Loading...
CC 03-10-04 CITY OF CUPEIQ1NO APPROVED MINUTES CUPERTINO CITY COUNCIL Special Meeting 10300 Torre Avenue, Cupertino Wednesday, March 10,2004 ROLL CALL At 5:20 p.m. Mayor James called the meeting to order in the Council Chambers, 10300 Torre Avenue, Cupertino, California, and led the Pledge of Allegiance. City Council members present: Mayor Sandra James, Vice-Mayor Patrick Kwok, and Council members Richard Lowenthal, Dolly Sandoval, and Kris Wang. Council members absent: none. Staff present: City Manager David Knapp, Administrative Services Director Carol Atwood, City Attorney Charles Kilian, Community Development Director Steve Piasecki, and City Clerk Kimberly Smith. ORAL COMMUNICATIONS - None CLOSED SESSION I. Initiating litigation - Government Code Section 54956.9(c). Possible action against Edward Britt, Norman Hackford, and Gerald Cooley related to Initiative measures (building height, density, and setbacks). Gerry Cooley, Castine Ave., said that he is one of the proponents of the Initiatives and was surprised to hear about the possible litigation from the City. He said the Initiatives and the organization bringing them, the Concerned Citizens of Cupertino (CCC), are democratic. He said the City Council should never consider litigation on an item like this. Larry Enoksen, Obsidian Ct., said that when an Initiative is brought before the people of the community, it shouldn't be an issue of litigation unless the item is an illegal item. He said that based on his own research, this does not appear to be a case of illegality, but instead it addresses the concerns of the community by a group. He asked the Council to take that into consideration. E.J. Conens, Pineville Ave., said that today's Cupertino Courier reported that litigation is being brought against the CCC. He said that he feels like the Council is trying to pick on the democratic system, and that he understood that the CCC is following procedures according to law. He said that the Council should consider that the group is legal and the Initiatives are proper. March 10,2004 Cupertino City Council Page 2 Joanne Tong, McClellan Rd., said that she had been teaching her students at school about patriotism, the Declaration of Independence, and freedom of speech. She said she was appalled to see an Initiative measure create possible litigation action against the proponents. She urged Council to consider that these are the voices of the residents of Cupertino and that Council was elected to hear the citizen's voices, not to file suit against them. Ned Britt, Pepper Tree Lane, said that he is one of the possible defendants in the possible litigation. He said that his group put forth the Initiatives not to follow an agenda of no- growth, but rather one of sensible growth. He said that CCC is trying to establish growth, particularly of retail, that will improve the quality of life in Cupertino and not tax the facilities, schools, or traffic. He said that the Initiatives would not rule out or curtail anything, but would only establish guidelines as standards, and if a project were outside those boundaries, it just would need to be voted upon and approved if it has merit. He said that having guidelines would actually empower the Council because most people wanting to start projects are outside the City and may have their own agenda. He re- emphasized that the group is open to negotiation or to participate in a study session to discuss the issues. He said they would agree to amend the Initiatives if some sort of mutual agreement was reached. Patricia Smith read a quote by Mr. Bush, Regis Development, which was in the Cupertino Courier regarding the Oaks Shopping Center project, and said that this was a symptom of the problem: "The most ITustrating part was that the City Council and the Planning Commission gave the developer a green light to put housing at the Oaks at their first meeting." She said that the residents' concerns should be at the top of Council's priority list, and that said that Council should look at the Initiative constructively and ITom the citizens' point of view. Virginia Tamblyn, Bixby Dr., said that the CCC wouldn't exist if Council had been responsive to them and met their needs. She said the group is working for the welfare of the community and she found it surprising that Council wants to have a potential lawsuit against three members of the group, rather than against the whole group. Harris Au, Noel Ave., said he was strongly against the notion of litigation. He said that Cupertino has been overbuilt and the quality of traffic, safety, schools, and beauty of Cupertino has been degraded. He said that the Oaks Shopping Center proposal would have turned it into a high-density residential area. He also said the Initiatives would control height, density, and setback, and would help to safeguard the City and control growth in the years to come. He said the Initiatives would conserve the energy and resources of the citizens and City Council and would help them to make difficult decisions. He asked Council to speed up the Initiatives rather than delaying them. Peg Goodrich, said that, as a mediator, she believed the surest way to start a war and not solve a problem was the threat oflitigation, and the best way to avoid it was for all parties to sit down at the same table and find, through mutual exploration, mutual goals and March 10, 2004 Cupertino City Council Page 3 common ground. She said that the Initiatives intend to accomplish the goal of making Cupertino even more prosperous and vibrant, but everyone must work together. Dennis Whittaker asked City Attorney Charles Kilian what a "slap suit" is. He said that he would like additional study sessions with Council and the proponents of the Initiative. He said his name would have also been on the Initiative, but only three names were allowed. Dave Dineli, Stokes Ave., said that he was amazed that law-abiding citizens could be subject to suit for attempting to bring an Initiative before the voters. He said that the Initiatives should be left to the voters. Robert Garten, Dexter Dr., said that his name would also have been on the Initiative. He said that he was appalled that Council would litigation against the proponents. He said that the three citizens represent many more like-minded citizens, and so the litigation should be considered as against the greater population of Cupertino. Garten said there was no basis for the litigation action and it was only an attempt to intimidate the group and hope it will go away. He said the Initiatives provide for standards for the growth of Cupertino according what the citizens will determine by vote. He said City officials are being asked to trust the citizens of the City to determine its own future through the democratic process. Garten said that this action would be viewed by many citizens as usurping their right to participate in determining the future direction of the City, and he asked the Council to allow the citizens of Cupertino to determine what is best for the City. The City Attorney stated that this meeting was called not at the request of any Council member, but was done at his request so that he could meet with his clients, the Council, to discuss their legal rights, just as the proponents met with their lawyer. He explained that the closed session wording on the agenda specifies possible defendants because that is what is required under the Brown Act in order that the Council and the attorney can meet in closed session. He said that he wished to make it clear for the record that the Council will be meeting to discuss various options regarding the legal validity of these measures, which may involve litigation, but it does not necessarily mean that the council will commence litigation. Mayor James clarified that the law requires that all Council discussions be done in public, except for legal issues and personnel issues, and law prescribes those very finitely. She said she understood how people could have interpreted the wording to mean that the City was planning to sue these three individuals, but that was not the intent. She agreed with a previous speaker that this process is about democracy, and she said that the City Council has the responsibility of representing all 52,200 plus who live in Cupertino. She said that any Initiative will have consequences, both intended and unintended, and Council's job is to identify those and inform the citizens, taxpayers, residents, and the businesses regarding potential litigation. She further clarified that if the City is sued because of one these Initiatives, ultimately that cost will be paid by taxpayers. She said that the City Council has not yet had an opportunity to discuss the Initiatives, but would be meeting March 10,2004 Cupertino City Council Page 4 with the City Attorney to receive legal advice, and the City Council would consider this matter very seriously. At 5:45 p.m. Council recessed to a closed session. At 6:55 p.m., Council reconvened in the City Council chambers. The City Attorney announced that City Council had met in closed session regarding possibly initiating litigation pursuant to Government Code Section 54956.9 (c). He said that the City Council took the following action: A. B. c. The Council decided not to proceed with litigation at this time against the defendants of the Initiative. The Council reserved the right to initiate litigation should the measure be determined to be invalid at some point in the future. Although the City Council had been invited to meet specially with the proponents, Council has elected not to do so, and has stated that the proper venue for discussions of all of these issues is in the ongoing General Plan hearings. The next hearing is scheduled for March 15, and all proponents or opponents of the measure(s) are welcome to speak with the Council at that time. D. The Council directed the City Manager, pursuant to Section 9212 of the Elections Code, to order a report by an independent expert in the field on the issues listed in Section 9212. The report would analyze the effects of the Initiative should it become law, and offer recommendations as to how the Council can comply with all laws, should the measure(s) be passed. The Council members made the following statements for the record: Council member Sandoval said, "I want to underscore a point that the City Attorney made, which is that the Council feels that we have an ongoing process for discussion currently, and that is our current process of the General Plan review. I feel very, very strongly that we have had a number of community members put time and energy into this General Plan review, as well as our staff, and I feel that, speaking specifically to the group supporting the Initiatives, it's detrimental to the action of our General Plan review process. I think we have a legitimate process. It's one that everyone agreed to initially, and we had buy-in from the community. In fact, we changed our original process to make our General Plan committee larger than we originally thought so that we could have more community input. It appalls me that on our meeting of March 8 we had several members who had signed on to these three Initiatives come forward and say that they went into the General Plan review process with an open mind. I think that's absolutely incorrect. I think that they outright lied to us, and lied to the community by stating that, because they couldn't have come in with an open mind and yet earlier that afternoon have Initiatives to give to our City Attorney that absolutely goes against the work of the General Plan review committee. I felt so strongly about that that I wanted these words reflected in the minutes tonight." March 10, 2004 Cupertino City Council Page 5 Council member Kwok said, " I am sorry to see the group taking some Initiatives to go forth with the proposed ballot in the fall, but this is a democratic process and you have the legal right to do so. Understandably, the Council represents 50,000 of our population in Cupertino, and that's only a small population that actually put in the Initiatives. I am equally disappointed that such Initiative is actually being brought forward while the General Plan amendment is ongoing and in full gear. As you recall, about 6 or 7 months ago the Council decided to empower the task force to come up with some recommendations, and we followed that path, and then the task force came back with the recommendations. I suggested, and Council concurred, that we are using the report ITom the General Plan Task Force as a framework to work on the General Plan amendment, and surprisingly the Initiative came forth regardless that the General Plan amendment is ongoing. I believe that we could address more in the General Plan amendment in a dialogue with the people in that respect, but at the same time, I also recognize there will be some unintended consequences as a result of the Initiative. I think Council is very strong in protecting or in caring for the wishes of the 52,000 people we represent. I strongly support our attorney's recommendations to move forward in this regard." Kwok added that he thinks the City could address more of the Initiatives in the General Plan amendment and open a dialogue with the people in that aspect. Council member Wang said, "I fully agree with Dolly and Patrick on their comments. There is just one more thing to add, to remind our community that the General Plan Task Force is well represented. It was selected from all the sectors from the community and it has Council fully supporting it, and I want to encourage everybody to come forward and join the study session, and that is what we're going to work on with Council support." Council member Lowenthal said, " I don't really have much new to add to this. I believe in the General Plan process that's going on now. We have hearings, we have people with different viewpoints that represent retail, represent housing, represent our residents. We have expert advice, we have Planning Commission hearings, we have staff advice, and frankly I think we should allow that process to play out. I think it's going fine, and I think we're hearing lots of divergent views. I think it's very healthy for the Council to hear it, and if you contrast it to the Initiative process, where it's sort of a "take it or leave it", "this is what we want" kind ofthing, with no hearing process, no way of negotiating with other representatives of our community, I think it's wrong. I think it's wrong to let a few authors of an Initiative bypass this good process that we started and we haven't let it play out. We need to let it play out. It's ridiculous to start something up. Some people are frustrated with it, I suppose, so they want to go around it, but I think we should let it play out, and have those hearings, having public hearings, get everybody to speak for and against, and negotiating parts of our new General Plan, and not try to do it with the language that a few people have crafted here with the help of a lawyer. It's just not the way to go, we ought to let the people help us form the General Plan update. So I'm in compJete agreement with what's been said already." Mayor James said, "I think that the Council is very united on this issue. Yes, the Initiative process is a democratic process. I agree that it's unfortunate that this particular group has not stayed within the General Plan Task Force and process that's been going March 10, 2004 Cupertino City Council Page 6 very well. In fact, the General Plan Task Force isn't the only group that's going to be giving us input on the General Plan. I mean, it has months to go yet. We have a Community Congress, we have a survey going out, we have numerous ways to communicate with the community and for everybody to give input on the direction this city should be taking over the next 10 years. I think it's also very unfortunate that we've been put in a position to have to spend the money on a very important study, which we really have no choice but to do if we are going to be able to provide the community we represent with all the information they need to make an intelligent decision. It is about $100,000 that we don't need to be spending right now, so that's unfortunate. And then if this Initiative goes to an election, it's going to be between $70,000 and $270,000. At the time that the budget is in a crisis situation, we've also been put in a position where we, in order to do our job to the best of our ability, are having to spend monies that are better spent elsewhere. However, that's our job, that's what we're going to do, we're going to see the General Plan Task Force through. We will not be meeting separately with the particular group because there are all kinds of Brown Act implications there, as well as really cutting out the rest of the community ITom that discussion. I think we all agree with that. So we'll be doing a study, and we will be discussing this on an ongoing basis, and doing the best we can to represent the whole community as we move forward on the Initiative process." ADJOURNMENT At 7:07 p.m. the City Council adjourned to Monday, March 15 at 5:00 p.m. for a joint study session with the Planning Commission to consider recommendations from the General Plan Task Force. The meeting will be held in the Council Chambers, City Hall, 10300 Torre Avenue. (This is a continuation ofajoint study session of March I and March 2,2004). For more information: Staffreports, backup materials, and any items distributed at the 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/ City Council! Packets. This meeting was not televised. However, most Council meetings are shown live on Cable Channel 26, and are available at your convenience from our web site. Visit www.cupertino.org and click on Watch Meetings. Videotapes are available at the Cupertino Library, or may be purchased ITom the Cupertino City Channel, 777-2364.