101-Draft MInutes 01-14-2014.pdfCITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
CITY OF CUPERTINO PLANNING COMMISSION
DRAFT MINUTES
6:45 P.M. JANUARY 14, 2014 TUESDAY
CUPERTINO COMMUNITY HALL
The regular Planning Commission meeting of January 14, 2014 was called to order at 6:45 p.m. in the
Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA. by Vice Chair Paul Brophy.
SALUTE TO THE FLAG
.
ROLL CALL
Commissioners present: Vice Chairperson: Paul Brophy
Commissioner: Margaret Gong
Commissioner: Winnie Lee
Commissioner: Alan Takahashi
Commissioners absent: Chairperson: Don Sun
Staff present: City Planner: Gary Chao
Asst. City Attorney: Colleen Winchester
APPROVAL OF MINUTES:
Minutes of the December 10, 2013, Planning Commission meeting:
Acting Chair Brophy:
• Requested clarification on Page 7, Aarti Shrivastava’s statement that if a heritage tree is dying and
needs to be replaced, the owner has to either replace the tree or provide funds for a public tree. Page
10 states that a fee is not charged if the tree is dead.
Gary Chao, City Planner:
• Explained that Ms. Shrivastava was likely referring to the application fee for the tree removal
application which is going to be retroactive because the tree is dead already. Previously she is
discussing a replacement; if a tree is dead staff acknowledges that it is caused by nature and it is not
their original intent; therefore they are not charged for staff time to review the case; however, they do
need to come in to the Planning Department and apply for the paperwork; in which case if the tree is
a specimen tree then staff requests that the tree be replaced with something in kind.
• If for whatever reason physically the site does not lend itself to any replacement, there is the option of
the in-lieu fee that goes into the street tree fund. (The second remark refers to the fee for permits)
• Acting Chair Brophy clarified his comment on Page 15, about Douglas Fir trees, stating that his point
was that Douglas Fir is not native to the flat lands and that there were issues about watering trees, if
they tried to encourage them to be a heritage tree in flatlands.
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MOTION: Motion by Com. Lee, second by Com. Takahashi, and carried 4-0-0, Chair Sun
absent, to approve the December 10, 2013 Planning Commission minutes as presented
following clarification from staff.
WRITTEN COMMUNICATIONS: None
POSTPONEMENTS/REMOVAL FROM CALENDAR: None
ORAL COMMUNICATIONS: None
PUBLIC HEARING: None
CONSENT CALENDAR: None
OLD BUSINESS: None
NEW BUSINESS
2. Review of 2014 Work Program.
Discuss Work Program prior to submittal to City Council.
Gary Chao, City Planner:
• Said their goal was to discuss the Planning Commission’s recommendations to City Council for the
Planning Commission’s work program for 2014/15. A copy of the Council’s goals and objectives
from last year which spills over to 2014 are included in the staff report. The Council have not yet set
their goals and objectives for the coming year; historically the Planning Commission’s discussion
occurs after the Council has discussed their goals and objectives for the coming year. The Council has
tentatively scheduled discussion of their work program in March; the Planning Commission’s
comments will be forwarded to the Council for their consideration.
• He highlighted the items recommended to be included in the work program. The first item is the
city’s General Plan Amendment (GPA) process which is the biggest current project which will
continue to 2015. The purpose is to address development allocation, replenishing that, looking at
study areas, various corridors in the city as well as some of the key sites including Vallco. It is
already under way and will be committing most of staff’s resources and time.
• The second item, which stems from the GPA process is the state requirement for the city to update the
housing element. It is running in conjunction with the GPA process because it requires some
additional considerations of outreach. On January 23, 2014 a joint study session of the Housing
Commission and Planning Commission will be held to discuss the housing element goals and
objectives, and requirements for this year. During that meeting discussion will include potential sites,
parameters and the Commission’s input will feed into that process.
• The third item is the tree ordinance, which is going to City Council in March for their final
consideration. It will potentially come back to the Commission because based on community
feedback staff is asking Council to look at the parameters and directions again; they may reach a
decision or come back to the Commission for additional analysis.
• The fourth item is the Heart of the City Specific Plan (HOCSP) amendment which is an item from
Council’s work program from last year. There has been no specific discussion regarding what they
would like to see, but are looking at side yard setbacks, some of the calculations for density etc.
Depending on the GPA it may result in more items to be addressed within the HOCSP. If there are
any policy changes or anything that changes within the HOC corridor, the HOCSP would have to be
updated to follow suit.
• The fifth item is to update the Below Market Housing Manual and nexus study for the housing
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mitigation fees. The project came up a few years ago, but since the housing element is being updated
it will follow the housing element effort; the Council and Planning Commission will be part of a
study that will review the residential BMR housing mitigation program and fees.
• The sixth item is the climate action plan; the city is in the process already to solicit RFPs from
consultants to help staff with the process, Staff has already received numerous RFPs or proposals
from environmental firms that can help the city guide them through the process and evaluation,
outreach efforts and conducting interviews. Staff plans to go to City Council in about a month to have
them authorize the contract, formally initiate the project and return it to the Planning Commission.
The targeted timeframe is summer/fall 2014 to return for review and recommendation.
• The seventh item is Council’s desire from last year to consider evaluation of a teacher housing project
with a non-profit developer. As yet, there has been no interest shown or proposals from a non-profit
developer.
• When considering some of the projects and recommendations for staff to focus on in the next year or
two, it is prudent to consider some of the projects in the works that may go before the Planning
Commission for consideration, which is also demanding staff’s time.
• Some of the noteworthy projects include parkside trail; live/work project; apartment complex on
Foothill; some of the projects may come in shortly after the GPA process is approved because the
property owners have expressed interest of having a project that runs along the side of the GP
anticipating favorable approval from the City Council and they will follow up the GPA process with a
project immediately for the city’s consideration to benefit from the policy or the allocation and the
development parameters that the Council may consider approving. The projects may include but not
be limited to Cupertino Inn, Prometheus office complex and Vallco redevelopment.
• The work program will be based on the Council’s ultimate direction, goals and objectives; usually
they will consider staff resource and time commitment, knowing what is on the books already, and
they will prioritize Commission’s comments with community input. Once Commission’s
recommendations go forward to Council, and they in turn provide direction, staff will bring it back to
the Commission for a second look.
Gary Chao:
• Said the HOCSP had to be reviewed and recommended by the Planning Commission; it is an integral
part of the amendment process because most of the projects, if not all, are reviewed that would trigger
some of the development regulations.
• Said that teacher housing could be a sub-category of BMR housing. It is the Council’s desire to have
a project constructed that the city could partner with. The BMR housing manual and nexus study
relates to policies, fees and infrastructure that would guide the BMR project.
Acting Chair Brophy:
• Asked staff about the combined working on the GPA and the housing element; presently it is
envisioned that in the GPA they look at additional non-residential development on key sites; but at
the same time are facing a housing element which has always been a difficult subject to discuss in
Cupertino, especially as it affects possible impact on the school enrollment, etc. Does it make sense
to be looking at those two issues together because some of those sites may be able to have potential
apartments; they would have low impact on the school district and still help the city to meet the
RENA goals that are set by the regional planning agency.
Gary Chao:
• Said it did make sense; that is the purpose of the joint study session with the Housing Commission on
January 23rd. It is overlap and concurrent to the GPA process. As staff studies the special areas within
the corridors when the Council and communities engage in conversations about the non-residential
desires of the city or goals, it is inevitable to have the conversation with the community, Council and
Commission about housing opportunities; and also just as a bargaining chip as well because the
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reality is some of the projects may require a supplement benefit for developers to realize some of the
non-residential products they like to see, such as Vallco.
• There has to be something that would inject interest and benefit the developers and builders to be able
to do something worthwhile for the city’s consideration; as well as looking at existing sites. There
are opportunities to evaluate whether that’s the best and greatest use for the site and also the location.
• Does the theme for that corridor in that area lend itself to support residential; staff internally are
talking about allocations and development policy alternatives and the various levels of intensity of
recommendation, and are also considering the potential of housing in light of those recommendations
of options for the Council to consider. The Commission’s input would contribute towards that
recommendation, ultimately to City Council.
Com. Takahashi:
• Briefly discussed the reconciliation of current Vallco activity and possible development vs. the GPA.
There was mention that potentially something might be coming forward soon. He said he assumed
they were working under the existing General Plan as far as what they are allowed to; in terms of
submitting applications, it is a matter of timing and effectively trying to beat a revision to the General
Plan if there were a relatively large change in terms of Vallco.
Gary Chao:
• Said when the Council considered at the initiation of the General Plan, discussing the parameters and
consideration, they specifically clarified to staff and the community that because it takes a long time
for the General Plan to develop and there is some concern that they don’t want business to stop and
not know the outcome of the General Plan, the Council clarified that if there is a project that the
developer or owner is ready within Vallco that they can bring it to the city as with any process, if
there is no moratorium. They have to consider elements like circulation, connectivity because the
whole concept of the General Plan is to look at Vallco comprehensively. Ultimately it avoids a
piecemeal phase not knowing exactly the final outcome. Council and community would like to see it
as a whole division so that the policies could be developed to achieve that vision. Any project that
would come in during the interim before that vision is defined would have to work hard to
demonstrate to the community and the Council that there is provisions put in place; connections,
walkways and interface considerations for that future comprehensive master plan of Vallco.
• There are a select few property owners who are looking at options to take advantage of the current
General Plan and there is nothing to lose because they could get a project approved and still wait and
see if they may benefit from and assess their options later on. The market is there, the financial
investment is there, there are many possible considerations that may be iunning ahead of the General
Plan process that warrants their interest in coming before the city before the General Plan process is
done. Staff will try to connect the project as it comes in beforehand with the vision they are talking
about with the Council and community in Vallco as a whole. There are five general entities that own
land; there may be entities that are very involved that own long term leases with Vallco; staff has
reached out to all of them, and they are fully aware of what we are doing; and many of them are
excited about the opportunity.
Acting Chair Brophy opened the public hearing; there was no one present who wished to speak; the
public hearing was closed.
Com Lee:
• Said she supported the work program as presented.
Com. Takahashi:
• Said it was comprehensive and well aligned with what they were attempting to accomplish.
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Acting Chair Brophy:
• Discussed the BMR nexus study and reviewed the law passed by the legislature a few years ago
called the Vacancy Decontrol law, which specified that any rent control units upon the tenants
moving out were subject to what could be rented at market rate uses. The State Supreme Court ruled
in a Los Angeles case that affordable housing units were subject to this law and that notwithstanding
any commitments required by the city on affordable housing, that once the initial tenant left, that unit
was then available for market rate rentals. This year the legislature passed a law to overturn that
decision; however, Gov. Brown vetoed that bill and his argument based on his experiences as Mayor
of Oakland was that developing housing in California is extremely complicated and expensive and
that he felt that this attempt to bring this back in would be counterproductive to the long term interest
of the state in terms of developing new housing to serve the growing population. The point of the
whole BMR nexus study is to skirt around that, the law as it was currently set by the Supreme Court
and left in tact by the governor saying that the construction of new market rate housing somehow
generates a demand for more low income housing independently of everything else.
• Said his background in real estate development has been in retail and industrial building, not
residential, but he knows how difficult it is to develop to make residential rental units work. Given
that the city has several million dollars in their BMR housing fund courtesy of the Apple deal, he
recommended to the Commissioners and then to City Council that they consider dropping the item
and not try to further complicate it to develop market rate rental housing in Cupertino.
City Attorney Colleen Winchester:
• Said whether or not the nexus study is legally required in conjunction with the BMR housing project,
is something they would need to defer to a determination at the time when doing the BMR housing
and the nexus study and whether or not that is a legally required component of the entire program.
Com. Brophy’s recommendation has been noted and staff can confer with the consultants with respect
to the BMR issue. It would have to be determined legally whether or not that is something they could
or could not drop as opposed to being a legal component of the BMR.
Acting Chair Brophy:
• Said as a result of the Apple transaction the affordable housing fund was a rich fund. He asked why
they were required to do a nexus study; his understanding being that the study was only needed if
they wanted to impose affordable housing charges onto a market rate rental project.
Gary Chao:
• Clarified that the BMR manual was an update of the existing program; there has been a mitigation
manual for many years. He said he could not speak to the legality in terms of the Supreme Court
decision or requirement of the city.
Acting Chair Brophy:
• Said the term “nexus” came about as a result of the Supreme Court decision; it was clearly a way to
get around the decision to be able to impose fees on the developers at market rate rental. Said he did
not believe there was anything in the state law that requires them to get around it and it’s not even
clear that the so-called nexus studies will stand up in court. He said to say now that they are required
to do them seems to make a huge leap that is not in the record; I think the fact that the governor when
given the opportunity to overturn the decision by signing the bill that the legislature passed, clarifying
what the term vacancy decontrol, specifically chose to veto that bill on the grounds it was making the
development of rental housing more difficult in a place where it is already difficult. It seems to be a
major policy decision to go against the governor and against what the law is. He said they may be
required to have a BMR handbook, but there is no requirement to do a nexus study unless they are
looking to extract funds or units from future developers of rental units. He said they should take the
governor’s position, especially given that they have such a huge affordable housing fund already, and
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are not short of funds.
• He suggested as a policy issue they recommend to City Council to consider dropping the nexus study;
he was not arguing against the BMR handbook, but arguing against the nexus study portion of it.
Gary Chao:
• Said it would be part of the Commission’s comment to the Council regarding the item depending
upon how the Commission feels about it. If it comes back, it will likely be a topic of discussion for
that process.
Acting Chair Brophy:
• Said he would like the issue to go before the Council for their consideration. Affordable housing is
one of their biggest problems in the Bay Area; it is not just the traditional poor people, but people
who have lived in traditional middle income market rate housing are finding it harder to live in
Cupertino and it appears the best solution is to encourage the production of more housing as long as it
meets the design standards they have and doesn’t have an impact upon the school district. It is
imposing an additional burden.
Gary Chao:
• Said there are many recent court rulings, overturns and clarifications on the mitigation fee as it relates
to rental apartments. Staff is not prepared this evening to discuss the final verdict or if a final
determination has even been reached. Staff understands the comment, and will provide additional
information to Commissioners on the side or after the fact in terms of providing the current status of
things and the legality of the mitigation and nexus study.
Acting Chair Brophy:
• Said it was his last year on the Commission, and he was again suggesting they study the parking
requirements. Certain uses are grossly under-parked such as grocery stores and restaurants; while
other uses are over-parked. He cited a good combination such as the Lucky Center where Ranch 99
Market soaks up too much parking, but CVS doesn’t need that much. There is clearly a problem with
Marina or Whole Foods or Ranch 99 in Cupertino Village. As they look to becoming a more
intensively developed city, they need to relook at the parking issue.
Com. Lee:
• Said she supported Acting Chair Brophy’s comment; it was apparent on some of the reviews Ranch
99 market still had a bad parking problem.
Com. Takahashi:
• Relative to the nexus study comments, he referred to the second paragraph of Item 9 where it
mentioned a possibility of a joint study with other cities.
Acting Chair Brophy:
• From his perspective he said he felt it was a bad policy, given that it is one of the top public policy
issues in the Bay Area; Silicon Valley Leadership Group lists that as their number one issue. He said
he did not feel that to join in a conspiracy with other cities to make it harder to build rental housing
was his idea of a step forward.
City Attorney Colleen Winchester:
• The study determines if there is an appropriate nexus between the fee and a fee for not developing
affordable housing. Com. Brophy’s concern relative to increasing a fee on the developer, the city
should be using other funds for affordable housing rather than imposing the burden on the developer.
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Acting Chair Brophy:
• Said the funds already in the affordable housing fund were augmented by the Apple deal; he was not
advocating taking money out of the general fund. To the extent is called a study, there should be no
confusion that it is a neutral study looking at the issue with no prejudgment; it is a study aimed to
justify putting additional burdens on developers of market rate housing.
City Attorney Colleen Whitaker:
• Said she would not correct Com. Brophy on his perception of the components, but legally the goal of
the study is to determine the appropriate level of fees to be imposed when non-affordable housing or
market rate housing is being built. The study then determines the nexus between the construction and
affordable housing, which is the purpose of the study.
Com. Lee:
• Said there still has to be programs in place, which is the reason for the study.
Acting Chair Brophy:
• Said they already have an affordable housing fund and programs to encourage BMR housing; fees
charged on For Sale housing on office and commercial which is a much stronger argument to say that
office and commercial development generates a demand for housing rather that somehow market rate
housing generates a demand for more BMR housing. Said he was not objecting to methods of
collecting money; but questioning why they would spend time and money on a study aimed at making
it harder to develop market rate rental housing.
Gary Chao:
• Reiterated that they would pass the concerns on to the City Council for their consideration. The topic
is a very complex topic.
Acting Chair Brophy:
• Said he has had concerns about the parking for many years. He asked for input from the
commissioners in the event a slot became open.
Com. Takahashi:
• Parking is always a sensitive issue when there is a shortage of parking; and having under-parked large
paved asphalt parking lots are just as big an issue. The advantage of challenge parking is it will give
an incentive for alternate modes of transportation; which needs to be considered in the parking
equation; given real estate is in such demand, striking that balance is something to pay attention to.
Com. Gong:
• Said it is also a factor of the success of the business; if no one wants to go to the restaurant, there is
not a parking problem.
Acting Chair Brophy:
• He cited examples where there was not enough parking such as BJs restaurant; Elephant Bar has
parking problems but it has other uses which offset the lack of parking. A better parking ordinance or
more accurate parking ordinance would encourage larger developments that have mixed uses as
opposed to free standing grocery stores or restaurants; it would result in better quality retail
development.
Com. Gong:
• Said if it was freestanding, the options for developing parking would be not just a flat surface; it is
costly to go up or down but that could provide incentive to the developer in a different way.
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Com. Lee:
• There are certain cities that call for more parking requirements per square foot for retail than a
medical office; it may be beneficial to evaluate Cupertino’s parking ordinance compared to other
cities, and drive around the city to see which uses are under-parked and which are over-parked.
Acting Chair Brophy:
• Suggested that it be added to the list if Council was interested and they decide there are additional
resources.
Discussion concluded; no action was needed.
REPORT OF THE PLANNING COMMISSION
Environmental Review Committee: No report.
Housing Commission: No report.
Mayor’s Monthly Meeting With Commissioners:
• December meeting cancelled; no January meeting. Com. Lee will attend the February meeting.
Economic Development Committee Meeting: No meeting
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT:
Gary Chao reported:
• City Attorney reminded them to set the agenda for the January 23 Joint Housing/Planning
Commission Study Session/Workshop, at 6:30 p.m.
• 2014 Planning Commission Academy, March 26-28 in Burlingame, register ASAP since it fills up
early. Contact Julia
• State of the City Address: January 29, 2014, 11:30 a.m. to 1:00 p.m.
ADJOURNMENT:
• The meeting was adjourned to the January 23, 2014 Joint Housing Commission/Planning
Commission meeting at 6:30 p.m. EOC Conference Room, City Hall Building.
Respectfully Submitted: /s/Elizabeth Ellis
Elizabeth Ellis, Recording Secretary