09-01-15 Searchable packetCITY OF CUPERTINO
AGENDA
Tuesday, September 1, 2015
10350 Torre Avenue, Council Chamber
CITY COUNCIL
6:45 PM
PLEDGE OF ALLEGIANCE
ROLL CALL
CEREMONIAL MATTERS AND PRESENTATIONS
POSTPONEMENTS
ORAL COMMUNICATIONS
This portion of the meeting is reserved for persons wishing to address the council on
any matter not on the agenda. Speakers are limited to three (3) minutes. In most cases,
State law will prohibit the council from making any decisions with respect to a matter
not listed on the agenda.
CONSENT CALENDAR
Unless there are separate discussions and/or actions requested by council, staff or a
member of the public, it is requested that items under the Consent Calendar be acted on
simultaneously.
1.Subject: Approve the August 18 City Council minutes
Recommended Action: Approve the minutes
A - Draft Minutes
2.Subject: Antibiotic use in Livestock Production
Recommended Action: Adopt Resolution No. 15-079 calling for a ban on the
nontherapeutic use of antibiotics in Livestock Agriculture
Staff Report
A - Policy Brief
B - Draft Resolution
3.Subject: Application for Alcoholic Beverage License for Rootstock Wine Bar,
19389 Stevens Creek Boulevard
Page 1 CITY OF CUPERTINO
1
September 1, 2015City Council AGENDA
Recommended Action: Recommend approval of the Alcoholic Beverage License to
the California Department of Alcoholic Beverage Control for Rootstock Wine Bar,
19389 Stevens Creek Boulevard
Staff Report
A - Application
SECOND READING OF ORDINANCES
PUBLIC HEARINGS
ORDINANCES AND ACTION ITEMS
4.Subject: Policy establishing procedures for authorizing the processing of GPA
applications
Recommended Action: Adopt Resolution No. 15-078 adopting procedures for
authorizing the processing of General Plan amendment applications
Description: Application No(s): CP-2015-02, Applicant(s): City of Cupertino,
Location: citywide; City Project for City Council to consider adopting a policy and
resolution establishing procedures for authorizing the processing of General Plan
Amendment applications
Staff Report
A - Draft Resolution 15-078
B - White Paper on Development Allocations 5/8/15.pdf
C - June 2015 CC SS Staff Report
D - Development Management Overview 6 24 15.pdf
E - Procedures for Processing GPA applications June 30, 2015
F - Flowchart comparing current vs. originally proposed procedures
G - Flowchart for Revised Procedures for GPA Applications
H - Comparison Table of originally proposed procedures and revised procedures
5.Subject: Ordinance amending Cupertino Municipal Code Title 16 to add Chapter
28 to provide an expedited streamlined permitting process for small residential
rooftop systems as mandated by the State of California, and City Manager
authorization to adopt an electronic signature policy
Recommended Action: 1. Conduct the first reading of Ordinance No. 15-2133: "An
Ordinance of the City Council of the City of Cupertino amending Cupertino
Municipal Code Title 16 to add Chapter 28 to provide an expedited streamlined
permitting process for small residential rooftop systems"; and 2. Authorize the City
Manager to adopt a policy to accept e-signatures in compliance with State Law
Staff Report
A - Draft Ordinance
Page 2 CITY OF CUPERTINO
2
September 1, 2015City Council AGENDA
REPORTS BY COUNCIL AND STAFF
6.Subject: Report on Committee assignments and general comments
Recommended Action: Report on Committee assignments and general comments
ADJOURNMENT
Page 3 CITY OF CUPERTINO
3
September 1, 2015City Council AGENDA
The City of Cupertino has adopted the provisions of Code of Civil Procedure §1094.6;
litigation challenging a final decision of the City Council must be brought within 90
days after a decision is announced unless a shorter time is required by State or Federal
law.
Prior to seeking judicial review of any adjudicatory (quasi-judicial) decision, interested
persons must file a petition for reconsideration within ten calendar days of the date the
City Clerk mails notice of the City’s decision. Reconsideration petitions must comply
with the requirements of Cupertino Municipal Code §2.08.096. Contact the City Clerk’s
office for more information or go to http://www.cupertino.org/index.aspx?page=125 for
a reconsideration petition form.
In compliance with the Americans with Disabilities Act (ADA), anyone who is planning
to attend the next City Council meeting who is visually or hearing impaired or has any
disability that needs special assistance should call the City Clerk's Office at
408-777-3223, 48 hours in advance of the Council meeting to arrange for assistance.
Upon request, in advance, by a person with a disability, City Council meeting agendas
and writings distributed for the meeting that are public records will be made available
in the appropriate alternative format. Also upon request, in advance, an assistive
listening device can be made available for use during the meeting.
Any writings or documents provided to a majority of the Cupertino City Council after
publication of the packet will be made available for public inspection in the City
Clerk’s Office located at City Hall, 10300 Torre Avenue, during normal business hours
and in Council packet archives linked from the agenda/minutes page on the Cupertino
web site.
Members of the public are entitled to address the City Council concerning any item that
is described in the notice or agenda for this meeting, before or during consideration of
that item. If you wish to address the Council on any issue that is on this agenda, please
complete a speaker request card located in front of the Council, and deliver it to the
Clerk prior to discussion of the item. When you are called, proceed to the podium and
the Mayor will recognize you. If you wish to address the City Council on any other item
not on the agenda, you may do so by during the public comment portion of the meeting
following the same procedure described above. Please limit your comments to three (3)
minutes or less.
Page 4 CITY OF CUPERTINO
4
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-0694 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:2/18/2015 City Council
On agenda:Final action:9/1/2015
Title:Subject: Approve the August 18 City Council minutes
Sponsors:
Indexes:
Code sections:
Attachments:A - Draft Minutes
Action ByDate Action ResultVer.
City Council9/1/20151
Subject: Approve the August 18 City Council minutes
Approve the minutes
CITY OF CUPERTINO Printed on 8/26/2015Page 1 of 1
powered by Legistar™5
DRAFT MINUTES
CUPERTINO CITY COUNCIL
Tuesday, August 18, 2015
CITY COUNCIL MEETING
ROLL CALL
At 6:00 p.m. Mayor Rod Sinks called the City Council meeting to order in Cupertino City Hall
Conference Room A, 10300 Torre Avenue.
Present: Mayor Rod Sinks, Vice Mayor Barry Chang, and Council members Darcy Paul Savita
Vaidhyanathan, and Gilbert Wong. Absent: None.
At 6:00 p.m. Council went into closed session and reconvened in open session at 6:45 p.m. in
the Cupertino Community Hall Council Chamber, 10350 Torre Avenue.
CLOSED SESSION
Mayor Sinks announced that Council held a closed session on August 7 regarding Public
Employment (Gov't Code Section 54957) - Title: City Attorney and that Council obtained a
briefing regarding the City Attorney recruitment.
1. Subject: Workers' Compensation Claim (Gov't Code Section 54956.95). Claimant:
Russell Polito. Agency Claimed Against: City of Cupertino
Mayor Sinks announced that Council obtained a briefing and gave direction.
2. Subject: Workers' Compensation Claim (Gov't Code Section 54956.95). Claimant:
Marcos Kubow. Agency Claimed Against: City of Cupertino
Mayor Sinks announced that Council obtained a briefing and gave direction.
PLEDGE OF ALLEGIANCE
At 6:45 p.m. Mayor Rod Sinks reconvened the City Council meeting to order in Cupertino
Community Hall Council Chambers, 10350 Torre Avenue and led the Pledge of Allegiance.
6
City Council Minutes August 18, 2015
2
ROLL CALL
Present: Mayor Rod Sinks, Vice Mayor Barry Chang, and Council members Darcy Paul,
Savita Vaidhyanathan, and Gilbert Wong. Absent: None.
CEREMONIAL MATTERS AND PRESENTATION
3. Subject: Present proclamation to the Recreation and Community Services staff thanking
them for their service at the 4th of July activities
Recommended Action: Present proclamation
Mayor Sinks presented the proclamation to Director of Recreation and Community
Services Carol Atwood.
4. Subject: Presentation from the Parks and Recreation Commission regarding the Work
Plan for Fiscal Year 2015-2016
Recommended Action: Receive the presentation
Written communications for this item included a PowerPoint presentation.
Chair of the Parks and Recreation Commission David Fung made a presentation
regarding the Commission Work Plan for Fiscal Year 2015-2016 via a PowerPoint
presentation.
Council received the presentation.
POSTPONEMENTS - None
ORAL COMMUNICATIONS
Arpitha Rao talked about water conservation.
Cathy Helgersen noted an upcoming Drought Forum with Senator Jim Beall on September 26
from 10-12 at Quinlan Community Center. She also talked about the City finding ways to
clean the air due to pollution from Lehigh.
Rhoda Fry talked about the proposed new development for City buildings and shared
concerns of cost, ADA issues, and urged smart, simple design.
7
City Council Minutes August 18, 2015
3
CONSENT CALENDAR
Wong moved and Vaidhyanathan seconded to approve the items on the Consent Calendar as
presented with the exception of item numbers 12-15 which were pulled for discussion. Ayes:
Sinks, Chang, Paul, Vaidhyanathan, and Wong. Noes: None. Abstain: None. Absent: None.
5. Subject: Approve the August 4 City Council minutes
Recommended Action: Approve the minutes
6. Subject: Accept Accounts Payable for the period ending July 10, 2015
Recommended Action: Adopt Resolution No. 15-068 accepting Accounts Payable for
the period ending July 10, 2015
7. Subject: Accept Accounts Payable for the period ending July 17, 2015
Recommended Action: Adopt Resolution No. 15-069 accepting Accounts Payable for
the period ending July 17, 2015
8. Subject: Accept Accounts Payable for the period ending July 24, 2015
Recommended Action: Adopt Resolution No. 15-070 accepting Accounts Payable for
the period ending July 24, 2015
9. Subject: Accept Accounts Payable for the period ending July 31, 2015
Recommended Action: Adopt Resolution No. 15-071 accepting Accounts Payable for
the period ending July 31, 2015
10. Subject: Accept Accounts Payable for the period ending August 7, 2015
Recommended Action: Adopt Resolution No. 15-072 accepting Accounts Payable for
the period ending August 7, 2015
11. Subject: League of California Cities Resolution for Sustainable Funding for State and
Local Infrastructure
Recommended Action: Adopt Resolution No. 15-073 urging the state to provide new
sustainable funding for state and local transportation infrastructure
12. Subject: Agreement for Consultant Services for the Citywide Parks, Open Space and
Recreation Master Plan
Recommended Action: Authorize the City Manager to negotiate and execute a
consultant services agreement for preparation of a Citywide Parks, Open Space and
8
City Council Minutes August 18, 2015
4
Recreation Master Plan for a fee not to exceed $375,000 and authorize a contingency
allowance subject to approval of the City Manager
Written communications for this item included an email to Council.
Cathy Helgersen talked about the County Park at the Stevens Creek Reservoir and how
dirty it is because of pollution from Lehigh.
Rhoda Fry talked about concern over making sure the consultant selected in the RFP
has all the pertinent information and that population density isn’t shown in the park
map documents.
Staff answered questions from Council.
Wong moved and Chang seconded to authorize the City Manager to negotiate and
execute a consultant services agreement for preparation of a Citywide Parks, Open
Space and Recreation Master Plan for a fee not to exceed $375,000 and authorize a
contingency allowance subject to approval of the City Manager. And include the final
agreement in Items of Interest. The motion carried unanimously.
13. Subject: Civic Center Master Plan Implementation - Master Agreement for Design
Consultant Services and Official Intent Resolution
Recommended Action: 1) Adopt Resolution No. 15-074 to: a. Authorize the City
Manager to negotiate and execute the Master Agreement for design consultant services
with the firm of Perkins+Will for implementation of the Civic Center Master Plan in
substantially similar form as presented to Council; and b. Authorize the City Manager
to negotiate and execute service orders under the terms of the master agreement for
phases of work for which funds have been appropriated, but in no event, in an amount
to exceed Five Million Five Hundred Thousand Dollars ($5,500,000); and c. Authorize
the City Manager to negotiate and execute other agreements for professional services to
implement the approved Civic Center Master Plan, to the extent that the funds are
appropriated for such purposes, with the following terms and conditions: i. For
professional services for: building systems engineering, site investigation and
engineering, building project/construction management; interim move planning and
facilitation, and financial advisory; ii. With a contract term not to exceed two years; and
iii. With cumulative compensation not to exceed Two Million Dollars ($2,000,000); and
2) Adopt Resolution No. 15-075 declaring its official intent to reimburse itself from the
9
City Council Minutes August 18, 2015
5
proceeds of debt financing for certain expenditures related to the Civic Center Master
Plan Implementation.
Written communications for this item included emails to Council.
The following individuals spoke on this item:
Peggy Griffin – speaking on behalf of Better Cupertino
Cathy Helgersen
Eric Schaefer – distributed written information
Liang-Fang Chao
Frank Geefay
Xiaowen Wang
Virginia Tambyn
Their comments included: renovate City Hall instead of building a new one; the City
doesn’t have the budget; online petition against spending the money signed by a few
hundred people; allow the citizens to vote on the expenditure; conflict of interest with
Perkins+Will; cost and population comparison with San Jose City Hall.
Staff answered questions from Council.
1) Wong moved and Sinks seconded to adopt resolution no. 15-074 to:
a. Authorize the City Manager to negotiate and execute the Master Agreement for
design consultant services with the firm of Perkins+Will for implementation of the
Civic Center Master Plan in substantially similar form as presented to Council; and
b. Authorize the City Manager to negotiate and execute service orders under the terms
of the Master Agreement for phases of work for which funds have been appropriated,
but in no event, in an amount to exceed five million five hundred thousand dollars
($5,500,000); and
c. Authorize the City Manager to negotiate and execute other agreements for
professional services to implement the approved Civic Center Master Plan, to the
extent that the funds are appropriated for such purposes, with the following terms and
conditions:
i. For professional services for: building systems engineering, site investigation and
engineering, building project/construction management; interim move planning and
facilitation, and financial advisory;
ii. With a contract term not to exceed two years; and
10
City Council Minutes August 18, 2015
6
iii. With cumulative compensation not to exceed two million dollars ($2,000,000). The
motion failed with Chang, Paul, and Vaidhyanathan voting no and Sinks and Wong
voting yes.
Chang said he voted no because the project was too expensive, there were more urgent
issues needed in Cupertino, and the voters should be asked their opinion. Paul said he
voted no because of concerns over financing. Vaidhyanathan asked for additional
information on conceptual financing for the project.
Wong moved and Sinks seconded to continue the item to gather additional information
regarding conceptual financing spending up to $15,000. After further discussion, Wong
rescinded his motion.
Three Council members added a future agenda item seeking additional information on
conceptual financing. The City Manager will contract under his authority to develop
this financial information and spend up to $15,000.
2) There was no motion to adopt Resolution No. 15-075 declaring its official intent to
reimburse itself from the proceeds of debt financing for certain expenditures related to
the Civic Center Master Plan implementation. The resolution was not pertinent since
the previous motion was denied.
14. Subject: Consider approval of the Library Commission’s recommendation of Amanda
Williamsen for the appointment of the new Cupertino Poet Laureate
Recommended Action: Adopt Resolution No. 15-076 approving the Library
Commission recommendation and appointing the new Cupertino Poet Laureate
Library Commission Chair Ann Stevenson made a short presentation and introduced
Amanda Williamsen as the new Cupertino Poet Laureate.
Amanda Williamsen talked about her background and read one of her poems.
Jennifer Brown speaking on behalf of the Poet Laureate Selection Committee
appreciated the new Poet Laureate and also noted she would be giving a class in the
near future at the Library regarding how to write poetry.
Paul moved and Wong seconded to adopt Resolution No. 15-076 approving the Library
Commission recommendation and appointing the new Cupertino Poet Laureate. The
motion carried unanimously.
11
City Council Minutes August 18, 2015
7
15. Subject: Application for Alcoholic Beverage License for Starbucks #631, 20676
Homestead Road
Recommended Action: Recommend approval of the Alcoholic Beverage License to the
California Department of Alcoholic Beverage Control for Starbucks #631, 20676
Homestead Road
Jennifer Griffin talked about concerns over how alcohol would be served at a coffee
venue.
Staff answered questions from Council.
Wong moved and Sinks seconded to recommend approval of the Alcoholic Beverage
License to the California Department of Alcoholic Beverage Control for Starbucks #631,
20676 Homestead Road. The motion carried unanimously.
16. Subject: Application for Alcoholic Beverage License for Blast 825 Pizza, 10033 Saich
Way
Recommended Action: Recommend approval of the Alcoholic Beverage License to the
California Department of Alcoholic Beverage Control for Blast 825 Pizza, 10033 Saich
Way
17. Subject: Application for Alcoholic Beverage License for Legends Pizza Company, 19732
Stevens Creek Boulevard
Recommended Action: Recommend approval of the Alcoholic Beverage License to the
California Department of Alcoholic Beverage Control for Legends Pizza Company,
19732 Stevens Creek Boulevard
SECOND READING OF ORDINANCES - None
PUBLIC HEARINGS- None
ORDINANCES AND ACTION ITEMS
18. Subject: Contract with Perfect Mind Technology, Inc. for the replacement of the current
Recreation and Community Services Enterprise Management System
Recommended Action: a. Authorize the City Manager or his designee to negotiate and
execute a ten year agreement with PerfectMind Technology, Inc. for Recreation and
12
City Council Minutes August 18, 2015
8
Community Services Enterprise Management System; and b. Authorize the
appropriation of $360,233 in FY 15-16
Director of Recreation and Community Services Carol Atwood reviewed the staff
report.
Staff answered questions from Council.
Wong moved and Chang seconded to a. Authorize the City Manager or his designee to
negotiate and execute a ten year agreement with PerfectMind Technology, Inc. for
Recreation and Community Services Enterprise Management System; and b. Authorize
the appropriation of $360,233 in FY 15-16. And include the final agreement in Items of
Interest. The motion carried unanimously.
Council recessed from 9:35 p.m. to 9:45 p.m.
19. Subject: Response to Call for Projects for Valley Transportation Plan 2040 (VTP 2040) -
Originally heard on July 7 brought back for final approval.
Recommended Action: Staff recommends that Council take the following actions: 1)
Rescind Resolution No. 15-061 adopted on July 7 and adopt Resolution No. 15-077
supporting the inclusion of a mass transit study, including a prioritization for initial
implementation along the Highway 85 Corridor supporting the inclusion of a study of
long-term mass transit solutions along the Highway 85 Corridor and the design and
construction of near-term solutions; and 2) Provide direction on any additional
transportation projects to submit for inclusion in the Santa Clara Valley Transportation
Authority’s (VTA) Valley Transportation Plan 2040
Director of Public Works Timm Borden reviewed the staff report.
Written communications for this item included written information from the Mountain
View City Manager Dan Rich.
The following individuals spoke on this issue:
Jennifer Griffin
Frank Geefy
Omar Chatty – distributed written information
Rhoda Fry
13
City Council Minutes August 18, 2015
9
Their comments included issues with Highways 17, 280, 85, 280/Foothill Expressway
off-ramp; change “mass transit” to “mobility,” develop Stevens Creek Trail further; free
mass transit in Cupertino; ask for free bicycles from companies as community benefit;
misinformation regarding light rail; fourth lane on 85 Corridor needed ASAP solely for
highway purposes; BART right answer down the road; expand vehicular bridge at
Snyder Hammond House with parking for better access to Rancho San Antonio.
1) Wong moved and Vaidhyanathan seconded, and the motion carried unanimously to
Rescinded Resolution No. 15-061 adopted on July 7 and adopt Resolution No. 15-077
supporting the inclusion of a mass transit study, including a prioritization for initia l
implementation along the Highway 85 corridor supporting the inclusion of a study of
long-term mass transit solutions along the Highway 85 corridor.
2) Council provided the following direction on additional transportation projects to
submit for inclusion in the Santa Clara Valley Transportation Authority’s (VTA) Valley
Transportation Plan 2040:
Include in Resolution No. 15-077: Foothill Expressway interchange Northbound 85 to
Northbound 280 and the Caltrain Capacity Expansion; and add the following bullets to
Attachment C Draft VTP 2040 project list:
First, Future Mass Transit Corridor implementation for West Valley cities and
North County cities
Stevens Creek Blvd./Foothill Blvd./Homestead Rd./Wolfe Rd. bus shuttle service
(after Bubb Rd./Mcclellan Rd./Rainbow Dr. bus shuttle service)
Foothill Expressway/Lawrence Expressway improvements per the County
Expressway Policy Advisory Committee (PAC) recommendations
Reiterate support for the Caltrain Capacity Expansion in the Highway
85/Highway 280/Foothill Expressway interchange
Add the Mass Transit Study, as proposed in the letter from mayors of West
Valley and North County cities
19a. Subject: Appointment to State Route (SR) 85 Corridor Policy Advisory Board (PAB)
Recommended Action: Appoint one member and one alternate to the SR 85 Corridor
PAB
Wong moved and Paul seconded to appoint Sinks as member and Chang as alternate to
the State Route 85 Corridor Policy Advisory Board. The motion carried unanimously.
14
City Council Minutes August 18, 2015
10
REPORTS BY COUNCIL AND STAFF
20. Subject: Report on Committee assignments and general comments
Recommended Action: Report on Committee assignments and general comments
City Manager David Brandt talked about the Kids and Fun event that he attended. He
also mentioned that Gary Chao in Planning and Andrea Sanders in the City Clerk’s
office were leaving Cupertino for jobs elsewhere.
Council members highlighted the activities of their committees and various
community events.
ADJOURNMENT
At 10:45 p.m., Mayor Sinks adjourned the meeting to a Special Meeting Closed Session on
Friday, August 28 at 8:30 a.m. Note: The next regular Council meeting is September 1.
_______________________________
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,
and then click Archived Webcast. Videotapes are available at the Cupertino Library, or may
be purchased from the Cupertino City Channel, 777-2364.
15
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1051 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:8/20/2015 City Council
On agenda:Final action:9/1/2015
Title:Subject: Antibiotic use in Livestock Production
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A - Policy Brief
B - Draft Resolution
Action ByDate Action ResultVer.
City Council9/1/20151
Subject: Antibiotic use in Livestock Production
AdoptResolutionNo.15-079callingforabanonthenontherapeuticuseofantibioticsin
Livestock Agriculture
CITY OF CUPERTINO Printed on 8/26/2015Page 1 of 1
powered by Legistar™16
PUBLIC AFFAIRS
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3262 • FAX: (408) 777-3366
CITY COUNCIL STAFF REPORT
Meeting: September 1, 2015
Subject
Antibiotic use in Livestock Production
Recommended Action
Adopt the Draft Resolution calling for a ban on the nontherapeutic use of antibiotics in
Livestock Agriculture.
Discussion
The City of Cupertino recognizes that eighty percent of the antibiotics sold in the United
States are used in livestock production. The Centers for Disease Control and Prevention has
reported that most of those antibiotics are used irresponsibly. Low doses of antibiotics are
routinely fed to livestock for growth promotion and disease prevention to compensate for
crowded, unsanitary conditions, in a practice known as “nontherapeutic use”.
Local municipalities are becoming aware of the “nontherapeutic use” of antibiotics and the
potential for the development of antibiotic resistant bacteria it creates. Antibiotic resistant
bacteria on livestock operations are known to spread to retail meat, farmers and
farmworkers, and rural environments; all of which affects the lives of local consumers.
Currently, the federal government has limited nontherapeutic uses of two classes of
antibiotics, but otherwise largely relied on voluntary guidance to attempt to reduce the
overuse of antibiotics in livestock production, despite regular acknowledgements that
nontherapeutic use and the development of antibiotic resistant bacteria poses a significant
public health threat.
On August 20, 2014, the City Commission directed staff to draft a Resolution in support of
a statewide and national ban on nontherapeutic uses of antibiotics in livestock production.
Why Action is Necessary According to the Center for Disease Control and Prevention,
antibiotic resistant bacteria have been the cause of several foodborne illness outbreaks,
including a 2011 outbreak of antibiotic resistant Salmonella in ground turkey that sickened
136 people, hospitalized 37, and killed one and led to the third largest meat recall in the
United State Department of Agriculture’s records and a 2013 outbreak of antibiotic
17
2
resistant Salmonella in chicken that sickened 416 people and hospitalized 162. The Center
for Disease Control and Prevention reported that at least two million Americans suffer
from antibiotic resistant bacterial infections each year and twenty-three thousand
Americans die from those infections.
The City of Cupertino supports a statewide and national ban on nontherapeutic uses of
antibiotics in livestock production as well as the Protection of Antibiotics for Medical
Treatment Act (PAMTA)/Prevention of Antibiotic Resistance Act (PARA). Adoption of the
attached Resolution advances the City’s Strategic Priority by improving the Quality of Life
and the safety, Security and Comfort of its residents.
Sustainability Impact
N/A (if no impact)
Fiscal Impact:
There is no Fiscal Impact associated with approval of this Resolution
____________________________________
Prepared by: Colleen Lettire, Office Assistant
Reviewed by: Rick Kitson, Public Affairs Director
Approved for Submission by: David Brandt, City Manager
Attachments:
A – Policy Brief
B - Draft Resolution
18
1
Policy Brief
Issue: Antibiotic Resistance and Drug Use in Animal Agriculture
Background
Drug-resistant infections sicken two million Americans a year, killing at least 23,000 people, according to a new report
from the Centers for Disease Control and Prevention (CDC). Fighting these infections adds up to $26 billion to our
nation’s healthcare bill annually. Doctors routinely warn patients that antibiotics should be used only to treat bacterial
infections, at the proper dosage, and for the full course of treatment, because failure to follow these rules increases the
likelihood that some of the bacteria will survive and mutate to become drug resistant. Yet many producers of meat (beef
and pork) and poultry feed antibiotics to their food animals simply for growth promotion, and to offset the effects of
overcrowding and poor sanitation.
In 2011, 29.9 million pounds of antibiotics
were sold in the U.S. for meat production.
Yet, in the same year, only 7.7 million
pounds of antibiotics were sold to sick
treat people.1 This means that 80% of the
antibiotics sold in the U.S. are now being
used in animal agriculture, many of which
are used for growth promotion and
disease prevention. Many of these
antibiotics are medically-important, and
used to treat infections in sick people,
including penicillins, tetracyclines,
aminoglycosides, streptogramins,
macrolides and sulfas.
The U.S. Food and Drug Administration
(FDA), the U.S. Department of Agriculture
(USDA), and the CDC have all testified before Congress that there was a definitive link between the routine, non-
therapeutic uses of antibiotics in food animal production and the crisis of antibiotic resistance. This position is supported
by the American Medical Association, the American Academy of Pediatrics, and other leading medical groups who all
warn that the injudicious use of antibiotics in food animals presents a serious and growing threat to human health
because the practice creates new strains of dangerous antibiotic-resistant bacteria.
Antibiotic resistance occurs when bacteria change in some way that reduces or eliminates the effectiveness of drugs
designed to cure or prevent infections. Widespread use of antibiotics promotes the spread of antibiotic resistance, as
bacteria quickly reproduce and evolve to become resistant to antibiotics. Unlike higher organisms, bacteria can also
readily transfer genetic material not only to their own offspring, but to completely unrelated types of bacteria. Along
1 Sources: IMS Health Inc. (human sales data); Animal Health Institute survey of its members, 2001-07; U.S. Food and Drug Administration, 2009-11
(animal sales data).
19
2
with the rapid reproduction of bacteria, this means resistance genes can be widely distributed in short order. Some
bacteria, which the media have termed “superbugs,” end up resistant to multiple antibiotics – even the most powerful
ones.
To address this mounting crisis advocates are pursuing a range of strategies to change animal food production practices
and protect the efficacy of antibiotics. These strategies include public policy and regulation, litigation, and consumer
campaigns.
Policy Timeline
Legislation which would restrict the use of some (medically important in human health care) antibiotics has been
introduced into both the House and Senate over the past several years but none has moved out of committee to a vote
on the floor of either chamber.
Legislation currently before Congress would phase out the use of medically important drugs in healthy livestock, while
allowing their use to treat sick animals.
House Bill: Preservation of Antibiotics for Medical Treatment Act (PAMTA) (H.R. 1150)
Senate Bill: Preventing Antibiotic Resistance Act (PARA) (S. 1256)
GOAL FOR 2014 FEDERAL LEGISLATIVE SESSION:
Pressure lawmakers to act to support passage of these bills into law.
Key Messages
1. EIGHTY-PERCENT OF THE ANTIBIOTICS SOLD IN THIS COUNTRY ARE USED IN ANIMAL AGRICULTURE. MOST
OF THESE ARE USED TO PROMOTE GROWTH, AND TO PREVENT THE SPREAD OF INFECTIONS CAUSED BY
OVERCROWDED AND UNSANITARY CONDITIONS.
a. 7.7 billion pounds of antibiotics were sold in 2011 to treat sick people. 29.9 billion pounds of
antibiotics were sold in 2011 for meat and poultry production, representing 80% of all antibiotics
sold in U.S.
(Sources: IMS Health Inc. (human sales data); Animal Health Institute survey of its members, 2001-07; U.S. Food and Drug
Administration, 2009-11 (animal sales data).
b. 90% percent of these antibiotics used in food animal production were sold for use in food and
water, indicating preventative and growth promoting use.
(Sources: U.S. Food and Drug Administration, FDA Annual Report on Antimicrobials Sold and Distributed for Food-
Producing Animals in 2009.)
2. OUR OVERUSE AND MISUSE OF ANTIBIOTICS IN ANIMALS GROWN FOR FOOD IS LINKED BY SCIENCE TO
ANTIBIOTIC RESISTANCE IN HUMANS.
a. The FDA, CDC and USDA have testified that antibiotic use in food animals contributes to antibiotic-
resistant infections in people. The American Medical Association, American Academy of Pediatrics,
and World Health Organization recognize that current conventional farming practices pose a threat
to our health.
b. Hundreds of studies conducted over four decades demonstrate that giving antibiotics to food
animals breeds drug-resistant bacteria that can infect us. (See extensive Bibliography)
20
3
A 2013 study by the National Antimicrobial Resistance Monitoring System (NARMS) found
salmonella, Campylobacter, and E. coli in supermarket meats. NARMS is a federal coalition
of the FDA, CDC, and USDA that monitors public health. Findings:
81% of the study’s turkey samples, 69% of pork samples, 55% of beef samples, and 39%
of chicken samples were contaminated with antibiotic-resistant Enterococcus faecalis.
This bacteria can cause life-threatening infections in humans, including urinary tract
infections and meningitis. The presence of Enterococcus means that: 1) the meat likely
came into contact with fecal matter, and 2) that there’s a high likelihood that other
antibiotic-resistant bacteria are on the meat. Furthermore, such commensal bacteria
can transfer their genetic material to other, more pathogenic bacteria colonized in the
human gut.
Additionally, this study showed that 53% of the raw chicken samples were tainted with
E. coli and 26% contained Campylobacter jejuni.
12% of the chicken sampled contained salmonella, and of those salmonella samples,
74.1% were resistant to one or more antibiotics.
(Source: National Antimicrobial Resistance Monitoring System. 2013. Retail Meat Report)
A 2013 study of community living near hog farms or near crop fields fertilized with animals’
manure in Pennsylvania. Health records of 446,000 patients from 2005-2010 reviewed.
Identified 3000 patients with MRSA and 50,000 with skin and soft tissue infections. Found
11 percent of MRSA and soft-tissue infections could be attributed to living near farm fields
treated with pig manure.
(Source: High-Density Livestock Operations, Crop Field Application of Manure, and Risk of Community-
Associated Methicillin-Resistant Staphylococcus aureus Infection in Pennsylvania. Joan A. Casey, MA; Frank
C. Curriero, PhD, MA; Sara E. Cosgrove, MD, MS; Keeve E. Nachman, PhD, MHS; Brian S. Schwartz, MD, MS .
JAMA Intern Med. 2013; 173(21):1980-1990. doi:10.1001/jamainternmed.2013.10408.)
3. WE ARE CALLING ON CONGRESS TO PASS LEGISLATION TO LIMIT THE USE OF ANTIBIOTICS IN ANIMALS
GROWN FOR FOOD.
a. Companion Legislation:
House Bill: Preservation of Antibiotics for Medical Treatment Act (PAMTA) (H.R. 1150)
Senate Bill: Preventing Antibiotic Resistance Act (PARA) (S. 1256)
b. This legislation would eliminate the practice of giving antibiotics important in human medicine to
animals to make them grow faster or to compensate for overcrowded and unsanitary conditions.
These drugs would be available only to treat animas, flocks or herds for actual diseases. The eight
effected classes are aminoglycosides, cephalosporins, lincosamides, macrolides, penicillins,
streptogramins, sulfonamides, and tetracyclines.
Q & A: Anticipated Rebuttal and Useful Responses
Where’s the proof?
Hundreds of studies conducted over four decades demonstrate that giving antibiotics to food animals breeds
drug-resistant bacteria that can infect us. (See extensive Bibliography)
The FDA, CDC, and USDA have testified to this. The American Medical Association, American Academy of
Pediatrics, and World Health Organization recognize that these practices are a threat to our health.
Isn’t the real threat antibiotic overuse in hospitals and in human medicine generally?
Antibiotic overuse everywhere is a problem, including in human and animal medicine. But most antibiotics are
used on industrial farms. And while efforts are being made in hospitals to reduce antibiotic use, industrial farms
appear to be increasing their use of these drugs.
21
4
Won’t animals get sick if we take away antibiotics? Don’t we need antibiotics to keep animals healthy and our food
safe?
Any system that relies on antibiotics to keep animals healthy is a broken system.
We cannot rely on antibiotics to prevent diseases that arise simply because the conditions on industrial farms
are so poor. The solution to those problems is better conditions, not antibiotics.
We support the use of antibiotics for treating illness and for preventing disease in animals when disease is
spreading through a flock or herd, but not to compensate for poor animal husbandry.
Aren’t many antibiotics used only in animal medicine, which means their use isn’t a problem?
Most antibiotics used on industrial farms are also used to treat sick people. We need to eliminate the use of
those drugs for making animals grow faster and to compensate for overcrowded and unsanitary conditions.
FDA policies and the Preservation of Antibiotics for Medical Treatment Act would not change the way industrial
farms use animal-only antibiotics. They only address the use of antibiotics that are important in human
medicine, and then they still allow for those drugs to be used to treat sick animals. All we’re talking about is
eliminating the non-therapeutic use of antibiotics that are important to people.
The likelihood of this legislation passing is very slim. The opposition which includes many high profile farming and
veterinarian groups claims there is no direct evidence that their farming practices are causing human resistance. Is
there any direct proof?
We are seeing the tide shifting on this issue as evidenced by recent statements and testimony by the FDA, CDC,
and USDA. These agencies, as well as respected medical authorities, agree that there is substantial evidence
proving the linkage between antibiotic use in animal agriculture and the rise in antibiotic resistant infections in
humans.
We also know that this is a long fight and that the passage of legislation to definitively change the rules
governing this practice may take more than one legislative session. In the near term, advocating for these
policies also helps to educate the public and our lawmakers, laying the groundwork for policy passage.
So why not approach the problem by rewarding farmers for changing the conditions under which they raise their
animals? Is there anything consumers can do, rather than relying on congress to pass this legislation?
As we work toward an ultimate policy solution, there are actions that we can all take to support farmers that are
using antibiotics responsibly or not at all on their farms.
Consumers can vote with their wallets and buy meat and poultry from farms that do not misuse antibiotics.
Look for meat and poultry that carry one or more of these labels or claims:
o USDA Organic
o American Grassfed
o Animal Welfare Approved
o Certified Humane Raised & Handled
o Food Alliance Certified
o “Raised Without Antibiotics”
o “No Antibiotics Added”
22
RESOLUTION NO. 15-
URGING THE STATE TO PROVIDE NEW SUSTAINABLE FUNDING FOR STATE
AND LOCAL TRANSPORTATION INFRASTRUCTURE
WHEREAS, the Centers for Disease Control and Prevention (CDC) states,
“Antibiotics are widely used in food-producing animals”; and
WHEREAS, the CDC refers to a link between antibiotic use in food-producing
animals and the occurrence of antibiotic-resistant infections in humans and to strong
scientific evidence that such use can harm public health; and
WHEREAS, the CDC has reported that “much antibiotic use in animals is
unnecessary and inappropriate and makes everyone less safe”; and
WHEREAS, the CDC also states, “The use of antibiotics for promoting growth
[of food-producing animals] is not necessary and should be phased out”; and
WHEREAS, the CDC estimates that at least two million illnesses and twenty-
three thousand deaths in the United States are caused by antibiotic resistance; and
WHEREAS, the CDC also states that the costs of antibiotic resistance are difficult
to calculate but estimates for the excess direct healthcare cost range as high as $20
billion per year and as high as an additional $35 billion per year in lost productivity;
NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE
CITY OF CUPERTINO that on the first day of September 2015, Cupertino, California
supports a statewide and national ban on nontherapeutic uses of antibiotics in livestock
production; and
BE IT FURTHER RESOLVED, that Cupertino, California supports the
Preservation of Antibiotics for Medical Treatment Act (PAMTA)/Prevention of
Antibiotic Resistance Act (PARA).
23
AND BE IT FURTHER RESOLVED that Cupertino, California will send a letter
to our State Representatives, Congressional Representative and U.S. Senators calling for
a ban on the nontherapeutic use of antibiotics in livestock agriculture and for them to
co-sponsor the PAMTA/PARA.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 1st day of September, 2015, by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
__________________________ ___________________________
Grace Schmidt, City Clerk Rod Sinks Mayor, City of Cupertino
24
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1013 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:8/6/2015 City Council
On agenda:Final action:9/1/2015
Title:Subject: Application for Alcoholic Beverage License for Rootstock Wine Bar, 19389 Stevens Creek
Boulevard
Sponsors:Julia Kinst
Indexes:
Code sections:
Attachments:Staff Report
A - Application
Action ByDate Action ResultVer.
City Council9/1/20151
Subject:ApplicationforAlcoholicBeverageLicenseforRootstockWineBar,19389Stevens
Creek Boulevard
RecommendapprovaloftheAlcoholicBeverageLicensetotheCaliforniaDepartmentof
Alcoholic Beverage Control for Rootstock Wine Bar, 19389 Stevens Creek Boulevard
CITY OF CUPERTINO Printed on 8/26/2015Page 1 of 1
powered by Legistar™25
CITY COUNCIL STAFF REPORT
Meeting: August 18, 2015
Subject
Alcoholic Beverage License, Rootstock Wine Bar, 19389 Stevens Creek Boulevard
Recommended Action
Recommend approval of the Alcoholic Beverage Control License to the California
Department of Alcoholic Beverage Control for Rootstock Wine Bar, 19389 Stevens Creek
Boulevard
Description
Name of Business: Rootstock Wine Bar
Location: 19389 Stevens Creek Boulevard
Type of Business: Restaurant
Type of License: 41 – On-Sale Beer and Wine – Eating Place (Restaurant)
Reason for Application: Annual Fee, Original Fees
Discussion
There are no zoning or use permit restrictions which would prohibit the sale of alcohol
as proposed and staff has no objection to the issuance of this license. License Type 41
authorizes the sale of beer and wine for consumption on or off the premises where sold.
This address is located at Main Street.
Sustainability Impact
None
Fiscal Impact
None
_____________________________________
Prepared by: Julia Kinst, Planning Department
Reviewed by: Gary Chao, Assistant Director of Community Development; Aarti
Shrivastava, Assistant City Manager - Community Development and Strategic Planning
Approved for Submission by: David Brandt, City Manager
Attachment: A - Application
COMMUNITY DEVELOPMENT DEPARTMENT
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3308 www.cupertino.org
26
27
28
29
30
31
32
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-0921 Name:
Status:Type:Ordinances and Action Items Agenda Ready
File created:In control:6/2/2015 City Council
On agenda:Final action:9/1/2015
Title:Subject: Policy establishing procedures for authorizing the processing of GPA applications
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A - Draft Resolution 15-078
B - White Paper on Development Allocations 5/8/15.pdf
C - June 2015 CC SS Staff Report
D - Development Management Overview 6 24 15.pdf
E - Procedures for Processing GPA applications June 30, 2015
F - Flowchart comparing current vs. originally proposed procedures
G - Flowchart for Revised Procedures for GPA Applications
H - Comparison Table of originally proposed procedures and revised procedures
Action ByDate Action ResultVer.
City Council9/1/20151
Subject: Policy establishing procedures for authorizing the processing of GPA applications
Adopt Resolution No. 15-078 adopting procedures for authorizing the processing of General
Plan amendment applications
Description:ApplicationNo(s):CP-2015-02,Applicant(s):CityofCupertino,Location:
citywide;CityProjectforCityCounciltoconsideradoptingapolicyandresolutionestablishing
procedures for authorizing the processing of General Plan Amendment applications
CITY OF CUPERTINO Printed on 8/26/2015Page 1 of 1
powered by Legistar™33
COMMUNITY DEVELOPMENT DEPARTMENT
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3308 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: September 1, 2015
SUBJECT
Policy establishing procedures for authorizing the processing of GPA applications
RECOMMENDED ACTION
Recommend that the City Council:
1. Adopt Resolution No. 15-078 adopting procedures for authorizing the processing of
General Plan amendment applications (Attachment A).
DESCRIPTION
Application No.: CP-2015-02
Applicant: City of Cupertino
Property Location: City-wide
Project Description: City Project for City Council to consider adopting a policy and
resolution establishing procedures for authorizing the processing of General Plan
Amendment applications
BACKGROUND
On May 19, 2015, the City Council adopted the 2014-2022 Housing Element, decided not to
make any additional changes to the development allocations, building heights and
building planes related to the 2040 General Plan, General Plan, and reviewed a potential
policy for authorizing General Plan Amendment (GPA) applications. Background
information on the policy for processing GPAs included a white paper on programs to
manage development in cities including Berkeley, Santa Monica, San Diego, Mountain
View and Morgan Hill (Attachment B).
At that meeting the Council provided the following direction on the proposed policy to
establish procedures for processing GPA applications:
Directed staff to present additional details on programs that require community
benefits such as the Cities of Mountain View and Morgan Hill;
Deferred the decision on the policy for approximately 90 days; and
Placed new GPA applications on hold until a decision is made on the policy.
34
CP-2015-02 September 1, 2015
On June 30, 2015, the City hosted an Open House on the proposed procedures for General
Plan amendment applications and a Study Session with the City Council (see Attachment C
for staff report). At the Study Session, a white paper (Attachment D) prepared for the
Council meeting, provided the pros and cons of various incentive zoning, growth
allocation and land use regulation models and provided general guidance on developing a
policy that addressed Cupertino’s concerns and particular needs for managing growth.
Based on the pros and cons for the different programs administered by the various cities,
staff presented a policy for processing applications for GPAs, which was also
recommended at the May 19 City Council meeting (Attachment E). This is discussed in
detail further in this staff report.
At the study session, the Council directed staff to consider the following changes to the
proposed policy:
Consider allowing General Plan amendment applications twice a year;
Consider allowing the Council to provide direction to applicants and a possibility of a
“second chance” for their proposed project before the next review cycle;
Move forward with a policy versus an ordinance at this time.
As noted in previous staff reports, in reviewing options to consider procedures for
authorizing processing of GPA applications, the following criteria should be considered:
Ability to achieve orderly development of the City through a managed process;
Ensure that additional development can achieve/improve facility/service and
quality of life standards for the community;
Provide opportunity for early community input;
Ease of implementation; and
Impact on staff and other resources.
DISCUSSION
This report focuses on the following:
A description of the current procedure for processing GPA applications;
A description of the procedures proposed in May and June 2015 and
A description of the revised recommended policy on processing GPAs.
Current Procedure for Processing General Plan Amendment Applications
Currently, GPA applications are processed as they are received. Project review is
completed concurrently to ensure that other aspects of the General Plan and zoning
regulations are met by the project. If a Development Agreement is sought by the applicant,
35
CP-2015-02 September 1, 2015
one is negotiated at this time, including any items that are offered by the applicant as
community benefits. Environmental review for the proposed project is processed
concurrent with project review. Upon completion of the environmental and project review,
public hearings are scheduled with the Planning Commission and City Council for a final
decision on the environmental review, project, proposed General Plan Amendments and
Development Agreement, if any.
Public input notification is provided through neighborhood noticing, legal notices for
meetings and site signage. Public input is sought through neighborhood meetings and at
hearings at the Planning Commission and City Council. However, since each application is
processed separately, neither the Council nor the public have a chance to get a preliminary
look at the applications before they are processed.
Therefore, the current process is not as transparent, does not allow comparison of
applications, received and being processed, in a given year, does not consider issues such
as early public input, achievement of key City goals, and time and resource requirements,
prior to processing these applications. Additionally, since each application is reviewed
separately applicants do not compete for authorization with other projects.
Original Recommendation for Processing General Plan Amendments Applications
Under the procedure proposed originally at the June 30, 2015 study session, GPA
applications would not be processed as follows:
1) All GPA applications would have to be submitted by a certain date every year in order
to be considered for processing that year.
2) The GPA applications would be scheduled for a Council meeting once a year, at which
the Council would authorize applications for processing.
3) Public input would be sought by sending a city-wide postcard and providing project
information on the City website.
4) Project information would include conceptual plans, community amenities, General
Plan amendments sought and other features proposed by applicants.
5) The Council would consider the following criteria when deciding whether or not to
authorize GPA applications:
a) General Plan goals achieved by the project;
b) Quality of architectural and site design;
c) Fiscal impacts of the project;
d) Affordable housing provided by the project;
e) General Plan amendments (and/or other variances) sought by the project; and
f) Voluntary community amenities provided by the project
36
CP-2015-02 September 1, 2015
6) The Council decision would authorize the applicant to submit an application for the
GPA. It would not guarantee approval of projects. Projects authorized to proceed,
would then be processed as they are currently. Council’s final decision on each project
would be made after reviewing all aspects of the proposal including site and
architectural design, environmental review, public input, etc.
7) If multiple GPA projects were authorized for processing, each project would be
reviewed and staff would ensure that they were brought for Council review in a
manner that would not exceed four GPAs per calendar year. Projects could also be
bundled together as needed so as not to exceed four per year.
8) Projects not authorized in the current annual period would have to re-apply,
potentially with changes, for consideration during a subsequent annual period.
Attachment F is a flowchart comparing the current process with the procedures proposed
in June 2015.
Revised Recommendation for Processing General Plan Amendments Applications
Based on Council input, the recommended process is largely the same as the original
recommendation above. However, some of the procedures would be amended as follows:
1) GPA applications would be considered by the Council twice every year;
2) Applications that are allowed to a “second chance” to be re-considered at a continued
hearing by the City Council to submit revisions/additional information within 30 days.
3) Applications that are rejected would wait for a year before re-applying (i.e. they would
not be allowed to re-apply in the 6 month subsequent cycle).
Both the original recommendation and the revised recommendation would provide
additional transparency and opportunity for early input in the processing of General Plan
Amendment applications and would require applicants to propose a competitive
application.
Attachment G provides a flowchart of the revised recommendation. Attachment H
provides a comparison table of the proposed procedures from June 2015 and the currently
proposed procedures.
Staff and Other Resources
The anticipated volume of General Plan Amendment applications will require additional
staff resources. The new procedure could require even more staffing depending on the
complexity of the process approved by the Council.
37
CP-2015-02 September 1, 2015
PUBLIC NOTICING, OUTREACH AND COMMENTS
City Council Study Session– June 30, 2015
The table on the following page summarizes the noticing for this meeting:
Notice Agenda
Courtesy email sent to all interested
parties signed up through the project
website
Newspaper Display Ad (at least 10 days
prior to hearing)
City's official notice bulletin board (6 days
prior to the hearing)
City of Cupertino’s website (6 days prior to
the hearing)
Project website (5 days prior to hearing)
ENVIRONMENTAL IMPACT
The recommendation is for the City Council to adopt procedures for authorization to
proceed with processing General Plan Amendment applications and the procedures
themselves do not result in a direct or reasonably foreseeable indirect physical change to
the environment and is, therefore, not a project under the California Environmental Quality
Act (CEQA) or is exempt under 14 Cal. Code Regs. §15061(b)(3).
FISCAL IMPACT
As noted earlier in the staff report, the recommended process would require additional
staffing. A portion of the cost is expected to be recovered by application and cost-recovery
fees.
NEXT STEPS
If the Council adopts the policy, a deadline for the first annual review of applications will
be established and the policy will be implemented for all applications received thereafter.
If the Council decides not to adopt the policy for authorization of General Plan amendment
applications, the City would continue with the current procedure of processing General
Plan amendment applications as they are submitted. In addition, a staffing plan will be
brought to the Council at a subsequent meeting based on the Council’s decision.
_____________________________________
Prepared by: Piu Ghosh, Senior Planner
Reviewed by: Aarti Shrivastava, Assistant City Manager
Approved for Submission by: David Brandt, City Manager
Attachments:
A – Draft Resolution 14-078 of the City Council of the City of Cupertino Adopting
Procedures for Authorizing General Plan Amendment Applications
38
CP-2015-02 September 1, 2015
B – White Paper on Development Management Programs dated 05/08/15
C - June 30, 2015 City Council Staff Report
D - Supplemental White Paper on Development Management programs dated 06/24/15
E – Proposed Policy for Procedures for Authorizing General Plan Amendment
Applications dated 06/30/2015
F - Flowchart comparing the current and originally proposed procedure for processing
General Plan amendment applications
G - Flowchart showing the revised recommendation for processing General Plan
amendment applications
H – Comparison table of proposed procedures from June 2015 and currently proposed
procedures
39
DRAFT RESOLUTION NO. 15-078
OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
ADOPTING FOR PROCEDURES PROCESSING OF
GENERAL PLAN AMENDMENT APPLICATIONS
WHEREAS, on December 4, 2014, the City Council adopted an amended General Plan titled
Community Vision 2040, which reflects community input, regulatory changes, best practices, and
the desire to achieve community‐building, sustainability, economic, and fiscal objectives; and
WHEREAS, the City has been evaluating various programs to manage development to
address development issues in light of concerns about rapid growth and the impacts of such
growth overwhelming the City’s ability to accommodate it, as well as the substantial impacts of
development on quality of life in the community; and
WHEREAS, as part of its evaluation process, the City has considered Community Business
Incentive Zoning (CBIZ) and Growth Management programs; and
WHEREAS, while CBIZ and Growth Management programs can be effective in metering
growth and providing for community benefits, they can be difficult to administer, are limited by
legal requirements and do not provide the flexibility for managing growth and its substantial
impacts on the community; and
WHEREAS, California Government Code Section 65358(a) provides that: “If it deems it to be
in the public interest, the legislative body may amend all or part of an adopted general plan. An
amendment to the general plan shall be initiated in the manner specified by the legislative body. . .
.”; and
WHEREAS, each mandatory element of the City’s General Plan may be amended no more
than four times during any calendar year and, subject to that limitation, “an amendment may be
made at any time, as determined by the legislative body “ (Cal. Gov. Code 65358(b)); and
WHEREAS, the City’s Municipal Code does not address the timing or initiation of general
plan amendments; and
WHEREAS, rather than pursue a CBIZ or Growth Management program, the City desires to
set forth an orderly process, in accordance with its legislative discretion, to consider General Plan
amendments and ensure that proposals are fairly considered in light of the City’s goals and
concerns about growth; and
WHEREAS, the City has prepared General Plan Amendment Procedures to provide a
process for preliminary review of proposed amendments; and
WHEREAS, the City Council conducted a public hearing on the proposed procedures on
May 19, 2015, and the Council directed staff to provide more information and options at a future
meeting; and
WHEREAS, the City held an Open House on the General Plan Amendment Process on June
30, 2015, and the City Council held a Study Session after the Open House; and
40
WHEREAS, at the Study Session, the Council directed staff to look at options that allowed
for applications twice a year and that provided a reevaluation process; and
WHEREAS, the procedures include, among other things: (1) notice provisions to ensure the
public has an opportunity to comment; (2) evaluation criteria to ensure general plan amendments
that move through the application process are in the public interest and meet the City’s goals for
development, including provision of community amenities; and (3) requirements for requesting
preliminary review of a proposed General Plan amendment; and
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino
hereby adopts the General Plan Amendment Procedures attached hereto, subject to minor revisions
as may be made by the City Manager in consultation with the City Attorney. The City Council
hereby authorizes City staff to process proposed General Plan amendments in accordance with the
General Plan Amendment Procedures and to take any and all other actions necessary to implement
the procedures.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino,
the 1st day of September, 2015, by the following vote:
Vote: Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
Grace Schmidt, City Clerk Rod Sinks, Mayor, City of Cupertino
41
PROCEDURES FOR PROCESSING
OF GENERAL PLAN AMENDMENT APPLICATIONS
1. Background/Goals
Like many communities throughout the State, Cupertino is concerned about balancing the
benefits of economic development with the effects of rapid growth. The impacts of such growth
can overwhelm the City’s ability to accommodate it and affect the quality of life in the
community.
The goal is to create a procedure for the consideration of future General Plan amendments that
will encourage orderly development of the City and ensure that facility/service and quality of
life standards can be met for the community. These procedures only address amendments
requested by private parties. The City may initiate General Plan amendments when it deems
necessary, such as, to conform to State law or to ensure consistency within the General Plan.
2. Procedure
a. The Council will consider the timing and processing of General Plan amendments twice a
year, approximately every six months.
b. In order to be considered for processing, applicants would be required to apply for
authorization to process a General Plan amendment by a designated date.
c. In the quarter following the due date (generally), the Council will hold a publicly noticed
meeting to preliminarily review the list of proposed General Plan amendments.
d. Noticing – City-wide postcard and public meeting requirements.
e. Each application will be preliminarily evaluated for the following:
(i) General Plan goals achieved by the project, including, but not limited to, the following:
(1) Site and Architectural design and neighborhood compatibility
(2) Brief description of net fiscal impacts (sales tax, transient occupancy tax or other
revenue provided by the project) including a diverse economic base
(3) The provision of affordable housing
(4) Sustainability
(ii) List of General Plan amendments (and any other zoning amendments or variances)
requested.
(iii) A list of voluntary community amenities, as defined in Section 3, if any.
(iv) Staff time and resources required to process the project.
f. Based on the above evaluation the Council will consider which projects, if any, will be
authorized to proceed with a General Plan amendment application. The decision does not
in any way presume approval of the amendment or project. It only authorizes staff to
process the application, but the City retains its discretion to consider the application in
42
accordance with all applicable laws, including the California Environmental Quality Act
(“CEQA”) and the City’s zoning laws and ordinances. Consideration of the application will
be in accordance with the City’s Municipal Code and regulations.
g. Staff will begin processing the General Plan amendment applications per Council direction.
A project that applies for processing should be in substantial compliance with the project
authorized by Council.
h. Upon Council direction, applicants may submit revised application/additional information
within 30 days. Such projects will be considered by the Council after staff review.
i. If a proposal is not authorized for processing after the initial review or the additional
submittal, the applicant or its successor-in-interest must wait one year to submit an
additional application for the same or similar project.
3. Voluntary Community Amenities
a. For purposes of this policy, voluntary community amenities are defined as facilities, land
and/or funding contributions to ensure that any development with a General Plan
amendment application enhances the quality of life in the City, including enhancements of
the following:
(i) School resources
(ii) Public open space, such as parks and trails
(iii) Public facilities and utilities, such as library, community center or utility systems
(iv) Transportation facilities with an emphasis on city-wide bicycle, pedestrian and transit
improvements, such as community shuttles, pedestrian and bicycle bridges, and transit
center/stations
4. Preliminary Review Requirements
a. Preliminary documents that would be typically required for the type of application that is
requested, such as site plans, preliminary landscape plans, elevations, cross sections,
preliminary grading plans and proposed materials.
b. A description, including graphics, of the General Plan amendment(s) and land use
approvals required, if any. The description should include diagrammatic information as
necessary to clearly explain the request.
c. An explanation of how the proposed project meets the overall goals of the General Plan and
the benefits/impacts of the project to the community and its quality of life.
d. A brief summary of net fiscal impacts.
e. To the extent the proposed project includes voluntary community amenities of a type
typically memorialized in a development agreement, the applicant should include a Term
Sheet explaining the proposed terms. The Term Sheet will be memorialized in a
Development Agreement as part of the project, if approved.
43
DEVELOPMENT MANAGEMENT
OVERVIEW
Prepared for the City of Cupertino
By:
Economic & Planning Systems
and
Burke, Williams & Sorensen, LLP
May 8, 2015
44
1
OAK #4824-1644-4195 v4
DEVELOPMENT MANAGEMENT OVERVIEW
Like many communities throughout the State, Cupertino is concerned about balancing the
benefits of economic development with the effects of rapid growth. The impacts of such growth
can overwhelm the City’s ability to accommodate it and affect the quality of life in the
community. The City Council directed staff to evaluate ways to balance these issues, including a
potential implementation of a community benefits program for development projects. The
purpose of this overview is to address the steps that have been taken to review various methods
to address growth, quality of life, and to provide a summary of the reviewed approaches, as well
as their benefits and constraints.
History of Process
• General Plan
On December 4, 2014, Cupertino’s City Council adopted an amended General Plan titled
Community Vision 2040. The amended plan reflects community input, regulatory
changes, best practices, and the desire to achieve community‐building, sustainability,
economic, and fiscal objectives. The City Council continued the considerations related to
development heights, development allocations, and the potential for a Community
Benefits Program until 2015.
• Community Benefits
In early 2015, the City engaged Economic & Planning Systems (EPS) to provide
information regarding the advantages and disadvantages based on a variety of existing
Community Benefit Incentive Zoning (CBIZ) programs in California and to assist with
discussions regarding a potential program in Cupertino.
• Additional Programs Analyzed
During this research on CBIZ programs, various alternative options to address growth
and quality of life were considered, including growth allocations programs and regulation
through General Plan land use designations and zoning.
Assessment of Community Concerns
The main areas of concern regarding development in the City that have been addressed
throughout this process revolve around the following:
• Impacts on schools and lack of school resources, such as facilities, land and funding;
• Impacts on and lack of public facilities and utilities, such as libraries, a community center
and utility systems;
• Impacts on and lack of public open space, parks and trails; and
• Impacts on transportation network, including inadequacy of city-wide bicycle, pedestrian,
transit improvements and facilities.
45
2
OAK #4824-1644-4195 v4
Community Benefit Incentive Zoning
California cities have a long history of exacting community benefits through a variety of
mechanisms, including fees, conditions of approval, and development agreements. More
recently, Community Benefit Incentive Zoning (CBIZ) programs have offered an alternative
approach. CBIZ programs are structured around an exchange in which municipalities offer
optional increases in development potential in return for public assets (or funds) desired by the
community. The incentive must be above what normally would be allowed and the public benefit
must be beyond what otherwise would be required. Because these programs are optional,
development outcomes vary based on the degree of participation in the plan. That is, some
developments may not take advantage of the incentive while others do. The optional nature of
the program creates increased uncertainty regarding the final urban form that ultimately will be
achieved.
The magnitude of the community benefit sought must be equal to or less than the value of the
incentive offered. In order for community benefits to be achieved, the public sector must create
value through the provision of an incentive (commonly increased development density). CBIZ
programs are founded on the concept of “value capture.” CBIZ programs must be carefully
tailored to be attractive to project proponents and simultaneously achieve quality of life goals of
the community. Program design and development should evaluate the range of potential
development outcomes, including the built form and magnitude of expected community benefits,
to ensure that the exchange of development rights for community benefits is desirable.
The Concept of Value Capture
Cities and government agencies create value with investments in public facilities and services
(e.g., transit, sewer upgrades) as well as through changes to the zoning code that increase the
value of land. Typically, when the public sector creates value in these ways, landowners enjoy a
financial gain in the form of higher land value, realized when they sell or develop their land. This
increase in land value is an unearned financial benefit that accrues to the private sector, though
it is generated (and commonly paid for) by tax-payer funded public entities. The term “value
capture” reflects the situation in which the public sector reclaims some of the “unearned” value
created for the private sector by public sector activities. The State of California’s Affordable
Housing Density Bonus Law is an example of a value capture program. Under this law,
developers are granted additional density allocations in return for the development of affordable
housing units.
If the public sector seeks to extract more value than is created, it is unlikely that project
proponents will use the program. Since the value of development incentives varies with market
conditions, development incentives may be very valuable in a strong market but of lesser or no
value in a weak market. Therefore, CBIZ programs respond to market conditions or anticipate
that the program will not be used during periods of market weakness.
CBIZ requires a healthy real estate market with sufficient market value to support the incentives.
For example, in order for a CBIZ program that seeks to capture value from an upzoning to be
successful, there must be market demand to support the higher-density, higher-cost real estate
products that are made available through the zoning change. Currently, Cupertino has strong
residential and commercial real estate markets and is a viable candidate for CBIZ in this regard.
46
3
OAK #4824-1644-4195 v4
CBIZ Program Basics
Literature on the topic of CBIZ programs establishes two primary types of programs, including
“negotiation-based” and “plan-based” programs. Negotiated community benefits may occur in
the context of a Development Agreement or not. Plan-based programs are “formulaic” (the term
used here) and typically are implemented in a “ministerial” fashion, without discretion.
Negotiation-Based CBIZ Program
Under a negotiated approach, the development incentive and associated community benefits
package are jointly agreed upon between the municipality and the project proponent. That is,
the CBIZ does not define fixed relationships between incentives and required community
benefits. Negotiated programs are relatively costly to administer, perceived by the community
as opaque processes and may be viewed as risky by the development community. However,
these programs offer the flexibility to increase or reduce community benefit requirements to
reflect changing market conditions. The primary advantage of negotiation-based programs is
that the potential for the community benefits requirement may be crafted to reflect the
economics of the proposed project and the current real estate market, while the disadvantage is
the negotiation process is commonly highly labor intensive and, therefore, may not be practical
for smaller projects.
Formulaic (Plan-Based) CBIZ Program
Under a formulaic (plan-based) approach, specific development incentives are made available in
return for the provision of commensurate pre-defined community benefits. The principal
advantages of a formulaic approach are the reduction of project risk, for both the development
community and the municipality, through program certainty and lower program costs. The key
disadvantages are that the program cannot respond to unique project challenges or fast-
changing market conditions.
Case Studies
EPS studied CBIZ programs in San Diego, Emeryville, Santa Monica, and Berkeley. The table
below offers a high-level overview of these programs. The following section details the program
in Santa Monica, which seeks to incorporate elements of the formulaic and negotiated
approaches to CBIZ.
47
4
OAK #4824-1644-4195 v4
Overview of Case Study Programs
City of Santa Monica
As part of the City of Santa Monica’s most recent General Plan Update, a community outreach
process explored the question “what makes a livable city?”. Responses led urban planners to
land use standards that could maintain the City’s unique attributes, improve neighborhood
livability, and provide affordable housing. Santa Monica’s Land Use and Circulation Element
(LUCE) update, adopted in 2010, reflects a six-year community input process and provides for
community benefits though a unique “tiered” approach. With the LUCE in place, the City has
begun implementation steps, including the preparation of an updated Zoning Ordinance.
The Santa Monica Community Benefits Program was adopted as part of the LUCE in 2010. The
Plan establishes a three-tier system in which a base tier of development (Tier I) is allowed as of
right and approval is “ministerial” (non-discretionary) while higher “bonus” levels of development
require the provision of community benefits and approval is discretionary.
Per the LUCE, in most of the commercial areas, the maximum base height for a project without
community benefits is 32 feet (typically 2 stories). Development above this Tier I level requires
community benefits. The LUCE calls for projects seeking development above the base level to be
sorted into two tiers (Tier II and Tier III). Tier II projects must provide community benefits that
will be considered through a discretionary permit or Development Agreement (DA) process. Tier
III projects require additional community benefits to be negotiated in a DA.
Santa Monica’s five priority categories of Community Benefits include:
1. Trip reduction and traffic management;
2. Affordable and workforce housing;
CBIZ
Design
City of
San Diego
City of
Emeryville
City of
Santa Monica
City of
Berkeley
Basic
Method
Formulaic Formulaic Formulaic &
Negotiated
Negotiated
Determination
of Community
Benefit
Predetermined
exchanges and
charges
Point
system for
project
elements
Formulaic program
under
development;
Negotiated
incentives by
Development
Agreement
Negotiated by
Zoning
Adjustments
Board
Key Incentive
Type
FAR Bonus Height, FAR,
and DU/Acre
FAR Bonus Height
48
5
OAK #4824-1644-4195 v4
3. Community physical improvements (e.g., streets, open space, neighborhood retail);
4. Social/cultural facilities; and
5. Historic preservation.
Santa Monica has not fully implemented the LUCE. Today, projects that seek to develop at levels
above the base entitlement must pursue a DA with the City. City staff is seeking to fully
implement the Community Benefits Program with the updated City Zoning Ordinance, which is
currently under development. The revised Zoning Ordinance will detail the community benefit
requirements that allow additional density for Tier II projects. While the Planning Commission
had considered a points system for Tier II projects, Santa Monica anticipated that this approach
would be challenging to implement and has not been adopted. The City also explored the
potential to charge certain impact fees and require affordable housing from Tier II projects.
These requirements likely would have taken advantage of nexus studies that justify maximum
fee levels. As community benefits may constitute an exaction under California Law, the City
seeks to demonstrate a proportional relationship between the community benefit payment and
the impact of the project.1 Alternatively, Tier II projects could have had the option provide on-
site amenities that satisfy Tier II requirements.
Currently, Santa Monica relies heavily on the use of DA to negotiate optimal community benefits.
While the DA process is highly flexible and allows for a diverse range of potential benefits, these
agreements commonly are time consuming and thus expensive to implement. Despite this, the
market potential for development in Santa Monica is exceptionally strong and as of 2012, 24 DAs
had been approved or were pending since the adoption of the LUCE in 2010. While developer
interest in pursuing projects above base zoning in exchange for community benefits is strong,
the City is seeking to curtail the number of projects that come through a DA process due to the
burden on City staff.
Benefits and Constraints
CBIZ programs allow additional development, whether in the form of height or floor area ratio,
and do not regulate the pace or ability to develop. Therefore, while they may address the
impacts of a proposed project and the provision of community benefits to address those impacts,
CBIZ programs allow such development through the implementation of zoning ordinances.
Basically, in exchange for addressing the areas of community concern noted, the City would be
allowing increased height or other development above the base zoning.
Formulaic CBIZ programs provide clear guidelines for applicants in terms of the additional
development they can achieve. However, such programs provide very little discretion since the
additional bonuses are structured in the zoning ordinance. Negotiated programs, on the other
hand, can be very difficult to administer and they do not provide the certainty to developers that
is inherent in a formulaic program.
1 See Planning Commission Report: Zoning Ordinance Update: Implementing Tier 2 Community
Benefits, April 3, 2013.
49
6
OAK #4824-1644-4195 v4
Growth Management Programs
Growth management is a tool that has been used by California cities for over 40 years. Growth
management systems regulate the amount of development that can take place in any given
period of time. For example, growth management systems may include a population or housing
cap or a commercial square footage cap.
Some programs operate as a “competition,” whereby developers seek to obtain development
allocations through an application process conducted on a set basis, typically once or twice a
year. Generally, applicants will be required to obtain growth allocations in order to proceed with
development. The City of Morgan Hill has adopted such an approach, which is described in more
detail below and is currently being implemented.
A number of other California cities have adopted competitive growth allocation programs, which
were later eliminated or suspended. The City of Brentwood implemented a competitive growth
management program for residential projects, the RGMP, for a number of years during its
greatest periods of growth. The RGMP was suspended in 2011 due to the recession. In 2005,
the City of Ventura eliminated its development cap and competitive process as established by its
Residential Growth Management Program.
Further, some cities limit growth, but do not require a competition for allocation. For example,
the City of Livermore has set a cap on residential units every three years, with numbers ranging
from 140 to 700 units. The City of Petaluma, the first city in California to adopt a residential
growth management system in the early 1970s, also has a maximum allotment of units, but no
competitive process.
While the City of Cupertino currently sets city-wide development allocations over its General Plan
horizon, it does not currently have a competitive or metering process in place.
Case Study - City of Morgan Hill
The City of Morgan Hill’s Residential Development Control System (RDCS) issues allotments to
developers who wish to build residential units in the City through a competition process. The
City has used this system since 1977 prior to the implementation of the Regional Housing Needs
Allocation (RHNA) process by Housing Element Law. The impetus of the RDCS was to address
the impacts of intense growth at a time when the infrastructure was not prepared to absorb the
growth. The population growth in the City impacted the ability of the City to provide sewage
treatment, water and other necessary municipal services. The RDCS was initially adopted by
ballot measure and has been modified over the years to meet the City’s needs and address
exemptions.
The competition is based on an evaluation system that utilizes a series of standards and criteria
set forth in the Morgan Hill Municipal Code. Morgan Hill’s General Plan describes the RDCS in the
following way, with allowances for small development projects:2
2 Morgan Hill’s General Plan, http://www.morganhill.ca.gov/DocumentCenter/Home/View/1148
50
7
OAK #4824-1644-4195 v4
This system shall provide for awards of development allotments based on the number of points
scored for all development proposals biennial competition, or outside of a competition but based
on requiring projects to achieve a minimum point score . . . . The point scale used shall take into
account the impact of the proposed development on the following public facilities and services:
water supply system, sanitary sewer and treatment plant, drainage and runoff, fire and police
protection, traffic and other municipal services.
Proposed developments shall be awarded points for provision of schools, and related facilities,
open space, orderly and contiguous development, public facilities, parks and trails, low-income
and moderate income housing and housing for the elderly, and diversity of housing types; and
for quality of architectural design and site design.
Small residential developments provide special benefits to the City by encouraging local
developers, providing design variety, and promoting utilization of smaller lots. These
developments do not impose as high a burden on municipal services as do larger projects,
because their demands are incremental and they tend to be infill developments. Such small
developments may be unable to compete with larger developments in terms of the levels of
amenities provided. In order to treat small developments in a manner reflecting their benefits to
the community, the Residential Development Control System shall be designed to provide for
small development through appropriate means selected by the City Council, such as a separate
small project competition and a more streamlined and less costly process.
The process takes places on an annual or biannual basis and developers who wish to build
housing units are required to compete for the ability to obtain a development allocation. The
process begins by dividing projects into various categories for the competition, such as “small”
projects, multi-family housing and open market. Each year, Morgan Hill determines the number
of units available in each category and then evaluates projects according to a set of objective
standards and criteria in 14 separate categories. Morgan Hill’s Municipal Code provides the
specifics of the city’s point system and specific guidelines for how to earn points in various
categories, such as schools, open space, public facilities, parks and livable communities.
Generally, projects with the highest number of points receive a building allocation. Thereafter,
the project applicant applies for the land use entitlements required to proceed with the proposed
project. All projects that receive RDCS allotments must enter into a Development Agreement.
Traditionally, Morgan Hill received more requests for allotments than the required allocations.
However, more recently, most projects were able to receive allocations. In addition to the time
required to process requests for allocations, Morgan Hill must also continue to monitor the
projects to ensure compliance with the RDCS program.
51
8
OAK #4824-1644-4195 v4
While it appears that the RDCS has served Morgan Hill well, the administration has been time
intensive and has required a significant amount of staff time. Morgan Hill is currently in the
midst of its Morgan Hill 2035 project and is considering how to streamline and improve the
system “to be more efficient, effective, and sustainable while maintaining its most important
benefits: a population cap, pace of development; high quality development; and contribution
toward community amenities.”3
Benefits and Constraints
Growth allocation programs with a competitive process provide benefits to the public and ensure
a good pace of development. However, they are administratively burdensome as they require a
great deal of staff time to implement. Further, if proposed development is less than the annual
allocation, there is no ability to review the various applications to consider the potential benefits
of high quality development or community amenities. A complicated growth allocation system
can also discourage developers that are not familiar with the system or City processes. Where
growth allocation programs set a cap on the number of residential units, they must be consistent
with a city’s Housing Element and may also draw more scrutiny if they are challenged in court.
Lastly, once the criteria and standards in the program are established, it may be difficult to
encourage flexibility and to respond to changing market conditions or City desires or trends. The
fact that a number of cities have either eliminated or suspended previously adopted growth
allocation programs and that Morgan Hill is looking at other approaches is indicative of the
inherent difficulties in implementing such a program.
Land Use Regulation
Growth and development have traditionally been regulated through land use designations and
zoning. Cities implement and control growth and development through their General Plans,
Specific Plans and zoning and can address impacts of development through development impact
fees and city regulations, such as enhanced design review regulations. Cities also enter into
negotiated Development Agreements with developers, which allow for developers to obtain
vested rights and for the City to negotiate desired community amenities to address the impacts
of development.
Although not located in the United States, the City of Vancouver, British Columbia, Canada, has
adopted a community benefits program that combines the city’s ability to rezone development
sites with community benefits. In Vancouver, developers are required to provide Community
Amenity Contributions, or CACs, when the City Council grants development rights through
rezoning. CACs are in-kind or cash contributions that are used to fund community centers,
libraries, parks and other community spaces. Such a program, however, would not be workable
under California law.
In California, State Planning and Zoning Law allows the local legislative bodies the authority to
establish their own procedures for the processing of amendments to its General Plan. General
Law cities, such as Cupertino, are limited to four (4) General Plan Amendments each year;
however, cities may dictate the method used to process/evaluate any amendments.
3 See City Council Staff Report, Morgan Hill 2035: RDCS Update, April 1, 2015.
52
9
OAK #4824-1644-4195 v4
In addition to reviewing projects for General Plan consistency and quality of life goals, cities can
also implement additional nexus fees (such as community facilities fees, transportation impact
fees, utility impact fees, etc.) and additional design review guidelines to address the impacts of
development.
Conclusion
The following is a summary of pros and cons of the models based on the review of the
various Community Benefit Incentive Zoning (CBIZ) and Growth Allocation models:
1. Requiring community benefits (or in-lieu payments for community benefits) as an
absolute condition of development, may constitute an exaction under California law, and thus
the City may need to demonstrate a proportional relationship between the community benefit
payment and the impact of the project.
2. Formulaic zoning incentive programs (e.g., City of San Diego Downtown Community
Plan) provide very little discretion since the development incentives and community benefits
are predetermined and codified by zoning.
3. Discretionary zoning incentive programs (e.g., City of Berkeley Downtown Area Plan)
require protracted negotiation and discussion before the City can determine that a project
applicants offer of “substantial community benefits” warrants granting of a bonus in height or
floor area ratio. Also, the lack of specific criteria can lead to lack of transparency, difficulty in
administering the program and lack of consistency between projects. A discretionary CBIZ
program also would require updates to the City’s zoning code.
4. Metering residential development annually (e.g., Morgan Hill, Brentwood, Livermore,
etc.) would require changes to the Housing Element and is not advisable given the May 31,
2015 deadline for its adoption. The City would also need to ensure that any metering
program would still allow its housing obligations to be met. Even if the process is
implemented only for non-residential development, the program provides much less flexibility
and is cumbersome to administer since it involves detailed criteria, scoring, a specific
checklist of community benefits and deadlines for processing and building of development.
5. A metering approach can create a competitive process where projects can showcase
community benefits in order to be considered for processing. Morgan Hill is a good example
of this process. A newer example is the City of Mountain View, where proposals for a limited
amount of development are being reviewed along with a community benefit approach in the
North Bayshore area.
6. Growth allocation metering programs require an additional amount of planned growth
in the General Plan (e.g. Brentwood and Morgan Hill.) However, these programs can work
well in years in which there are projects competing for development since the quality of site
plans and community benefits is high. In years where there are fewer projects competing for
an allocation that is built-into the zoning or General Plan, quality of the development and/or
community amenities may not be of the same quality as in competitive years.
53
10
OAK #4824-1644-4195 v4
7. A process that provides procedures for General Plan amendments can provide the
most flexibility since development assumptions are not already built in and cities have more
discretion about amending General Plans, except with respect to legal requirements for
Housing Elements.
In considering its options to address growth, manage development and respond to the
community concerns, Cupertino should consider implementing a program that achieves the
following:
• Ability to achieve goals of General Plan
• Ease of implementation
• Desire for flexibility versus specific requirements (as in a General Plan or zoning)
• Ensure a diverse and vital economic base
• Ensure the City can meet its housing obligations
• Ability to achieve orderly development of the City through a managed process.
Ensure that additional development can achieve/improve facility/service and quality of life
standards for the community
54
COMMUNITY DEVELOPMENT DEPARTMENT
CITY HALL
10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3308 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: June 30, 2015
SUBJECT
Study Session on Policy for Processing General Plan Amendment Applications.
RECOMMENDED ACTION
Recommend that the City Council conduct a study session and comment on the proposed
procedures for processing General Plan amendment applications (Attachment A).
DESCRIPTION
Application No.: CP-2015-02
Applicant: City of Cupertino
Property Location: City-wide
BACKGROUND
On May 19, 2015, the City Council reviewed the Final 2014-2022 Housing Element, the
General Plan for potential changes to development allocations for commercial, office and
hotel uses, building heights and building planes, and the proposed policy for establishing
procedures for processing General Plan Amendment (GPA) applications (Attachment B).
At that meeting the Council provided the following direction on the proposed policy to
establish procedures for processing General Plan Amendment applications:
Directed staff to present additional details on other programs that require community
benefits such as the Cities of Mountain View and Morgan Hill.
Deferred the decision on the policy for approximately 90 days.
Placed new GPA applications on hold until a decision is made on the policy.
DISCUSSION
This report focuses on the following issues:
Comparison of incentive zoning, growth allocation and land use regulation models
that allow for community benefits in various cities;
A description of the recommended policy on processing GPAs; and
A comparison of current GPA process vs the recommended process.
55
CP-2015-02 June 30, 2015
Comparison and Conclusions from Study of Incentive Zoning, Growth Allocation and
Land use Regulation Models that allow for Community Benefits
A white paper prepared for the Council meeting on May 19, 2015, provided the pros and
cons of various incentive zoning, growth allocation and land use regulation models and
provided general guidance on developing a policy that addressed Cupertino’s concerns
and particular needs for managing growth (Attachment C). Upon reviewing the pros and
cons for the different programs administered by the various cities, staff recommended a
policy for processing applications for GPAs, which was presented at the May 19 City
Council meeting (Attachment A).
Per further direction from the City Council at the May 19, 2015 meeting, a follow up white
paper has been prepared that includes a more detailed discussion of programs
implemented by the Cities of Berkeley, Santa Monica, San Diego, Mountain View and
Morgan Hill (see Attachment D). Table 1 provides a comparison summary of the different
types of models studied on different aspects of the programs including:
Whether the growth is built in to the General Plan and the Zoning Code;
Types of Community Benefits received/expected in exchange for incentives offered;
Discretion in project review; and
Challenges and ease of administration of the program.
Table 1: Comparison of Programs that have Community Benefit component
Growth Built in to
General Plan and
Zoning Code?
Community
Benefits
Discretion in
project review Administration
Formulaic Zoning Incentive
Programs (e.g. City of San Diego
Downtown Community Plan)
Yes Predefined Minimal Minimal
Discretionary CBIZ Programs
(e.g. City of Berkeley Downtown
Area Plan)
Yes Negotiated Moderate
Protracted negotiation
Lack of transparency
Lack of consistency
Growth Allocation Metering
Programs (e.g. Cities of Morgan
Hill, Brentwood, Livermore,
Mountain View)
Yes Competition
based Moderate
Less flexible
Cumbersome involving
detailed criteria,
scoring and checklists
Land Use Regulation No
Could be
structured to
be
competition
based
Maximum
except
Housing
Element
projects
Transparent
Allows project preview
Applicant to offer
appropriate voluntary
community amenities.
56
CP-2015-02 June 30, 2015
The following is a summary of conclusions based on the review of the various Community
Benefit Incentive Zoning (CBIZ) models, Growth Allocation models and the consideration
of land use regulation as a community benefit model:
1. Formulaic zoning incentive programs (e.g., City of San Diego Downtown Community
Plan) provide less discretion since the development incentives and community benefits
are predetermined and codified by zoning.
2. Discretionary zoning incentive programs (e.g., City of Berkeley Downtown Area Plan)
require protracted negotiation and discussion before the City can determine that a
project applicant’s offer of “substantial community benefits” warrants granting of a
bonus in height or floor area ratio. Also, the lack of specific criteria can lead to lack of
transparency, difficulty in administering the program and lack of consistency between
projects. A discretionary CBIZ program also would require updates to the zoning code.
3. Metering residential development annually (e.g., Morgan Hill, Brentwood, Livermore)
would require changes to the recently adopted Housing Element and additional HCD
review. The City also would need to ensure that any metering program would still
allow its housing obligations to be met. Even if the process is implemented only for
non-residential development, the program provides little flexibility and is cumbersome
to administer. Such a program would require a process that involves detailed criteria,
scoring, and a specific checklist of community benefits, as well as deadlines for
processing and building of development.
4. A development cap or metering approach establishes a supply constraint which may
support a competitive process. When market demand exceeds supply, projects may be
required to showcase community benefits in order to be considered for processing. The
Mountain View and Morgan Hill case studies offer good examples of this type of
process. In both cities, competition for project entitlements has generated substantial
public benefits from new development, but the programs are labor intensive for City
Staff to implement and the success of the competition is highly dependent on market
conditions. In addition, these processes introduce additional investment risk for
development investors active in the community, due to increased uncertainty about
project approval.
5. Growth allocation programs implement growth planned in the General Plan, and can
achieve community benefits. However, while these programs work well in years in
which there are projects competing for development, in years during which there are
fewer projects competing community benefits offered are not as significant.
6. A process that provides procedures for General Plan Amendments can provide the
most flexibility, because development assumptions are not already built in and cities
have discretion to amend their General Plans, except with respect to legal requirements
for Housing Elements. This approach would provide the ability for the City to review a
57
CP-2015-02 June 30, 2015
development proposal and determine if it meets the goals and quality of life standards
of the City, such as through the provision of community amenities. If multiple
proposals for general plan amendments are submitted, based on the case studies
examined here, it seems likely to increase the community amenities offered by project
proponents, particularly when economic conditions are strong.
In considering options to address growth, manage development, and respond to the
community concerns, the following should be achieved by any program implemented:
Ability to achieve goals of General Plan
Ease of implementation
Desire for flexibility versus specific requirements (as in a General Plan or zoning)
Ensure a diverse and vital economic base
Ensure the City can meet its housing obligations
Ability to achieve orderly development of the City through a managed process
Ensure that additional development can achieve/improve facility/service and
quality of life standards for the community
The recommended procedures for processing of General Plan amendment applications
achieves the above goals and also ensures a greater level of transparency and public input.
The discussion below provides a brief discussion of the current procedures and additional
details on the recommended procedures. In addition, see Attachment E for a summary
flowchart showing a comparison of the current and proposed procedure.
Current Procedure for Processing General Plan Amendment Applications
Currently, GPA applications are processed as they are received. Project review is
completed concurrently to ensure that other aspects of the General Plan and zoning
regulations are met by the project. If a Development Agreement is sought by the applicant,
one is negotiated at this time, including any items that are offered by the applicant as
community benefits. Environmental review for the proposed project is processed
concurrent with project review. Upon completion of the environmental and project review,
public hearings are scheduled with the Planning Commission and City Council for a final
decision on the environmental review, project, proposed General Plan Amendments and
Development Agreement, if any.
Public input notification is provided through neighborhood noticing, legal notices for
meetings and site signage. Public input is sought through neighborhood meetings and at
hearings at the Planning Commission and City Council. However, since each application is
processed separately, neither the Council nor the public have a chance to get a preliminary
look at the applications before they are processed.
58
CP-2015-02 June 30, 2015
Therefore, the current process is not as transparent, does not allow comparison of
applications, received and being processed, in a given year, does not consider issues such
as early public input, achievement of key City goals, and time and resource requirements,
prior to processing these applications. Additionally, since each application is reviewed
separately and applicants do not compete for authorization with other projects, there is no
incentive for the applicant to offer community amenities.
Proposed Procedure for Processing General Plan Amendments Applications
Under the proposed procedure, GPA applications would not be processed as they were
received. Instead the following process would be applied:
All GPA applications would have to be submitted by a certain date every year in order
to be considered for processing that year.
The GPA applications would be scheduled for a Council meeting once a year, at which
the Council would authorize applications for processing.
Public input would be sought by sending a city-wide postcard and providing project
information on the City website.
Project information would include conceptual plans, community amenities, General
Plan amendments sought and other features proposed by applicants.
The Council would consider the following criteria when deciding whether or not to
authorize GPA applications:
o General Plan goals achieved by the project;
o Quality of architectural and site design;
o Fiscal impacts of the project;
o Affordable housing provided by the project;
o General Plan amendments (and/or other variances) sought by the project; and
o Voluntary community amenities provided by the project
The Council decision would authorize the applicant to submit an application for the
GPA. It would not guarantee approval of projects. Projects authorized to proceed,
would then be processed as they are currently. Council’s final decision on each project
would be made after reviewing all aspects of the proposal including site and
architectural design, environmental review, public input, etc.
If multiple GPA projects were authorized for processing, each project would be
reviewed and staff would ensure that they were brought for Council review in a
manner that would not exceed four GPAs per calendar year. Projects could also be
bundled together as needed so as not to exceed four per year.
Projects not authorized in the current annual period would have to re-apply,
potentially with changes, for consideration during a subsequent annual period.
59
CP-2015-02 June 30, 2015
An annual review and authorization process would ensure:
Transparency – the public would get a chance to review the projects and provide
input before the applications were authorized for processing. In addition, this
would give the public notification on which projects would be processed and
allow them to be informed on each project.
Early Input – the Council meeting would enable the applicant and staff to consider
comments from the Council and the public as the project was reviewed.
Voluntary Community Amenities – the annual process would allow projects to
compete. As noted in the review of programs in other cities including Morgan Hill
and Mountain View, such a process would incentivize applicants to shape their
applications and offer voluntary community amenities to increase their chances for
being considered for processing.
Staff therefore recommends that the Council adopt the new procedures on processing of
General Plan amendment applications either via resolution or by ordinance.
Policy or Ordinance
The procedures for processing General Plan amendments could either be adopted by
resolution or by ordinance. Adopting it as a resolution would make it an official Council
policy and could be amended through a subsequent resolution. Adopting the procedures
as an ordinance would make it part of the City’s Municipal Code and could be amended
via an ordinance amendment. Depending on direction provided by the City Council, staff
can prepare either for presentation at a future public hearing.
PUBLIC NOTICING, OUTREACH AND COMMENTS
City Council Study Session– June 30, 2015
The following table summarizes the noticing for this meeting:
Notice Agenda
Courtesy email sent to all interested
parties signed up through the project
website
Newspaper Display Ad (at least 10 days
prior to hearing)
City's official notice bulletin board (6 days
prior to the hearing)
City of Cupertino’s website (6 days prior to
the hearing)
Project website (5 days prior to hearing)
NEXT STEPS
If the Council adopts the policy, a deadline for the first annual review of applications will
be established and the policy will be implemented for all applications received thereafter. If
60
CP-2015-02 June 30, 2015
the Council prefers an ordinance approach, staff will follow the process for ordinance
amendments.
If the Council decides not to adopt the policy for authorization of General Plan amendment
applications, the City would continue with the current procedure of processing General
Plan amendment applications as they are submitted.
_____________________________________
Prepared by: Piu Ghosh, Senior Planner
Reviewed by: Aarti Shrivastava, Assistant City Manager
Approved for Submission by: David Brandt, City Manager
Attachments:
A - Proposed procedures for Processing General Plan Amendment applications
B - May 19, 2015 City Council Staff Report
C - White Paper on Development Management Programs dated May 8, 2015
D - Supplemental White Paper on specific Development Management programs dated
June 24, 2015
E - Flowchart comparing the current and proposed procedure for processing General
Plan amendment applications
61
DEVELOPMENT MANAGEMENT
OVERVIEW
Prepared for the City of Cupertino
By:
Economic & Planning Systems
and
Burke, Williams & Sorensen, LLP
June 24, 2015
62
Table of Contents
INTRODUCTION ............................................................................................................. 1
COMMUNITY BENEFIT INCENTIVE ZONING............................................................................... 2
CITY OF SAN DIEGO CASE STUDY ....................................................................................... 4
CITY OF EMERYVILLE CASE STUDY ....................................................................................... 7
CITY OF BERKELEY CASE STUDY ........................................................................................ 10
CITY OF SANTA MONICA CASE STUDY ................................................................................. 11
CITY OF MOUNTAIN VIEW CASE STUDY ............................................................................... 12
GROWTH ALLOCATION PROGRAMS ..................................................................................... 16
CITY OF MORGAN HILL CASE STUDY .................................................................................. 16
CONCLUSIONS ............................................................................................................ 20
63
Development Management Overview
June 24, 2015
1
Introduction
Like many communities throughout the State, Cupertino is concerned about balancing the
benefits of economic development with the effects of rapid growth. Impacts from growth can
overwhelm a City’s infrastructure and affect quality of life in the community. The City Council
directed staff to evaluate ways to balance these issues, including a potential implementation of a
community benefits program for development projects. The purpose of this overview is to
present various methods to address growth, quality of life, and to provide a summary of
development management approaches, including assessment of their benefits and constraints.
History of Process
• General Plan
On December 4, 2014, Cupertino’s City Council adopted an amended General Plan titled
Community Vision 2040. The amended plan reflects community input, regulatory changes,
best practices, and the desire to achieve community‐building, sustainability, economic, and
fiscal objectives. However, the City Council continued the considerations related to
development heights, development allocations, and the potential for a Community Benefits
Program until 2015. In May 2015, the City council voted to maintain current development
allocations but also authorized staff to continue to study and collect public input on
approaches to processing General Plan Amendments.
• Community Benefit Incentive Zoning
In early 2015, the City engaged Economic & Planning Systems, Inc. (EPS) to provide
information regarding the advantages and disadvantages of incentive zoning based on study
of a variety of existing Community Benefit Incentive Zoning (CBIZ) programs in California
and to assist with discussions regarding a potential program in Cupertino.
• Growth Management
The City, with support from Burke, Williams, & Sorensen, LLP (BWS), also considered various
alternative options to address growth and quality of life, including growth allocation programs
and regulations implemented through General Plan land use designations and zoning.
Summary of Development Management
The CBIZ and Growth Management programs studied reviewed for this study use a range of
approaches to achieving community benefit contributions from new real estate development
projects. In general, the programs generate community benefits using three principal
approaches.
1. The program offers increased development potential (e.g., a density bonus) in return for a
cash payment from the project developer;
2. The program offers increased development potential in return for project modifications
and/or community improvements (e.g., affordable housing, parkland, green building
features) provided by the developer; and
64
Development Management Overview
June 24, 2015
2
3. The program establishes a competition through which project proponents commit to
providing community benefits in hopes of being selected as one of a limited number of
project proponents to be allowed to submit a development application and seek entitlement.
Assessment of Community Concerns
Residents and other stakeholders in Cupertino indicated throughout the General Plan and
Development Management processes that the main areas of concern regarding development in
the City are the following:
• Impacts on schools, such as facilities, land, and funding;
• Impacts on public facilities and utilities, such as libraries, community centers and utility
systems;
• Impacts on public open space, parks and trails; and
• Impacts on transportation networks, including roadway congestion and transit capacity.
Community Benefit Incentive Zoning
California cities have a long history of obtaining community benefits from real estate
development through a variety of mechanisms, including fees, conditions of approval, and
development agreements. Community Benefit Incentive Zoning (CBIZ) programs offer an
alternative approach. CBIZ programs are structured around an exchange in which municipalities
offer optional increases in development potential in return for public assets (or funds) desired by
the community. The development incentive must be above what normally would be allowed and
the public benefit must be beyond what otherwise would be required. Because these programs
are optional, development outcomes vary based on the degree of participation in the plan. That
is, some developments may not take advantage of the incentive while others will. The optional
nature of the program creates increased uncertainty regarding the final urban form that
ultimately will be achieved.
Additionally, the magnitude of the community benefit sought/expected must be equal to or less
than the value of the incentive offered. In order to receive community benefits, the public sector
creates value through the provision of an incentive (commonly increased development density).
CBIZ programs are founded on the concept of “value capture.” CBIZ programs must be carefully
tailored to be attractive to project proponents and simultaneously achieve quality of life goals of
the community. Program design and development should evaluate the range of potential
development outcomes, including the built form and magnitude of expected community benefits,
to ensure that the exchange of development rights for community benefits is desirable.
The Concept of Value Capture
Cities and government agencies create real estate value with investments in public facilities and
services (e.g., transit and utilities upgrades) as well as through changes to zoning code that
increase the value of land. Typically, when the public sector creates value in these ways,
landowners enjoy a financial gain in the form of higher land value, which is realized when they
sell or develop their land. This increase in land value is an unearned financial benefit that accrues
to the private sector, though it is generated (and commonly paid for) by tax-payer funded public
entities. The term “value capture” reflects the situation in which the public sector reclaims some
65
Development Management Overview
June 24, 2015
3
of this unearned value created for the private sector by public sector activities. The State of
California’s Affordable Housing Density Bonus Law is an example of a value capture program.
Under this State law, developers are granted additional density allocations in return for their
development of affordable housing units, a policy goal for the State.
If the public sector seeks/expects to collect more value than is created, in the form of
community benefits, it is unlikely that project proponents will use the program. Since the value
of development incentives varies with market conditions, development incentives may be very
valuable in a strong market but of lesser or no value in a weak market. Therefore, CBIZ
programs respond to market conditions or anticipate that the program will not be used during
periods of market weakness.
CBIZ requires a healthy real estate market with sufficient market value to support the incentives.
For example, in order for a CBIZ program that seeks to capture value from an incentive (such as
increased density or greater development potential) to be successful, there must be market
demand to support the higher-density, higher-cost real estate products that are made available
through the zoning change. Currently, Cupertino has strong residential and commercial real
estate markets and is a viable candidate for CBIZ in this regard.
CBIZ Program Basics
Literature on the topic of CBIZ programs establishes two primary types of programs, including
“negotiation-based” and “plan-based” programs. Negotiated community benefits may occur in
the context of a Development Agreement or other negotiation process. Plan-based programs are
“formulaic” (the term used here) and typically are implemented in a “ministerial” fashion,
without discretion.
Negotiation-Based CBIZ Program
Under a negotiated approach, the development incentive and associated community benefits
package are jointly agreed upon between the municipality and the project proponent. That is, the
CBIZ program does not define fixed relationships between incentives and required community
benefits. Negotiated programs are relatively costly to administer, may be perceived by the
community as opaque processes, and may be viewed as risky by the development community.
However, these programs offer the flexibility to increase or reduce community benefit
requirements to reflect changing market conditions. The primary advantage of negotiation-based
programs is that the potential for the community benefits requirement may be crafted to reflect
the economics of the proposed project and the current real estate market, while the
disadvantage is that the negotiation process can be labor intensive and may not be practical
(particularly for smaller projects).
Formulaic (Plan-Based) CBIZ Program
Under a formulaic approach, specific development incentives are made available in return for the
provision of commensurate pre-defined community benefits. The principal advantage of a
formulaic approach is the reduction of project risk, for both the development community and the
municipality and community, due to program certainty and lower program administration costs.
The key disadvantage is that the program cannot respond to unique project challenges or fast-
changing market conditions.
66
Development Management Overview
June 24, 2015
4
City of San Diego Case Study
In 2006, the City of San Diego adopted its Downtown Community Plan. The primary goals of the
Plan are to increase development intensity in the downtown area and to provide new community
amenities. To this end, the City developed a density bonus program in conjunction with the plan.
CBIZ Plan Description
The City of San Diego offers a formulaic, plan-based CBIZ with clearly defined incentives. The
program allows additional density bonuses (greater FAR) and/or regulatory exemptions in
exchange for specific voluntary community benefits or predetermined cash payments. The plan
includes a menu of potential options that offer a variety of ways in which projects may achieve
greater density through the provision of community benefits. The Plan defines the following
bonus options:
• Retail along active streets - exempts retail/commercial and public uses on the ground floor
from FAR calculations on designated Main Streets and Commercial Streets;
• Historical Resources – excludes the gross floor area of a historic structure from FAR
calculations if the character of the structure is rehabilitated;
• Affordable housing – offers a FAR bonus (applied to the residential component of a project)
for projects meeting on-site affordable housing requirements (bonus varies with the type of
affordable housing being built);
• Parks and Public Infrastructure – offers a “FAR Payment Bonus Program” under which,
depending on a site's location, developers can choose to purchase density allowances up to
additional 5.0 FAR over base zoning; and
• Specific Amenities and Improvements – offers increases in FAR in exchange for the provision
of improvements or amenities (urban open spaces, green roofs, family units, right-of-way
improvements, and employment uses).
There also is a component of the program that consists of a Transfer of Development Rights
Program for Parks and Historical Resources in which the Plan determines eligible “sending” sites
and “receiving” sites for development rights. The Plan calls for a “TDR Bank” or other
mechanisms to facilitate transfers.
Figure 1 below illustrates the magnitude of combined incentives (bonus FAR) that may be
pursued within San Diego’s Downtown Community Plan area. Figure 2 provides a summary of
the incentive program, including both the benefit requirement and the associated incentive
provided by the San Diego program.
67
Development Management Overview
June 24, 2015
5
Figure 1 Map of Bonus FAR Provisions
Source: San Diego Municipal Code
68
Development Management Overview
June 24, 2015
6
Figure 2 Community Benefit Incentives
Source: City of San Diego
Plan Efficacy
Under the San Diego plan (as of 2012), 13 out of 18 eligible projects had used at least one of the
FAR bonus options. Five of the projects elected to use the affordable housing density bonus
leading to 141 new affordable units in the downtown. Three projects built 3-bedroom units
creating 87 new units total.1 The popularity of eco roofs prompted staff to increase benefits
1 Statistics from City of San Diego
Public Benefit/
Development Amenity
Maximum FAR Bonus
(addition to base FAR)Notes
Affordable Housing Formulaic In compliance with State Density Bonus Law
Urban Open Space
10% of site 0.5
20% of site 1.0
Three-Bedroom Units
50% of residential
GSF 0.5
80% of GSF
residential 1.0
Eco Roofs 1.0 To receive max bonus roof must be
accessible to residents
Public Parking Formulaic 1 square foot of parking earns 1 square foot
bonus development entitlement
FAR Payment Bonus
Program 5.0
Set in 2007 at $15/sf and updat ed annually
based on CPI; funds parks, open space, and
right of way acquisitions
Green Building 2.0
Performance path (allows applicants to
demonstrate level of sustainability) and
prescriptive path (select from a menu of
green building options)
Must meet Downtown Design Guidelines
and be open to the general public between
the hours of 6 AM and 10 PM everyday
10% of units with a minimum of five three-
bedroom dwelling units
69
Development Management Overview
June 24, 2015
7
requirements in the 2012 program amendments (i.e., the bonus FAR of 1.0 for an eco-roof, has
been amended to 0.5 to 1.0 FAR depending on whether the eco-roof is accessible to residents). A
recent update to the Plan has increased the maximum FAR available through the bonus payment
program.
City of Emeryville Case Study
The City of Emeryville’s City Council adopted an updated General Plan in October 2009. The new
Plan introduces a CBIZ program which offers height and density increases in return for
community amenities.
CBIZ Plan Description
The City of Emeryville’s formulaic “Bonus for Community Amenities” program allows developers
to participate in a voluntary points-based bonus system in which bonus development capacity is
exchanged for community benefits. Intensity, height, and density bonuses are permitted after
developers provide certain community amenities, including family-friendly housing, green
architecture, and public open space. The Emeryville General Plan notes that the bonuses are
“discretionary and contingent on excellence in design.” The program gives points for specific
elements that are public benefits.
Public benefits sought by the program include public open space, sustainable design, alternative
energy, water efficiency, energy efficiency, public improvements, utility undergrounding,
transportation demand management, family-friendly housing, neighborhood centers, support for
small businesses, public art, public parking, bike stations, significant structures, EV charging
stations, concealed mechanical equipment, universal design features, and other “flexible” public
benefits. The points system for the community benefit elements is based on cost, desirability,
quantity, and importance to the community. Points are redeemed for additional FAR, building
height, and density. The bonus FAR increment is capped by zoning district.
The FAR bonus is calculated by multiplying (1) the total number of points divided by the
maximum number of points by (2) the maximum allowed FAR bonus increment, as follows:
(Number of Points/Maximum Points) x Bonus FAR Increment = Bonus FAR Amount
To qualify for a bonus, the public benefits provided must be significant and clearly beyond what
otherwise would be required by City code provisions, conditions of approval, and/or
environmental review mitigation measures. Development bonuses are in addition to any density
bonuses for affordable housing. Figure 3 summarizes the points that may be awarded to a
project for specific community benefits defined by the Emeryville program.
70
Development Management Overview
June 24, 2015
8
Figure 3 Summary of Emeryville Development Bonus Point System
Source: Emeryville Zoning Ordinance
Plan Efficacy
The relatively new CBIZ program in Emeryville has been used successfully by one project, and
another project is currently under review by City staff. During 2013, the City’s Planning
Commission approved a mixed-use project that exceeded base zoning allowances. This project
sought residential density that exceeded the base by 11 dwelling units per acre, a commercial
FAR that exceeded the base by 0.24, and height that exceeded the base by 20 feet. Given the
zoning and bonus program parameters, the project needed to achieve a community benefits
score of 100 (the height sought was 100 percent of that allowed with community benefits). The
project application successfully included commercial space that met the “Neighborhood Centers”
criteria (35 points), provided sufficient “Energy Efficiency” upgrades (35 points), and featured
reuse of a “Significant Structure” (35 points), earning the project a total of 105 points. The
proposed community benefits were included as conditions of approval.
Public Benefit/
Development Amenity
Maximum
Bonus Points
Public Open Space 50
Sustainable Design 35
Alternative Energy 50
Water Efficency 35
Energy Efficiency 35
Public Improvements 50
Utility Undergrounding 50
Transportation Demand Manageme 35
Family Friendly Housing 50
Neighborhood Centers 35
Small Businesses 35
Public Art 20
Public Parking 35
Bike Station 35
Significant Structures 35
Electric Vehicle Charging Stations 35
Mechanical Equipment 20
Universal Design 50
Flexible Public Benefit N/A
71
Development Management Overview
June 24, 2015
9
City of Berkeley Case Study
The City of Berkeley initiated its Downtown Area Plan effort in 2005. In early 2012, after six
years of effort and nearly two hundred public meetings, the City Council adopted the current
Downtown Area Plan (DAP). The DAP includes the provision that all new buildings must provide
significant public benefits and that buildings over 75 feet must provide additional, significant
community benefits.
CBIZ Plan Description
The DAP, through a negotiation-based CBIZ program, allows seven buildings to be built in the
downtown area that exceed 75 feet, and these projects must provide significant community
benefits beyond those that would otherwise be required. Three buildings up to 180 feet in height
may be located in the “Core Area” and an additional four buildings up to 120 feet may be located
in the “Core” and “Outer Core.” Figure 4 presents the land use map for Downtown Berkeley. The
community benefits package required for projects over 75 feet might include affordable housing,
supportive social services, green building features, open space, transportation demand features,
job training, and/or employment opportunities.
The applicable public benefit requirements are to be included as conditions of approval and the
owner shall enter into a written agreement that is binding on all successors in interest. The DAP
also calls for establishment of a voluntary “Green Pathway” development review process that
would provide a streamlined permit process for buildings that provide extraordinary public
benefits.
Plan Efficacy
To date, not one building over 75 feet in height has completed the Berkeley CBIZ program
application process. The Residences at Berkeley Plaza (2211 Harold Way) is the first project over
75 feet to request approval under the DAP (it is potentially one of the three buildings that may
be built to 180 feet in height). The project applicant submitted Documentation of Project
Significant Community Benefits for the City of Berkeley on October 20, 2014, offering community
benefits including a Project Labor Agreement, retention of an existing cinema, transportation
demand management features, and privately-owned public open space. The City’s Zoning
Adjustments Board (ZAB) has met twice to hear public comments and to discuss the proposal.
The ZAB’s initial comments suggest that the proposed community benefits package is
unsatisfactory and that additional meetings and negotiations will be necessary for the applicant
to secure approval. Given concerns voiced by the ZAB, Berkeley’s City Council is currently
reviewing the proposed community benefit package offered by the project.
72
Development Management Overview
June 24, 2015
10
Figure 4 DAP Land Use Map
Source: Berkeley Downtown Area Plan
City of Santa Monica Case Study
As part of the City of Santa Monica’s most recent General Plan Update, a community outreach
process explored the question “what makes a livable city?” Responses led urban planners to land
use standards that could maintain the City’s unique attributes, improve neighborhood livability,
and provide affordable housing. Santa Monica’s Land Use and Circulation Element (LUCE) update,
adopted in 2010, reflects a six-year community input process and provides for community
benefits though a unique “tiered” approach, which is a blend of formulaic and negotiation-based
approaches (i.e., modest incentives are likely to be offered in exchange for the payment of
higher existing nexus-based fees and affordable housing while significant incentives require
negotiation) . With the LUCE in place, the City has begun implementation steps, including
adoption of an updated Zoning Ordinance.
CBIZ Plan Description
The Santa Monica Community Benefits Program was adopted as part of the LUCE in 2010. The
Plan establishes a three-tier system in which a base tier of development (Tier I) is allowed as of
right and approval is “ministerial” (non-discretionary) while higher “bonus” levels of development
require the provision of community benefits and approval is discretionary.
73
Development Management Overview
June 24, 2015
11
In most of the commercial areas, the maximum base height for a project without community
benefits is 32 feet (typically 2 stories). Development above this Tier I level requires community
benefits. The LUCE calls for projects seeking development above the base level to be sorted into
two tiers (Tier II and Tier III). Tier II projects must provide community benefits that will be
considered through a discretionary permit or Development Agreement (DA) process. Tier III
projects require additional community benefits to be negotiated in a DA.
Santa Monica’s five priority categories of Community Benefits are:
1. Trip reduction and traffic management;
2. Affordable and workforce housing;
3. Community physical improvements (e.g., streets, open space, neighborhood retail);
4. Social/cultural facilities; and
5. Historic preservation.
Santa Monica’s approach to administering the community benefits program has evolved from
that originally envisioned by the LUCE. In recent years, projects that sought to develop at levels
above the base entitlement needed to pursue a DA with the City. Through revisions to the LUCE,
the City now is seeking to require Tier II projects to pay higher existing nexus-based fees and
provide affordable housing. These additional fees likely will take advantage of nexus studies that
justify the maximum fee levels. As community benefits may constitute an exaction under
California Law, the City seeks to demonstrate a proportional relationship between the community
benefit payment and the impact of the project.2 While the Planning Commission had considered
a points system for Tier II projects, Santa Monica anticipated that this approach would be too
challenging to implement.
Plan Efficacy
In recent years, Santa Monica has relied heavily on the use of DAs to negotiate optimal
community benefits. While the DA process is highly flexible and allows for a diverse range of
potential benefits, these agreements commonly are time consuming and expensive to
implement. Despite this, the market potential for development in Santa Monica is exceptionally
strong and as of 2012, 24 DAs had been approved or were pending since the adoption of the
LUCE in 2010. While developer interest in pursuing projects above base zoning in exchange for
community benefits is strong, the City is seeking to curtail the number of projects that come
through a DA process due to the time and cost burden for the City.
City of Mountain View Case Study
Mountain View’s City Council adopted the North Bayshore Precise Plan in December 2014. This
plan established a CBIZ program in each of the Plan Area’s four “Character Areas.” The Plan also
capped total non-residential net new development in the Plan Area at 3.3 million square feet.
2 See Planning Commission Report: Zoning Ordinance Update: Implementing Tier 2 Community
Benefits, April 3, 2013.
74
Development Management Overview
June 24, 2015
12
Due to the constraint on development potential created by the development cap, the CBIZ
program ultimately evolved into a commercial development allocation process.
CBIZ Plan Description
The City of Mountain View General Plan recognizes incentive zoning as a strategy to procure
desired community benefits. In accordance with this strategy, the North Bayshore Precise Plan
offers a formulaic CBIZ program with bonus FAR available in exchange for specific categories of
community benefits, including transportation improvements, green buildings, and public benefit
or district-improvement projects. Each Character Area is governed by a tiered bonus FAR
program in which a base FAR is allowed for all development, while higher tiers of bonus FAR may
be earned through the provision of approved community benefits (up to a maximum FAR).
Figure 5 presents the details of the tiered CBIZ system in place in North Bayshore.
Based on the North Bayshore area’s transportation
capacity and other planning considerations, the
Precise Plan also established a cap on net new non-
residential development (office, R&D office, industrial,
service, and retail uses) in the plan area. With a
strong economy creating intense localized demand for
workspace, technology firms including Google and
LinkedIn sought to expand in the highly desirable
North Bayshore area. The Plan’s development cap
constrained supply which resulted in a shortage of
office space development potential within North
Bayshore.
As the Precise Plan process evolved, planning staff
recognized that demand for office space would
outstrip maximum allowable supply. In response, staff
established “Precise Plan Bonus FAR Review
Guidelines,” which require applicants seeking bonus
FAR to submit community benefit proposals for
consideration in the commercial FAR allocation
process (see text box at right). The guidelines
established criteria for community benefit proposals
and set a due date for submittals. With this approach,
North Bayshore Bonus FAR Review
Guidelines Qualifying Criteria
• Consistency with Precise Plan vision
and guiding priciples
• Effect on trip cap and roadway
performance
• Habitat enhancements
• Small business preservation
• Non-auto transportation
improvements
• Enhanced community benefits
• District-wide improvements
• Project phasing
• Impact on staff resources
• Quality of application materials
75
Development Management Overview
June 24, 2015
13
Figure 5 North Bayshore Precise Plan Bonus FAR Program
Source: City of Mountain View North Bayshore Precise Plan
FAR
Gateway
Character
Area1
Core
Character
Area2
General
Character
Area
Edge
Character
Area
Base FAR 1.0 0.45 0.45 0.45
Maximum FAR 2.35 1.5 1.0 0.65
Tier 1
Bonus FARUp to 0.50 Up to 0.30 Up to 0.30 Up to 0.20
Benefits
Public benefit or
district-improvement
project, focusing on
transportation
LEED Platinum or
alternative green
building standard;
public benefit or
district improvement
project focusing on
transportation
LEED Platinum or
alternative green
building standard;
public benefit or
district improvement
project focusing on
transportation
LEED Platinum or
alternative green
building standard;
public benefit or
district improvement
project focusing on
transportation
Tier 2
Bonus FAR Up to 0.50 Up to 0.25 Up to 0.25
Benefits
Higher-performing
green building; zero
net green building;
public benefit or
district improvement
Higher-performing
green building; zero
net green building;
public benefit or
district improvement
Higher-performing
green building; zero
net green building;
public benefit or
district improvement
Tier 3
Bonus FAR Up to 0.35 Up to 0.25
Benefits
Higher-performing
green building; zero
net green building;
public benefit or
district improvement
Higher-performing
green building; zero
net green building;
transfer of
development; public
benefit or district
improvement
Tier 4
Bonus FAR Up to 0.25
Benefits Transfer of
Development
(1) Applicants can only request one green building Bonus FAR above 1.5 FAR
(2) Applicants can only request one green building Bonus FAR above 0.75 FAR
76
Development Management Overview
June 24, 2015
14
the City created a competition for the limited amount of office development allocation in North
Bayshore. In response, applicants sought to propose desirable projects with significant
community benefits that would score well against the evaluation criteria.
When the submittals were in, the total square footage proposed far exceeded the cap on non-
residential development. As a first step in the Bonus FAR Review process, City staff preliminarily
evaluated each proposal based on the Precise Plan guidelines. Applicants providing sufficient
community benefits were approved to be included in the commercial allocation process
conducted by the City Council. Through the allocation process, the Council approved 1.4 million
square feet of LinkedIn’s requested 1.6 million square feet, 515,000 square feet of Google’s 2.5
million requested square feet (enough for one piece of its envisioned four-part campus), and the
full development requests from Broadreach Capital Partners and Rees Properties for smaller
projects. The City Council made the allocation decisions based on the criteria in the Bonus FAR
Review Guidelines. A particular community benefit noted by council, but not explicit in the
criteria, was the economic diversity that would be supported by the LinkedIn proposal (as
compared with a Google expansion, since that firm already is the top employer in the City). The
Council’s allocation decisions allow selected projects to move forward with formal development
plans for review and approval (i.e., allocations are not guarantees of project entitlement).
Plan Efficacy
Mountain View’s North Bayshore commercial allocation process resulted in a tremendous
response from private sector project proponents. Due to the competitive nature of the process,
applicants devised creative community benefit plans and offered extensive benefits, above what
likely would have offered outside of a competitive process. From an economic perspective, it is
notable that the competitive process allowed project proponents to make their own proposals
based on their willingness to pay (i.e., the market determined the value of community benefits
achievable).
While the North Bayshore community benefits strategy was highly beneficial for the City of
Mountain View, the success is attributable to a “perfect storm” of unique local market conditions
and a hot economy. In addition, the process was not without a cost. A City staff representative
indicates that the process was very burdensome because the pooling of applications created a
high volume of proposal review activity over a very brief time period. However, the staff member
also indicated that the process was “exciting” and the City is very pleased with the outcome.
While the City will continue to use the tiered Bonus FAR policy structure in future plan, it is
uncertain whether the success of the North Bayshore Bonus FAR Program in replicable.
77
Development Management Overview
June 24, 2015
15
Growth Allocation Programs
Growth management is a tool that has been used by California cities for over 40 years. Some
growth management ordinances are related directly to a lack of inadequate infrastructure, such
as limited sewer capacity, water constraints or school overcrowding, while others are adopted to
maintain quality of life, stemming from factors such as open space and low population density.
While growth management may be broadly used to refer to any tool a local government may
employ to manage growth, such as urban limit lines, general plan designations or zoning, this
section focuses on growth allocation systems that regulate the amount of development that can
take place in any given period of time, such as programs that adopt a housing cap or a
commercial square footage cap.
A number of cities in California have adopted growth allocation programs that include housing or
commercial caps. The City of Petaluma, the first city in California to adopt a residential growth
management system in the early 1970s, has a maximum annual allotment of units. In addition,
the City of Livermore has set a cap on residential units every three years, with numbers ranging
from 140 to 700 units. In these cities, development applications are reviewed on a first-come,
first-served basis.
Other cities have implemented growth allocation programs that operate as a “competition,”
whereby developers seek to obtain development allocations through an application process
conducted on a fixed schedule, typically once a year. Generally, applicants will be required to
obtain growth allocations in order to proceed with development. The City of Morgan Hill adopted
such an approach in 1977 through a citizens’ initiative. The program is still being implemented
and is described in more detail below. A few California cities have adopted competitive growth
allocation programs, which were later eliminated or suspended. For example, the City of
Brentwood implemented a competitive growth management program for residential projects (the
RGMP) for a number of years during its greatest periods of growth. The RGMP was suspended in
2011 due to the recession. Similarly, in 2005, the City of Ventura eliminated its development cap
and competitive process.
Cities that adopt programs with housing caps now have to comply with state regulations adopted
in 1980, which require an ordinance that limits the number of residential building permits
allowed to show that “such ordinance is necessary for the protection of the public health, safety,
or welfare of the populations of such city . . . .” (Evidence Code section 669.5.) In addition,
state law requires cities to adopt Housing Elements to provide for growth consistent with its
Regional Housing Needs Allocation (RHNA) requirements. Therefore, cities have greater
constraints than when growth allocation programs were originally adopted.
While the City of Cupertino currently sets city-wide development allocations over its General Plan
horizon, it does not currently have a competitive or metering process in place. To assist
Cupertino with evaluation of potential growth management approaches, the section below
reviews the City of Morgan Hill’s current growth management program.
City of Morgan Hill Case Study
The City of Morgan Hill’s Residential Development Control System (RDCS) relies on a competitive
process to issue allotments to developers who wish to build residential units in the City. The City
has used this system since 1977, prior to the implementation of the RHNA process by Housing
78
Development Management Overview
June 24, 2015
16
Element Law or the requirement for public health and safety findings when limiting residential
permits. The impetus of the RDCS was to address the impacts of intense growth at a time when
the infrastructure was not prepared to absorb the growth. During this period, population growth
in the City was impacting the ability of the City to provide sewage treatment, water and other
necessary municipal services. The RDCS was initially adopted by ballot measure and has been
modified through ballot measures over the years to meet the City’s needs and address
exemptions. The City has also adopted implementing ordinances and policies.
The competition is based on an evaluation system that utilizes a series of standards and criteria
set forth in the Morgan Hill Municipal Code. Morgan Hill’s General Plan describes the RDCS in the
following way, with allowances for small development projects:3
“This system shall provide for awards of development allotments based on the
number of points scored for all development proposals biennial competition, or
outside of a competition but based on requiring projects to achieve a minimum
point score . . . . The point scale used shall take into account the impact of the
proposed development on the following public facilities and services: water supply
system, sanitary sewer and treatment plant, drainage and runoff, fire and police
protection, traffic and other municipal services.
Proposed developments shall be awarded points for provision of schools, and
related facilities, open space, orderly and contiguous development, public
facilities, parks and trails, low-income and moderate income housing and housing
for the elderly, and diversity of housing types; and for quality of architectural
design and site design.
Small residential developments provide special benefits to the City by encouraging
local developers, providing design variety, and promoting utilization of smaller
lots. These developments do not impose as high a burden on municipal services
as do larger projects, because their demands are incremental and they tend to be
infill developments. Such small developments may be unable to compete with
larger developments in terms of the levels of amenities provided. In order to treat
small developments in a manner reflecting their benefits to the community, the
Residential Development Control System shall be designed to provide for small
development through appropriate means selected by the City Council, such as a
separate small project competition and a more streamlined and less costly
process.”
The process takes places on an annual or biennial basis and developers who wish to build
housing units are required to compete for the ability to obtain a development allocation. The
process begins by dividing projects into categories for purposes of the competition, including
“small” projects (7 to 15 units), multi-family housing, senior housing, and open market (more
than 15 units).
Each year, the City Council of Morgan Hill determines the total number of allotments available for
the next available competition, based upon a formula that calculates the number of units
3 Morgan Hill’s General Plan, http://www.morganhill.ca.gov/DocumentCenter/Home/View/1148
79
Development Management Overview
June 24, 2015
17
available in the population cap divided by the number of years left in the RDCS.4 The total
number of allotments is then divided into the competition categories. City staff then evaluates
projects according to a set of objective standards and criteria in 14 separate categories: (1)
schools; (2) open space; (3) orderly and contiguous; (4) public facilities; (5) parks and paths;
(6) housing needs; (7) housing types; (8) quality of construction; (9) lot layout and orientation;
(10) circulation efficiency; (11) safety and security; (12) landscaping; (13) natural and
environmental; and (14) livable communities. Morgan Hill’s Municipal Code provides the specifics
of the City’s point system, which grants the highest number of points for the categories of
schools, open space and housing types.
Morgan Hill’s Municipal Code has been amended to implement the RDCS originally adopted by
ballot measure. It sets forth specific and detailed guidelines for how points are earned in each
category. For example Section 18.78.210 sets forth the following standards and criteria for
obtaining points with respect to schools:
“18.78.210 - Schools.
A. The provision of school facilities and amenities as attested by agreement
with the Morgan Hill Unified School District (MHUSD) to the extent such
consideration is not in conflict with state law. (twenty-five points)
B. Standard and Criteria:
1. Sixteen points will be awarded for the payment of the district-adopted
developer fees as provided by the Leroy F. Greene School Facilities Act of 1998.
Full market value credit will be applied to a direct payment to the School District,
for donated land, construction, or other services provided by a developer or
project property owner that relate to provision of school facilities.
2. Up to six additional points may be awarded to a project where: At the time
of application submittal or applicant commits as part of the first year of the first
phase of the current application, a safe walking route exists or will be provided
between the project site and existing or planned MHUSD schools, or charter
school licensed by the MHUSD, the Santa Clara County Board of Education or the
State Department of Education. A safe route is defined as continuous sidewalks
and/or paved pedestrian pathways cross walks and traffic signals at designated
street intersections between the project and a school site.
. . . .
3. Up to six additional points may be awarded to a project which:
a. Provides off-site pedestrian safety improvements or traffic safety
improvements, including adjacent related roadway improvements near a MHUSD
school. Any proposed pedestrian and traffic safety improvements cannot be
redundant of improvements committed to in other categories. The cost of the
4 Growth Management, Morgan Hill 2035, Existing Conditions White Papers, City of Morgan Hill, May
16, 2013.
80
Development Management Overview
June 24, 2015
18
improvements must be valued at eight hundred twenty-five dollars per point per
unit. The pedestrian improvements and traffic safety improvements must be
made to an elementary school within three-quarters of a mile (straight line
distance) of the edge of project site or the same improvements can be made to a
middle or high school within the City's Urban Service Area (USA). (up to two
points for safety improvements in proximity to a school and up to four points for
safety improvements on roadways serving schools within the City's USA)
. . . .”
With respect to schools, applicants will receive more points if they agree to provide safe routes
to school or other pedestrian or traffic safety improvements. Because all projects are required to
pay development impact fees, the payment of these fees does not differentiate the applicant
pool. Other categories are treated similarly. Applicants receive more points if they provide a
greater number of desired improvements.
The Planning Commission then considers all projects that have submitted applications, typically
in one meeting, and projects with the highest number of points receive building allocations.
Thereafter, the project applicant is allowed to apply for the land use entitlements required to
proceed with the proposed project. All projects that receive RDCS allotments must enter into a
Development Agreement. There also is an appeals process to the City Council for those entities
who disagree with the Planning Commission’s determination.
Historically, Morgan Hill has received more requests for allotments than the City has available.
However, more recently, most projects have been able to receive allocations. In addition to the
time required to process requests for allocations, Morgan Hill also must continue to monitor the
projects to ensure compliance with the RDCS program.
While it appears that the RDCS has served Morgan Hill well, the administration has been time
intensive and has required a significant amount of staff time. Morgan Hill currently is in the
midst of its Morgan Hill 2035 project and is considering how to streamline and improve the
system “to be more efficient, effective, and sustainable while maintaining its most important
benefits: a population cap, pace of development; high quality development; and contribution
toward community amenities.”5
Benefits and Constraints
Growth allocation programs with a competitive process provide benefits to the public and ensure
a good pace of development. However, they are administratively burdensome as they require a
great deal of staff time to implement. Further, if proposed development is less than the annual
allocation, there will be less competition for required allocations and fewer points will be required
for a project to move forward. A complicated growth allocation system also may discourage
developers that are not familiar with the system or City processes from filing applications.
Where growth allocation programs set a cap on the number of residential units, they must be
consistent with a city’s Housing Element and also may draw more scrutiny if they are challenged
in court.
5 See City Council Staff Report, Morgan Hill 2035: RDCS Update, April 1, 2015.
81
Development Management Overview
June 24, 2015
19
Lastly, once the criteria and standards in the program are established, it may be difficult to
encourage flexibility and to respond to changing market conditions or City desires or trends. The
fact that a number of cities have either eliminated or suspended previously adopted growth
allocation programs and that Morgan Hill is looking at other approaches is indicative of the
inherent difficulties in implementing such a program.
Land Use Regulation
Growth and development have traditionally been regulated through land use designations and
zoning. Cities implement and control growth and development through their General Plans,
Specific Plans and zoning, and can address impacts of development through development impact
fees and city regulations, such as enhanced design review regulations.6 Cities also enter into
negotiated Development Agreements with developers, which allow for developers to obtain
vested rights and for the City to negotiate desired community amenities to address the impacts
of development.
In California, State Planning and Zoning Law allows the legislative bodies of cities and counties to
establish their own procedures for the processing of amendments to their General Plans. While
General Law cities, such as Cupertino, are limited to four (4) General Plan Amendments each
year, cities may dictate the method used to process/evaluate any such amendments.
In addition to reviewing projects for General Plan consistency and quality of life goals, cities can
also implement additional nexus fees (such as community facilities fees, transportation impact
fees, utility impact fees, etc.) and additional design review guidelines to address the impacts of
development.
Conclusions
The following is a summary of conclusions based on the review of the various Community Benefit
Incentive Zoning (CBIZ) models, Growth Allocation models, and the consideration of land use
regulation as a community benefit model:
1. Formulaic zoning incentive programs (e.g., City of San Diego Downtown Community Plan)
provide less discretion since the development incentives and community benefits are
predetermined and codified by zoning.
2. Discretionary zoning incentive programs (e.g., City of Berkeley Downtown Area Plan) require
protracted negotiation and discussion before the City can determine that a project applicant’s
offer of “substantial community benefits” warrants granting of a bonus in height or floor area
ratio. Also, the lack of specific criteria can lead to lack of transparency, difficulty in
administering the program and lack of consistency between projects. A discretionary CBIZ
program also would require updates to the City zoning code.
6 Although not located in the United States, the City of Vancouver, British Columbia, Canada, has
adopted a community benefits program that combines the city’s ability to rezone development sites
with community benefits. In Vancouver, developers are required to provide Community Amenity
Contributions (CACs) when the City Council grants development rights through rezoning. CACs are in-
kind or cash contributions that are used to fund community centers, libraries, parks and other
community spaces. Such a program, however, would not be workable under California law.
82
Development Management Overview
June 24, 2015
20
3. Metering residential development annually (e.g., Morgan Hill, Brentwood, Livermore) would
require changes to the recently adopted Housing Element and additional HCD review. The
City also would need to ensure that any metering program would still allow its housing
obligations to be met. Even if the process is implemented only for non-residential
development, the program provides less flexibility and is more cumbersome to administer.
Such a program would require a process that involves detailed criteria, scoring, and a specific
checklist of community benefits, as well as deadlines for processing and project construction.
4. A development cap or metering approach establishes a supply constraint, which may support
a competitive process. When market demand exceeds supply, projects would be required to
showcase community benefits in order to be considered for processing. The Mountain View
and Morgan Hill case studies offer good examples of this type of process. In both cities,
competition for project entitlements has generated substantial public benefits from new
development, but the programs are time and labor intensive for City Staff to implement and
the success of the competition is highly dependent on market conditions. In addition, these
processes introduce additional investment risk for development investors active in the
community due to increased uncertainty about project approval.
5. Growth allocation programs implement growth planned in the General Plan, and can achieve
community benefits. However, while these programs work well in years in which there are
projects competing for development, in years during which there are fewer projects the
community benefits offered in order to compete for allocations are not as significant.
6. Though no specific examples have been identified, a process that includes procedures for
projects that require General Plan Amendments can provide the most flexibility, because
development assumptions are not already built in and cities have discretion to amend their
General Plans, except with respect to legal requirements for Housing Elements. This
approach would provide the ability for the City to review a development proposal and
determine if it meets the goals and quality of life standards of the City, such as through the
provision of community amenities. If multiple proposals for general plan amendments are
submitted, based on the case studies examined here, it seems likely to increase the
community amenities offered by project proponents, particularly when economic conditions
are strong.
In considering its options to address growth, manage development, and respond to the
community concerns, Cupertino should consider implementing a program that achieves the
following:
• Ability to achieve goals of General Plan
• Ease of implementation
• Desire for flexibility as opposed to specific requirements (as in a General Plan or zoning)
• Ensure a diverse and vital economic base
• Ensure the City can meet its housing obligations
• Ability to achieve orderly development of the City through a managed process
• Ensure that additional development can achieve/improve facility, service and quality of life
standards for the community
83
1
PROCEDURES FOR PROCESSING
OF GENERAL PLAN AMENDMENT APPLICATIONS
Adopted by the City Council
_____________, 2015
1. Background/Goals
Like many communities throughout the State, Cupertino is concerned about balancing the
benefits of economic development with the effects of rapid growth. The impacts of such
growth can overwhelm the City’s ability to accommodate it and affect the quality of life in
the community.
The goal is to create a procedure for the consideration of future General Plan amendments
that will encourage orderly development of the City and ensure that facility/service and
quality of life standards can be met for the community. These procedures only address
amendments requested by private parties. The City may initiate General Plan amendments
when it deems necessary, such as, to conform to State law or to ensure consistency within
the General Plan.
2. Procedure
a. The Council will consider the timing and processing of General Plan amendments once
every year.
b. In order to be considered for processing, applicants would be required to apply for
authorization to process a General Plan amendment by a designated date each year.
c. In the quarter following the due date (generally), the Council will hold a publicly
noticed meeting to preliminarily review the list of proposed General Plan amendments.
d. Noticing – City-wide noticing and public meeting requirements.
e. Each application will be preliminarily evaluated for the following:
(i) General Plan goals achieved by the project including, but not limited to, the
following:
(1) Site and Architectural design and neighborhood compatibility
(2) Brief description of net fiscal impacts (sales tax, transit occupancy tax or other
revenue provided by the project) including a diverse economic base
(3) The provision of affordable housing
(4) Sustainability
(ii) List of General Plan amendments (and any other zoning amendments or
variances) requested.
(iii) A list of voluntary community amenities, as defined in Section 3, if any.
(iv) Staff time and resources required to process the project.
84
2
f. Based on the above evaluation the Council will consider which projects, if any, will be
authorized to proceed with a General Plan amendment application. The decision does
not in any way presume approval of the amendment or project. It only authorizes staff
to process the application, but the City retains its discretion to consider the application
in accordance with all applicable laws, including the California Environmental Quality
Act (“CEQA”) and the City’s zoning laws and ordinances. Consideration of the
application will be in accordance with the City’s Municipal Code and regulations.
g. Staff will begin processing the General Plan amendment applications per Council
direction. A project that applies for processing should be in substantial compliance with
the project authorized by Council.
h. Applicants whose proposals were not authorized for processing will have to apply for
the next cycle to be considered.
3. Voluntary Community Amenities. For purposes of this policy, voluntary community
amenities are defined as facilities, land and/or funding contributions to ensure that any
development with a General Plan amendment application enhances the quality of life in the
City.
a. School resources
b. Public open space, such as parks and trails.
c. Public facilities and utilities, such as library, community center or utility systems.
d. Transportation facilities with an emphasis on city-wide bicycle, pedestrian and transit
improvements, such as community shuttles, pedestrian and bicycle bridges, transit
center/stations, etc.).
4. Preliminary Review Requirements:
a. Preliminary documents that would be typically required for the type of application that
is requested, such as site plans, preliminary landscape plans, elevations, cross sections,
preliminary grading plans and proposed materials.
b. A description, including graphics, of the General Plan amendment(s) and land use
approvals required, if any. The description should include diagrammatic information as
necessary to clearly explain the request.
c. An explanation of how the proposed project meets the overall goals of the General Plan
and the benefits/impacts of the project to the community and its quality of life.
d. A brief summary of net fiscal impacts.
e. To the extent the proposed project includes voluntary community amenities of a type
typically memorialized in a development agreement, the applicant should include a
Term Sheet explaining the proposed terms. The Term Sheet will be memorialized in a
Development Agreement as part of the project, if approved.
85
General Plan Amendment (GPA) Process Comparison
Application Process *
CURRENT PROCESS
PROPOSED PROCESS
City Council Hearing
Final Decision on Project
Planning Commission
Hearing
Public Input
City Council
Meeting
X
XX
X
Application A authorized
for Processing
* Length of application review process depends on size and complexity of the project
Preliminary Submittal
Application A
City-wide Postcard
and Notification
Application Authorization
and Review
Application B Not Authorized
for Processing
(applicant may reapply next year)
Application C authorized
for Processing
Project and Environmental Review including
neighborhood and legal notifications, and public input.
Formal Submittal
Project Application A
Formal Submittal
Project Application B
Formal Submittal
Project Application C
Preliminary Submittal
Application B
Preliminary Submittal
Application C
Application Process *
City Council Hearing
Final Decision on Project
Planning Commission
Hearing
Project and Environmental Review including
neighborhood and legal notifications, and public input.
Application Process *
City Council Hearing
Final Decision on Project
Planning Commission
Hearing
Project and Environmental Review including
neighborhood and legal notifications, and public input.
Application Process *
City Council Hearing
Final Decision on Project
Planning Commission
Hearing
Project and Environmental Review including
neighborhood and legal notifications, and public input.
Formal Submittal
Project Application A
Formal Submittal
Project Application C
Application Process *
City Council Hearing
Final Decision on Project
Planning Commission
Hearing
Project and Environmental Review including
neighborhood and legal notifications, and public input.
Process for General Plan Amendment Applications
General Plan Amendment Process Comparison
Application Process
CURRENT PROCESS
PROPOSED PROCESS
Application B
Neighborhood
Notifications
Legal
Notifications
City Council Hearing
Final Decision on Project
Planning Commission
Hearing
Application Process
Project review
Environmental review
City Council Hearing
Final Decision on Project
Planning Commission
Hearing
Application C
Application Process
Environmental review
Application B
Application C
Public Input
City Council
Meeting
X
XX
X
Application Process
Application Process
Application A authorized
for Processing
Application A
Project review
Environmental review
Public Inpute
for CEQA
Neighborhood
Meetings
Legal
Notifications Public Inpute
for CEQA
Neighborhood
Notifications Neighborhood
Meetings
Application A City-wide Postcard
and Notification
Application Authorization
and Review
Legal
Notifications
Neighborhood
Meetings
Planning Commission
Hearing
Neighborhood
Notifications
Project review
Public Inpute
for CEQA
Application B Not Authorized
for Processing
(applicant may reapply next year)
Application C authorized
for Processing
Neighborhood
Notifications
Legal
Notifications Public Inpute
for CEQA
Neighborhood
Meetings
City Council Hearing
Final Decision on Project
Planning Commission
Hearing
Legal
Notifications
Neighborhood
Meetings
City Council Hearing
Final Decision on Project
Planning Commission
Hearing
Neighborhood
Notifications
Public Inpute
for CEQA
Project review
Environmental review
Project review
Environmental review
City Council Hearing
Final Decision on Project
Authorization to Proceed Process
General Plan Amendment Process Comparison
Application Process
CURRENT PROCESS
PROPOSED PROCESS
Application B
Neighborhood
Notifications
Legal
Notifications
City Council Hearing
Final Decision on Project
Planning Commission
Hearing
Application Process
Project review
Environmental review
City Council Hearing
Final Decision on Project
Planning Commission
Hearing
Application C
Application Process
Environmental review
Application B
Application C
Public Input
City Council
Meeting
X
XX
X
Application Process
Application Process
Application A authorized
for Processing
Application A
Project review
Environmental review
Public Inpute
for CEQA
Neighborhood
Meetings
Legal
Notifications Public Inpute
for CEQA
Neighborhood
Notifications Neighborhood
Meetings
Application A City-wide Postcard
and Notification
Application Authorization
and Review
Legal
Notifications
Neighborhood
Meetings
Planning Commission
Hearing
Neighborhood
Notifications
Project review
Public Inpute
for CEQA
Application B Not Authorized
for Processing
(applicant may reapply next year)
Application C authorized
for Processing
Neighborhood
Notifications
Legal
Notifications Public Inpute
for CEQA
Neighborhood
Meetings
City Council Hearing
Final Decision on Project
Planning Commission
Hearing
Legal
Notifications
Neighborhood
Meetings
City Council Hearing
Final Decision on Project
Planning Commission
Hearing
Neighborhood
Notifications
Public Inpute
for CEQA
Project review
Environmental review
Project review
Environmental review
City Council Hearing
Final Decision on Project
Authorization to Proceed Process
86
Proposed Procedures for GPA Applications
Year-long timeframe
Application 1A
Authorized for
Processing
Preliminary Submittal
Application 1A
Preliminary Submittal
Application 1B
Preliminary Submittal
Application 1C
X
X
X
X
Application 1D
Not Authorized for Processing.
Has to wait one biannual cycle
before applying
Application 1B
Authorized to
Submit Additional
Documentation
within 30 days
Preliminary Submittal
Application 1D
City Council
Meeting
City-wide Postcard,
Notification, Agenda
Posting, Web Notice, e-blast
Application
Review Application 1C
Authorized
to Submit Additional
Documentation
within 30 days
Deadline for First Biannual Cycle
X
X
X
X
Application 1C
Not Authorized
for Processing. Has to
wait one biannual cycle
before applying.
Application 1B
Authorized for
Processing
City Council
Meeting
Application 2D
Authorized for
Processing
Preliminary Submittal
Application 2A
Preliminary Submittal
Application 2B
Preliminary Submittal
Application 2C
X
X
X
X
Application 2A
Not Authorized for Processing.
Has to wait one biannual cycle
before applying
Application 2B
Authorized to
Submit Additional
Documentation
within 30 days
Preliminary Submittal
Application 2D
City Council
Meeting
Application
Review Application 2C
Authorized
to Submit Additional
Documentation
within 30 days
Deadline for Second Biannual Cycle
X
X
X
X
Application 2B
Not Authorized
for Processing. Has to
wait one biannual cycle
before applying
Application 2C
Authorized for
Processing
City Council
Meeting
City-wide Postcard,
Notification, Agenda
Posting, Web Notice, e-blastAgenda Posting, Web
Notice, e-blast
Agenda Posting, Web
Notice, e-blast
87
OAK #4852-1086-7494 v2
PROCEDURES FOR PROCESSING OF GENERAL PLAN AMENDMENT
APPLICATIONS – COMPARISON
Option
Pros
Cons
Annual
Review
Developers would only have one opportunity
in a year to present their projects, which may
result in stronger proposals since they would
be motivated to be selected.
Staff time on processing applications would be
limited to once per year.
Developers and City would have to
wait one year to present and consider
new projects after the initial review.
There would be no opportunity for
Developers to submit additional
information to City.
Twice per year
plus additional
review
There would be two opportunities for
Developers to present and the City to consider
new projects.
There would be two interim opportunities for
Developers to submit additional information.
The one-year hiatus on reapplications could
limit the dilution of proposals.
Developers may not present their best
proposals as they would have more
opportunities in a year which could
result in the dilution of their proposals.
Staff would need to work on
processing applications throughout the
year given the four possible review
and resubmittal times. Additional
staffing requirements need to be
considered.
88
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1041 Name:
Status:Type:Ordinances and Action Items Agenda Ready
File created:In control:8/18/2015 City Council
On agenda:Final action:9/1/2015
Title:Subject: Ordinance amending Cupertino Municipal Code Title 16 to add Chapter 28 to provide an
expedited streamlined permitting process for small residential rooftop systems as mandated by the
State of California, and City Manager authorization to adopt an electronic signature policy
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A - Draft Ordinance
Action ByDate Action ResultVer.
City Council9/1/20151
Subject:OrdinanceamendingCupertinoMunicipalCodeTitle16toaddChapter28toprovide
anexpeditedstreamlinedpermittingprocessforsmallresidentialrooftopsystemsasmandated
bytheStateofCalifornia,andCityManagerauthorizationtoadoptanelectronicsignature
policy
1.ConductthefirstreadingofOrdinanceNo.15-2133:"AnOrdinanceoftheCityCouncilof
theCityofCupertinoamendingCupertinoMunicipalCodeTitle16toaddChapter28to
provideanexpeditedstreamlinedpermittingprocessforsmallresidentialrooftopsystems";and
2.AuthorizetheCityManagertoadoptapolicytoaccepte-signaturesincompliancewithState
Law
CITY OF CUPERTINO Printed on 8/26/2015Page 1 of 1
powered by Legistar™89
1
COMMUNITY DEVELOPMENT DEPARTMENT
CITY HALL
10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3228 FAX: (408) 777-3333
CITY COUNCIL STAFF REPORT
September 1, 2015
Subject
Ordinance amending Cupertino Municipal Code Title 16 to add Chapter 28 to provide
an expedited streamlined permitting process for small residential rooftop systems as
mandated by the State of California, and City Manager authorization to adopt an
electronic signature policy
Recommended Action
1. Conduct the first reading of the draft ordinance: "An Ordinance of the City Council of
the City of Cupertino amending Cupertino Municipal Code Title 16 to add Chapter 28
to provide an expedited streamlined permitting process for small residential rooftop
systems"; and
2. Authorize the City Manager to adopt a policy to accept e-signatures in compliance
with State Law
Description
In September 2014, the State of California enacted Assembly Bill 2188 (AB 2188),
requiring cities to adopt an ordinance which establishes an expedited, streamlined
process for permitting small residential rooftop solar energy systems. This legislative
action revised two parts of the California Solar Rights Act; specifically, Civil Code
Section 714 and Government Code Section 65850.5, both relating to solar energy. The
City has previously taken many steps to streamline solar permitting, including over-
the-counter permits. However, AB 1288 requires amendments to the City’s Municipal
Code, including the requirement that the City accept electronic signatures, unless it can
demonstrate why it cannot do so. Staff recommends changes to City’s Municipal Code
and its policies in order to meet the specific requirements of AB 2188.
AB 2188 imposes a variety of new requirements on local agencies, including that the
City adopt an ordinance on or before September 30, 2015, which does the following:
Requires the Building Official to adopt a checklist of all requirements for a system to
be eligible for expedited review;
90
2
Streamlines approval of an application where the City determines that the
application is complete and meets all prescribed requirements;
Allows the use of electronic signatures on relevant permitting documents, unless the
City demonstrates it is unable to process them;
Allows for electronic submittal of the expedited permit application; and
Requires only a single inspection of the system for a permit, subject to certain
exceptions, that must be performed in a timely manner.
The City has independently taken many of the actions required in AB 2188. The City
currently expedites the review of such applications by reviewing and issuing
applications over-the-counter. For those projects that cannot be issued over-the-counter
permits, staff believes that the three day turnaround time as required by AB2188 can be
met. Additionally, the City is able to meet the requirements for one inspection for most
solar permits.
AB 2188 also requires the City to accept electronic signatures, unless the City
demonstrates it is unable to do so. In addition to this state mandate, electronic
signatures are also consistent with the City’s Green Programs, goals, and its
commitment to consuming less paper and producing less waste. This requires the City
to contract with a vendor to verify electronic signatures and to adopt a policy to accept
e-signatures in compliance with state law. As a result, staff proposing that the Council
authorize the City Manager to adopt a policy to accept e-signatures in compliance with
state law.
The City is currently in the process of amending the checklist to ensure that it meets the
requirements of the ordinance and anticipates having it in place when the ordinance
takes effect. Staff is in the process of researching and contracting with a vendor to
provide electronic signature verification. Additionally, the City Manager will adopt a
policy to accept e-signatures pursuant to City Council authorization.
Sustainability Impact
No sustainability impact.
Fiscal Impact
There is no anticipated additional fiscal impact related to operations as a result of
enacting the proposed ordinance. However, there may be additional cost related to
contracting with a vendor to verify electronic signatures as noted above.
Prepared by: Albert Salvador, Building Official
Reviewed by: Aarti Shrivastava, Assistant City Manager
91
3
Approved for Submission by: David Brandt, City Manager
Attachments:
A - Draft Ordinance
92
Council Agenda: September 1, 2015
Draft: August 18, 2015
ORDINANCE NO. 15-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AMENDING CUPERTINO MUNICIPAL CODE TITLE 16 TO ADD CHAPTER 28
TO PROVIDE AN EXPEDITED STREAMLINED PERMITTING PROCESS FOR
SMALL RESIDENTIAL ROOFTOP SYSTEMS
WHEREAS, the City Council of the City of Cupertino is committed to encourage the
use of solar energy through its Climate Action Plan and green building initiatives; and
WHEREAS, the Ordinance is determined to be exempt under provisions and
requirements of the California Environmental Quality Act of 1970, together with related
State CEQA Guidelines (collectively, "CEQA"), in that the amendments involve
procedural administrative changes that will not have a direct or reasonably foreseeable
indirect change to the physical environment; and
WHEREAS, the City Council of the City of Cupertino is the decision-making body for
this Ordinance; and
WHEREAS, the City Council has reviewed and considered the exemption
determination under CEQA prior to taking any approval actions on this Ordinance and
agrees with such exemption; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Title 16 of the Cupertino Municipal Code is hereby amended by adding a
Chapter 16.28 to be numbered and entitled and to read as follows:
CHAPTER 16.28 EXPEDITED PERMIT PROCESS FOR SMALL RESIDENTIAL
ROOFTOP SOLAR SYSTEMS
16.28.010 Purpose and Intent.
The purpose of this Ordinance is to adopt an expedited, streamlined solar permitting
process that complies with the Solar Rights Act and AB 2188 (Chapter 521, Statutes
2014) to achieve timely and cost-effective installations of small residential rooftop solar
93
Council Agenda: September 1, 2015
Draft: August 18, 2015
energy systems. The Ordinance encourages the use of solar systems by removing
unreasonable barriers, minimizing costs to property owners and the City, and
expanding the ability of property owners to install solar energy systems. The
Ordinance allows the City to achieve these goals while protecting the public health and
safety.
16.28.020 Definitions
For the purposes of this Chapter, the following words and phrases shall have the
meanings as defined in this section.
a. A “Solar Energy System” means either of the following:
i. Any solar collector or other solar energy device whose primary
purpose is to provide for the collection, storage, and distribution of
solar energy for space heating, space cooling, electric generation, or
water heating.
ii. Any structural design feature of a building, whose primary purpose is
to provide for the collection, storage, and distribution of solar energy
for electricity generation, space heating or cooling, or for water
heating.
b. A “small residential rooftop solar energy system” means all of the following:
i. A solar energy system that is no larger than 10 kilowatts alternating
current nameplate rating or 30 kilowatts thermal.
ii. A solar energy system that conforms to all applicable state fire,
structural, electrical, and other building codes as adopted or amended
by the City and all state and local health and safety standards.
iii. A solar energy system that is installed on a single or duplex family
dwelling.
iv. A solar panel or module array that does not exceed the maximum legal
building height as defined by the City.
c. “Electronic submittal” means the utilization of one or more of the following:
i. Email;
ii. The Internet;
iii. Facsimile.
94
Council Agenda: September 1, 2015
Draft: August 18, 2015
d. An “association” means a nonprofit corporation or unincorporated
association created for the purpose of managing a common interest
development.
e. A “common interest development” means any of the following:
i. A community apartment project.
ii. A condominium project.
iii. A planned development.
iv. A stock cooperative.
f. “Specific, adverse impact” means a significant, quantifiable, direct, and
unavoidable impact, based on objective, identified, and written public health
or safety standards, policies, or conditions as they existed on the date the
application was deemed complete.
g. “Reasonable restrictions” on a solar energy system are those restrictions that
do not significantly increase the cost of the system or significantly decrease its
efficiency or specified performance, or that allow for an alternative system of
comparable cost, efficiency, and energy conservation benefits.
h. “Restrictions that do not significantly increase the cost of the system or
decrease its efficiency or specified performance” means:
i. For Water Heater Systems or Solar Swimming Pool Heating Systems:
an amount exceeding 10 percent of the cost of the system, but in no
case more than one thousand dollars ($1,000), or decreasing the
efficiency of the solar energy system by an amount exceeding 10
percent, as originally specified and proposed.
ii. For Photovoltaic Systems: an amount not to exceed one thousand
dollars ($1,000) over the system cost as originally specified and
proposed, or a decrease in system efficiency of an amount exceeding 10
percent as originally specified and proposed.
16.28.030 Applicability
a. This Ordinance applies to the permitting of all small residential rooftop solar
energy systems in the City.
b. Small residential rooftop solar energy systems legally established or
permitted prior to the effective date of this Ordinance are not subject to the
95
Council Agenda: September 1, 2015
Draft: August 18, 2015
requirements of this Ordinance unless physical modifications or alterations
are undertaken that materially change the size, type, or components of a
small rooftop energy system in such a way as to require new permitting.
Routine operation and maintenance or like-kind replacements shall not
require a permit.
16.28.040 Solar Energy System Requirements
a. All solar energy systems shall meet applicable health and safety standards
and requirements imposed by the state, the City, and Santa Clara County Fire
Department.
b. Solar energy systems for heating water in single-family residences and for
heating water in commercial or swimming pool applications shall be certified
by an accredited listing agency as defined by the California Plumbing and
Mechanical Code.
c. Solar energy systems for producing electricity shall meet all applicable safety
and performance standards established by the California Electrical Code, the
Institute of Electrical and Electronics Engineers, and accredited testing
laboratories such as Underwriters Laboratories and, where applicable, rules
of the Public Utilities Commission regarding safety and reliability.
16.28.050 Application and Documents
a. All documents required for the submission of an expedited solar energy
system application shall be made available on the City’s website.
b. Electronic submittal of the required permit application and documents shall
be made available to all small residential rooftop solar energy system permit
applicants.
c. An applicant’s electronic signature shall be accepted on all forms,
applications, and other documents in lieu of a wet signature.
d. The City’s Building Department shall adopt a standard plan and checklist of
all requirements with which small residential rooftop solar energy systems
shall comply to be eligible for expedited review.
e. The small residential rooftop solar system permit process, standard plan(s),
and checklist(s) shall substantially conform to recommendations for
expedited permitting, including the checklist and standard plans contained in
96
Council Agenda: September 1, 2015
Draft: August 18, 2015
the most current version of the California Solar Permitting Guidebook adopted
by the Governor’s Office of Planning and Research.
f. All fees prescribed for the permitting of small residential rooftop solar energy
system must comply with Government Code Section 65850.55, Government
Code Section 66015, Government Code Section 66016, and State Health and
Safety Code Section 17951.
16.28.060 Permit Review and Inspection Requirements.
a. The City shall adopt an administrative, nondiscretionary review process to
expedite approval of small residential rooftop solar energy systems. Upon
receipt of a complete application which meets the requirements of the
approved checklist and standard plan, the City shall issue a building permit
or other nondiscretionary permit on the same day for over-the-counter
applications or within 3 business days for electronic applications. The
building official may require an applicant to apply for a use permit if the
official finds, based on substantial evidence, that the solar energy system
could have a specific, adverse impact upon the public health and safety.
b. Review of the application shall be limited to the building official’s review of
whether the application meets local, state, and federal health and safety
requirements.
c. If a use permit is required, a building official may deny an application for the
use permit if the official makes written findings based upon substantive
evidence in the record that:
1. The proposed installation would have a specific, adverse
impact upon public health or safety; and
2. There is no feasible method to satisfactorily mitigate or avoid, as
defined, the adverse impact. Such findings shall include the
basis for the rejection of the potential feasible alternative for
preventing the adverse impact.
d. Decisions to require a use permit or to deny a use permit may be appealed by
filing a request for appeal, in writing, with a description of the grounds for
appeal. The request for appeal must be made within ten (10) business days of
the serving or mailing of the building official’s determination. A hearing
shall be scheduled within thirty (30) days before the Board of Appeals as
defined in Cupertino Municipal Code Section 16.02.270. If the appeal is not
filed within the time specified above, the applicant shall be deemed to waive
the right to appeal.
97
Council Agenda: September 1, 2015
Draft: August 18, 2015
e. Any condition imposed on an application shall be designed to mitigate the
specific, adverse impact upon health and safety at the lowest possible cost.
f. “A feasible method to satisfactorily mitigate or avoid the specific, adverse
impact” includes, but is not limited to, any cost-effective method, condition,
or mitigation imposed by the City on another similarly situated application in
a prior successful application for a permit. The City shall use its best efforts
to ensure that the selected method, condition, or mitigation meets the
conditions of subparagraphs (A) and (B) of paragraph (1) of subdivision (d) of
Section 714 of the Civil Code defining restrictions that do not significantly
increase the cost of the system or decrease its efficiency or specified
performance.
g. Approval of an application shall not be conditioned upon the approval of an
association, as defined in Section 4080 of the Civil Code.
h. If an application is deemed incomplete, a written correction notice detailing
all deficiencies in the application and any additional information or
documentation required to be eligible for expedited permit issuance shall be
sent to the applicant for resubmission.
i. The City shall require only one inspection for small residential rooftop solar
energy systems eligible for expedited review. A separate fire inspection may
be performed if the City does not have an agreement with the local fire
authority to perform safety inspections on behalf of the fire authority.
j. The inspection shall be done in a timely manner and should include
consolidated inspections. An inspection will be scheduled within two (2)
business days of a request and provide a two-hour inspection window on the
day of the inspection.
k. If a small residential rooftop solar energy system fails inspection, a
subsequent inspection is authorized but need not conform to the
requirements of this Ordinance.
SECTION 2. The City Clerk shall certify the adoption of this Ordinance and shall
give notice of its adoption as required by law. Pursuant to Government Code Section
36933, a summary of this Ordinance may be published and posted in lieu of publication
and posting of the entire text.
* * * * * * * *
INTRODUCED at a regular meeting of the City Council of the City of Cupertino the ___
day of ____ and ENACTED at a regular meeting of the City Council of the City of
Cupertino the ____ of _______ 2016, by the following vote:
98
Council Agenda: September 1, 2015
Draft: August 18, 2015
PASSED:
Vote: Members of the City Council
Ayes:
Noes:
Absent:
Abstain:
ATTEST: APPROVED:
______________________ ______________________
Grace Schmidt, City Clerk Rod G. Sinks, Mayor
99
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-0740 Name:
Status:Type:Reports by Council and Staff Agenda Ready
File created:In control:2/24/2015 City Council
On agenda:Final action:9/1/2015
Title:Subject: Report on Committee assignments and general comments
Sponsors:
Indexes:
Code sections:
Attachments:
Action ByDate Action ResultVer.
City Council9/1/20151
Subject: Report on Committee assignments and general comments
Report on Committee assignments and general comments
CITY OF CUPERTINO Printed on 8/26/2015Page 1 of 1
powered by Legistar™100