Hall Council Chamber, 10350 Torre Avenue, Cupertino, CA and led the Pledge of Allegiance. ROLL CALL Present: Mayor Orrin Mahoney, Vice Mayor Gilbert Wong, and Council members Barry Chang, Mark Santoro, and Rod Sinks. Absent: None. CEREMONIAL MATTERS AND PRESENTATIONS 1. Subject: Proclamation Recognizing the Sierra Club Loma Prieta Chapter Recommended Action: Present proclamation Mayor Mahoney presented the proclamation to Gary Bailey from the Sierra Club Loma Prieta Chapter. 2. Subject: Cupertino student delegates share their experience in Toyokawa, Japan Recommended Action: Receive the presentation Debbie Textor, Executive Director of Pupil Services and Special Education for the Cupertino Union School District (CUSD) invited the students to share their stories. The Cupertino student delegation shared their experiences from their trip to Toyokawa, Japan. Tuesday, September 17, 2013 Cupertino City Council Asif Kausar, President of the Toyokawa Sister City thanked Council and the City of Cupertino for its support. 3. Subject: Parks and Recreation proclamation for Fall Prevention Awareness Day Recommended Action: Present proclamation Mayor Mahoney presented the proclamation to Tamar Semerjian, Professor at San Jose State in the Kinesiology Department and the Director of the Silicon Valley Healthy Aging Partnership, and the Falls Prevention in Santa Clara County Task Force. She noted that more information could be found at www.svhap.org. POSTPONEMENTS Mayor Mahoney announced that item number 12 was being tabled. He also noted that item number 22 was being postponed to a later date due to documents received at the last minute that needed legal review before the Council could make an informed decision. He also asked Council to move item number 20 before number 19. Council concurred on all matters. ORAL COMMUNICATIONS Mayor Mahoney announced that if anyone present wished to speak on item number 22, they could speak under Oral Communications since the item had been postponed. Kevin McClelland from the Cupertino Chamber of Commerce invited everyone to the annual Diwali Festival on October 12 at Memorial Park. He noted that the Chamber had had a good year with many events such as the State of the City, the Lunar New Year luncheon, and the STAR awards. He also said that the Chamber had hired Anjali Kausar as its Executive Director. Slava Shabrov, President of the Fine Arts League of Cupertino (FALC) said that the group would be celebrating its 50th anniversary at the Fall Fest this coming weekend with a fine arts show. He explained the group organizes four art shows a year and that some of the artwork is displayed in the Library and at the Quinlan Community Center (QCC). He invited everyone to the Fall Fest art show reception on Friday, October 20 at 7:00 p.m. at the QCC. He noted that 85 original art works would be displayed for competition as well as showing the work of this year's Distinguished and Emerging Artists. Tim Brand, Board member for Bay Area for Clean Environment (BACE) said that Lehigh sent a letter to the City Council regarding the tax status of BACE and he wanted Tuesday, September 17, 2013 Cupertino City Council to reassure Council that the organization is sound. He read and submitted into the record a letter from BACE's accountant Wayne J. Dippel explaining the tax exempt status. He also distributed a tax-exempt status acknowledgement letter from the Franchise Tax Board regarding BACE. Stuart Flashman, attorney for BACE regarding the lawsuits filed against Lehigh, said that the letters Lehigh sent at the last minute compares to a "hit piece" in a political campaign to throw Council off-balance and disrupt a productive discussion. He also noted that the law firm Lehigh hired, Nielsen Merksamer, likes to attack citizen groups and gave the following example: This firm had been hired by Toll Bros a few years back to attack a citizens' referendum on a development project. He explained that the Santa Clara County Supreme Court ruled this ai:tack non-valid. The ballot measure was brought to the voters and turned down. Rhoda Fry said she was concerned about i:he long history of political enmeshment between Lehigh and politicians and noted the following examples: from 1982-1989, Tom Legan was an employee at Kaiser Permanente (now called Lehigh) and was also a County Supervisor. He was called up by the Fair Political Practices Commission (FPPC) for voting on items that supported his employer; from 1987-1995 Barbara Koppel was on the Cupertino City Council and also an employee of Kaiser and served on the Bay Area Air Quality Management District (BAAQMD). She ran for County Supervisor and was brought up on bad campaign contributions and ethics issues, especially receiving too much money from Kaiser and also taking too much money from Assemblyman Jim Cunneen who is now an advisor to Lehigh; from 1989-2005 Sandra James was a Cupertino Union School District Board member and then a Cupertino City Council member. She now works for Lehigh in public relations. She showed a picture of Lehigh as seen from Stevens Creek Boulevard and how the view is affected. Karen Del Compare urged Council to not be unduly pressured by Lehigh's attorneys and lobbyists and said she hoped Council would vote unanimously to join the amicus brief. Darrel Lum on behalf of the Concerned Citizens of Cupertino (CCC) who contributed to the draft EIR for Apple Campus 2, thanked staff for making the response legible and accessible to the public. Paula Wallis, BACE Board member, said that it came to BACE's attention that Council had received a letter questioning the organization's non-profit status and the motivation of its Board members. She said she wanted to assure Council that all of the BACE board members are volunteers, none of them stand to gain financially from any of BACE's activities, and all of the donations the organization has raised over the past Tuesday, September 17, 2013 Cupertino City Council two years since it was founded in 2010 have gone to BACE causes. She noted that BACE continues to monitor the roughly 12 agencies that have oversight of the Lehigh facility and explained that BACE was organized because no one appeared to have the public's interest, Council doesn't have jurisdiction over the facility, and the County and State representatives appear to be too far removed from the situation to care about it. Cathy Helgerson said she was in favor of the amicus brief and wanted to see the letters that Council had received regarding BACE. She noted that Lehigh had said they were applying for a permit but didn't say what that permit was, but probably for a new pit. She said it was important to not have another pit mine for additional 80 years in order to protect Silicon Valley and the Bay Area. She explained that the destruction of 600 acres and 30,000 trees in order to mine limestone for cement isn't acceptable. She said she hopes that Mid-Peninsula succeeds with their lawsuit regarding the pollution from Lehigh. She noted that the San Andreas Fault line was only a mile away from where Lehigh wants to build the new pit mine and she urged the shutdown of the plant to stop the pollution. Don MacCubbin said that Lehigh has demonstrated over the years that they need to be regulated and the County needs to get on the ball and start regulating as they should. He urged Council to put City pressure on the County to start doing their job of regulating Lehigh and make Lehigh follow the rules. Teri Wiss urged Council to join in the amicus brief because she said we learn more everyday how heavy metals impact health and brain development. She noted that we can't allow the same standards from when Lehigh first began to dictate current and future expectations. Gary Ettinger said that the County Board of Supervisors voted to give Lehigh vested rights despite their own counsel recommending against it. He said that this is putting company money above people's health and that the amicus brief was getting momentum because it was trying to rectify a wrong. He noted that citizens look to the elected officials to have their best interest at heart, especially when it comes to their health and that this must be a priority in the community. Susan Ha said that Council represents the citiLzens and that the citizens want them to be part of the community and to consider health a serious issue. Bob Hogin said one of biggest issues in Cupertino is what's going on environmentally at Lehigh and Stevens Creek Quarry. He said he would like to see change happen and Tuesday, September 17, 2013 Cupertino City Council looks to the Council as leaders to give some direction and guidance for how to get more involved with important issues like the environment. CONSENT CALENDAR Wong moved and Chang seconded to approve the items on the Consent Calendar with the exception of item number 12 which was tabled. Ayes: Chang, Mahoney, Santoro, Sinks, and Wong. Noes: None. Abstain: None. Council member Sinks recused himself from item number 16. 4. Subject: Approve the August 20 City Council minutes Recommended Action: Approve the minutes 5. Subject: Accept Accounts Payable for period ending July 26, 2013 Recommended Action: Adopt Resolution No. 13-072 accepting Accounts Payable for period ending July 26, 2013 6. Subject: Accept Accounts Payable for period ending August 2, 2013 Recommended Action: Adopt Resolution No. 13-073 accepting Accounts Payable for period ending August 2, 2013 7. Subject: Accept Accounts Payable for period ending August 9, 2013 Recommended Action: Approve Resolution No. 13-074 accepting Accounts Payable for period ending August 9, 2013 8. Subject: Accept Accounts Payable for period ending August 16, 2013 Recommended Action: Approve Resolution No. 13-075 accepting Accounts Payable for period ending August 16, 2013 9. Subject: Accept Accounts Payable for period ending August 23, 2013 Recommended Action: Adopt Resolution No. 13-076 accepting Accounts payable for period ending August 23, 2013 10. Subject: Accept Accounts Payable for period ending August 30, 2013 Recommended Action: Adopt Resolution No. 13-077 accepting Accounts Payable for period ending August 30, 2013 11. Subject: Second Amendment to the Agreement between the City of Cupertino, the Cupertino Union School District, and the Cupertino Schools Public Facilities Tuesday, September 17, 2013 Cupertino City Council Financing Corporation pertaining to the maintenance and improvement of certain open space areas within certain school sites Recommended Action: Authorize the City Manager to execute a Second Amendment to the Agreement 12. Subject: Reimbursement of up to $2,000 in travel expenses for travel to Toyokawa, Japan, by a City Council Member to attend an invited cultural event and a long- standing Sister City relationship Recommended Action: Approve reimbursement of up to $2,000 in travel expenses for travel to Toyokawa, Japan, for City Council international travel expenses from the City Council budget line item Under Postponements, this item was tabled. 13. Subject: Authorize the Mayor to sign a letter from the Technology Information and Communication Commission (TICC) to be sent to the California Public Utilities Commission (CPUC) opposing the encryption of basic cable service Recommended Action: Authorize the Mayor to sign the letter 14. Subject: Parks and Recreation Commission Work Plan for FY 2013 -2014 Recommended Action: Approve the Parks and Recreation Commission Work Plan 15. Subject: Alcoholic Beverage License Application, Beija Flor Cafe, 19622 Stevens Creek Boulevard Recommended Action: Approve Alcoholic Beverage License, Beija Flor Cafe, 19622 Stevens Creek Boulevard 16. Subject: Set a public hearing and adopt a resolution related to the City's intent to vacate Pruneridge Avenue, between Wolfe Road and Tantau Avenue, and twelve various public easements Recommended Action: Adopt resolution No. 13-078, setting a public hearing for October 15, 2013 at 5:00 pm 17. Subject: Summarily vacate a portion of the slope easement along 22084 Clearwood Court Recommended Action: Adopt Resolution No. 13-079 18. Subject: Adopt a resolution granting real property to the State of California for the Don Burnett Bicycle-Pedestrian Bridge Tuesday, September 17, 2013 Cupertino City Council Recommended Action: Adopt Resolution No. 13-080, authorizing the City Manager to execute the Grant Deed to complete the granting of real property to the State of California SECOND READING OF ORDINANCES —None Mayor Mahoney reordered the agenda to take up item number 20 next under Ordinances and Actions Items. ORDINANCES AND ACTION ITEMS 20. Subject: Consider approval of the Library Commission's recommendation for the appointment of the new Cupertino Poet Laureate Recommended Action: Adopt Resolution No. 13-081 approving the Library Commission recommendation and appointing the new Cupertino Poet Laureate Library Commissioner Ann Stevenson announced the nomination of Jennifer Swanton Brown as the new Poet Laureate beginning Oct 1, 2013 for a two-year term. Ms. Swanton Brown introduced herself and read one of her own poems called Birthday with Horses. Past Poet Laureate David Denny thanked Council and noted he just published a new book of poems called Fool in the Attic. Ms. Stevenson introduced members of the Poet Laureate committee. She invited everyone to a Poet Laureate reception on Sunday, November 10 from 2-5 in the Cupertino Community Hall. Chang moved and Sinks seconded to adopt Resolution No. 13-081 approving the Library Commission recommendation and appointing the new Cupertino Poet Laureate. The motion carried unanimously. PUBLIC HEARINGS 19. Subject: Applications for a subdivision of a single-family zoned lot into three (3) residential lots and one (1) private roadway area, and rezoning of a single-family zoned property from R1-10 to R1-7.5 Recommended Action: Conduct the first reading of Ordinance No. 13-2112:"An Ordinance of the Cupertino City Council approving the rezoning of a .96 gross acre lot, from R1-10 (minimum lot size of 10,000 square foot) to R1-7.5 (minimum lot size Tuesday, September 17, 2013 Cupertino City Council of 7,500 square feet) located at 20840 McClellan Rd, APN 359-20-031"; The Planning Commission recommends that the City Council approve application TM-2012-03 per Resolution No. 6722; Conduct the first reading and approve application Z-2012-01 per Resolution No. 6723; and approve the Mitigated Negative Declaration Description: Application No(s): TM-2012-03, Z-2012-01 EA-2012-04; Applicant: James Chen (Cherryland, LLC); Location: 20840 McClellan Road; Parcel Map to subdivide an existing single family lot into 3 residential lots and 1 common area lot; Re-Zoning of a .96 acre parcel from Single Family Residential (R1-10) to Single Family Residential (R1-7.5) Written communications for this item included staff PowerPoint slides. Associate Planner Simon Vuong reviewed the staff report. The applicant, Sue Jane Han, explained her project in further detail. Larry Yee, owner of property next door, said he was concerned that the second floor of the project would affect the sunlight for his solar panels. He said he hopes to have a conversation with architect regarding mitigation ideas. Wong moved and Chang seconded to approve the Mitigated Negative Declaration (EA-2012-04). The motion carried unanimously. Wong moved and Chang seconded to approve Application No. TM-2012-03 with direction to staff to report back to Council if the neighbor still has concerns. The motion carried unanimously. Wong moved and Chang seconded to read the ordinance No. 13-2112 (Z-2012-01) by title only and that the City Clerk's reading would constitute the first reading thereof. Ayes: Chang, Mahoney, Santoro, Sinks, an.d Wong. Noes: None. Abstain: None. ORDINANCES AND ACTION ITEMS - continued 21. Subject: Consider a City sponsorship request from the non-profit organization, Quota International of Cupertino, for the November 5, 2013 Silicon Valley Positive Aging Forum: Housing, Community Sr Longevity Recommended Action: Approve or deny the request to co-sponsor this event Director of Parks and Recreation Carol Atwood reviewed the staff report. Tuesday, September 17, 2013 Cupertino City Council Barbara Rogers said that this was a service project for Quota and they wouldn't make any money from the forum. Chris Kennedy, Executive Director of Executive Director of The Institute for Age-Friendly Housing who is putting on forum said they wanted to speak to Quota on how seniors fare in Cupertino. She noted they would give reduced rate to any City personnel who attend, but she didn't yet know what the general rate to attend the forum would be. Santoro moved and Wong seconded to approve the request to co-sponsor this event. The motion carried unanimously. 22. Subject: Amicus Brief in No Toxic Air, Inc. v. Santa Clara County, et al. (Calif. Court of Appeal Case No. H039547, Appeal from Santa Clara Co. Superior Court Case No. 111CV201900) Recommended Action: Consider joining the Midpeninsula Regional Open Space District ("MROSD"), the Town of Los Altos Hills, the City of Los Altos and any other cities that may choose to participate in an amicus curiae brief in the litigation listed above, and authorizing a monetary contribution for preparation of the amicus brief Under postponements, this item was postponed and will return on a future agenda. Written communications for this item included various emails from residents regarding the Amicus Brief and a letter from Nielsen Merksamer Parrinello Gross & Leoni LLP law firm regarding Bay Area for Clean Environment (BACE). REPORTS BY COUNCIL AND STAFF 23. Subject: Public Works Construction Project Updates Recommended Action: Present Construction Project Update Report Written communications for this item included staff PowerPoint slides. Director of Public Works Timm Borden presented the construction project update report via a PowerPoint presentation. Council received the report. City Manager David Brandt said that residents would receive postcards noting the upcoming Apple project dates. Council member Chang addressed implications from Lehigh and said that he wanted to make it clear that he has never received any money from Bay Area for Tuesday, September 17, 2013 Cupertino City Council Clean Environment (BACE). He also noted that he has never asked for reimbursement in all the time he has been on the City Council. Council members highlighted the activities of their committees and various community events. ADJOURNMENT At 8:50 p.m., the meeting was adjourned to Tuesday, October 1 beginning at 3:00 p.m. for a joint study session with the Planning Commission regarding Apple Campus 2 Final Environmental Impact Report, Quinlan Community Center Cupertino Room, 10185 N. Stelling Rd., Cupertino, CA 95014. G--/A0\- --e_STelki,1 ki Grace Schmidt, City Clerk Staff reports, backup materials, and items distributed at the City Council meeting are available for review at the City Clerk's Office, 777-3223, and also on the Internet at www.cupertino.org. Click on Agendas & Minutes, then click on the appropriate Packet. Most Council meetings are shown live on Comcast Channel 26 and AT&T U-verse Channel 99 and are available at your convenience at www.cupertino.org. Click on Agendas & Minutes, then click Archived VVebcast. Videotapes are available at the Cupertino Library, or may be purchased from the Cupertino City Channel, 777-2364.