Exhibit CC 04-05-2016 Special meeting following regular meeting Item No. 1 Letters e
CC 4/5/16 Special meeting following
regular meeting Item#1
SHUTE MIHALY
- WEINBERGERII !,
396 HAYES STREET, SAN FRANCISCO, CA 94102 AMY J. BRICKER
T: (415) 552-7272 F: (415) 552-5816 Attorney
www.smwlaw.com bricker@smwlaw.com
April 5, 2016
Via E-Mail
Stuart M. Flashman
5626 Ocean View Drive
Oakland, CA 94618-1533
E-Mail: stu@stuflash.com
Re: Ballot question for CCSG Initiative
Dear Mr. Flashman:
As you may know, this firm serves as outside counsel to the City of
Cupertino ("City"). At the request of the City Attorney's Office on behalf of the City,
this letter responds to the assertions in your letter dated April 5, 2016, made on behalf of
your clients the Cupertino Residents for Sensible Zoning Action Committee (the
proponents of the Cupertino Citizens' Sensible Growth Initiative), regarding the ballot
question for the Initiative. We request that you provide a copy of this letter directly to
your client.
Your letter asserts that the 9212 Report for the Initiative incorrectly asserts
that City"Neighborhoods" are not"Special Areas" pursuant to the General Plan. You
further assert that, because "Neighborhoods" are allegedly"Special Areas," the Initiative
does not increase the height limits for Neighborhoods from 30 to 45 feet, as asserted in
the 9212 Report. You claim your position is supported by Figure LU-1, which lists
"Neighborhoods" under the heading "Special Areas." This is incorrect and ignores the
clear text of the General Plan.
The legend for LU-1 begins with"Special Areas," which are clearly
delineated by solid color boxes. These boxes correlate to the larger boxes on the left-
hand side of Figure LU-1, which each end with the term"Special Area." The legend then
goes on to identify other areas, such as "Neighborhoods" (designated in white on the
diagram) and "Hillside Transition" (designated by grey striping in the diagram). Nothing
in Figure LU-1, including the legend, designates "Neighborhoods" as "Special Areas."
•
Stuart M. Flashman
April 5, 2016
Page 2
Furthermore, even if the legend could be interpreted as placing a
"Neighborhood" in the same column as a"Special Area," when viewing Figure LU-1 in
context with the remainder of the General Plan, there is no question that a
"Neighborhood" is not a"Special Area." Indeed, there is an entire chapter of the General
Plan that explains the differences between the Special Areas and the Neighborhoods. The
General Plan, Chapter 2 divides the City into Special Areas and Neighborhoods. The
General Plan expressly states that it:
... organizes the city into 21 distinct Planning Areas, divided into
two categories:
1. Special Areas that are expected to transition over the life of the
General Plan and
2.Neighborhoods where future changes are expected to be
minimal[.]
(Emphasis added, General Plan at PA-3.)
Chapter 2 further discusses the "Special Areas" as separate and distinct from the
"Neighborhoods". For your reference, the Special Area discussion starts at page PA—4,
and runs through PA-17. The Neighborhoods discussion starts at PA-18 and runs through
PA-42. Furthermore, Figure PA-1 clearly delineates the City's "Special Areas."
(General Plan at PA-5.) These "Special Areas" are the same as the "Special Areas"
identified by solid colors in Figure LU-1. Figure PA-2 then identifies the
"Neighborhoods." (General Plan at PA-19.)
There is simply no question that a"Special Area" designation under the General
Plan is entirely separate from a"Neighborhood" designation. See Las Virgenes
Homeowners Federation, Inc. v. County of Los Angeles (1986) 177 Cal.App.3d 300
("The mere examination of. . . policy maps is insufficient to determine consistency.")
Therefore, even if Figure LU-1 could be read as labeling"Neighborhoods" in the same
category as "Special Areas," the more detailed language included within Chapter 2 of the
General Plan dictates that "Neighborhoods" are not"Special Areas." Id. Numerous
other cases are in accord. See, e.g., No Oil, Inc. v. City of Los Angeles (1987) 196
Cal.App.3d 223, 244, 247-49 (general plan's more general prohibition on"industrial"
uses had to be read in the context of the plan's express allowance of extractive activities
within the open-space land-use designation);Friends of Lagoon Valley v. City of
Vacaville (2007) 154 Cal.App.4th 807, 823 (holding that city officials had"discretion to
SHUTE MIHALY
C5 -WEINBERGERLLP
Stuart M. Flashman
April 5, 2016
Page 3
diverge from the details of the [Land Use] Map, so long as the variation serve[d] the
plan's policies and objectives as well or better").
In sum, the plain text of the General Plan diagrams, including Figure LU-1,
treat Neighborhoods as distinct from Special Areas. Furthermore, when the General Plan
is read as a whole, there is no reasonable interpretation that a"Neighborhood" is a
"Special Area." Thus, because the Initiative provides that"[o]utside of the Special Areas
shown in Figure LU-1, building heights may not exceed 45 feet," the Initiative would
increase maximum building heights in Neighborhoods from 30 feet to 45 feet.
Very truly yours,
SHUTE, MIHALY& WEINBERGER LLP
Amy J. Bricker
772852.2
SHUTE, MIHALY
L'�
-WEINBERGER Lip
CC 1-45)/Ce 1-1-etr No. I
Law Offices of
Stuart M.Flashman
5626 Ocean View Drive
Oakland,CA 94618-1533
(510)652-5373(voice&FAX)
e-mail: stu@stuflash.com
Delivery via electronic mail
April 5. 2016
Hon. Barry Chang, Mayor, and
Cupertino City Council
Cupertino City Hall
10300 Torre Ave.
Cupertino, CA 95014
Re: Ballot question for CCSG Initiative.
Dear Mayor Chang and Council Members,
I am writing to you on behalf of my clients, the Cupertino Residents for Sensible
Zoning Action Committee and the proponents of the Cupertino Citizens' Sensible
Growth Initiative, in regard to tonight's special city council meeting and its sole agenda
item, a proposal to modify the ballot question for the Cupertino Citizens Sensible
Growth Initiative (CCSGI). The meeting has apparently been set to respond to a letter
the City received from an attorney representing the backers of a counter-initiative
(primarily Vallco Property Owner, LLC [AKA San Hill Property Company]) asserting that
the City's previously-approved ballot language is inaccurate and must be corrected. My
clients agree with the developer's attorney that the previously approved language is
inaccurate, but not about the nature of the inaccuracy.
The developer's attorney relies on the report prepared for the City under
Elections Code §9212 as showing that the height limit in the City's Neighborhoods
would be increased by the CCSGI. However, that report itself was inaccurate because
it ignored the fact that in October of 2015 the City Council revised and amended the
general plan. In particular, the October 2015 General Plan Amendment revised Figure
LU-1, the Community Form Diagram, and that revised diagram is specifically and
explicitly included in the CCSGI at page 6. A copy of that revised figure is attached to
this letter as Exhibit A. The revised diagram, like that included in the December 2014
general plan revisions, identifies the various "Special Areas" within the City and
identifies key land use standards for those areas. At the lower right corner of the
diagram, the diagram legend, like that in the December 2014 General Plan, lists the
various Special Areas and shows how they are designated in the diagram. However,
the October 2015 General Plan Amendment added, at the bottom of that list (which has
the heading "Special Areas"), "Neighborhoods" with a block next to it showing that this
Special Area is indicated on the diagram in white. The October 2015 General Plan
Amendment also added a box at the bottom of Figure LU-1 that identifies a maximum
density (15 units per acre) and a maximum height (30 feet) for the Neighborhoods
Special Area.
The developer's attorney's letter, and the §9212 report on which it is based,
assume that the Neighborhoods are not a Special Area, and are therefore covered by
the CCSGI's policy that, "Outside of the Special Areas shown in Figure LU-1, building
heights may not exceed 45 feet." However, as noted, the Neighborhoods are explicitly
shown in Figure LU-1 as a Special Area. Therefore, the quoted policy does not apply to
the Neighborhoods. In fact, the CCSGI explicitly says, in Policy LU-3.0: Community
Form that, "The maximum heights and densities for the Special Areas shown in the
Community Form Diagram (Figure LU-1) shall not be exceeded."
Hon. Mayor Chang and City Council - Ballot Question for CCSG Initiative
April 5, 2016
Page 2
Since Figure LU-1 shows the maximum height in the Neighborhoods as 30 feet
and the maximum density as fifteen units per acre, those limits are re-enacted by the
CCSGI. The City's proposed ballot question must therefore be modified accordingly.
My clients also believe that the Elections Code §9212 Report prepared for the City
should also be revised to properly reflect the changes that the City Council made to the
General Plan in October 2015. A suggested revised ballot question (in both clean and
redline form) is attached to this letter as Exhibit B.
Most sincerely
Stuart M. Flashman
Attachments:
October 2015 version of General Plan Figure LU-1 — Community Form Diagram
Proposed Revised Ballot Question
cc: City Manager
City Attorney
•
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Exhibit B
Shall an initiative ordinance be adopted amending
Cupertino's General Plan to limit redevelopment of the
Vallco Shopping District, limit building heights along major
mixed-use corridors,establish a 15 feet maximum building
height in the Neighborhoods maintain existing maximum
heights and densities in all sp1rci.i1 ,err,<, including the
Neighborhoods, limit lot coverages for large projects,
establish new setbacks and building planes on major
thoroughfares, and require voter approval for any changes
to these provisions?
Shall an initiative ordinance be adopted amending
Cupertino's General Plan to limit redevelopment of the
Vallco Shopping District, limit building heights along major
mixed-use corridors, maintain existing maximum heights
and densities in all special areas, including the
Neighborhoods, limit lot coverages for large projects,
establish new setbacks and building planes on major
thoroughfares, and require voter approval for any changes
to these provisions?
( C L1J5)I le 1 M I
425 MARKETSTREET MORRISON&FORESTER LLP
MORRISON FOE R S T E R SAN FRANCISCO BEIJING,BERLIN,BRUSSELS,DENVER,
CALIFORNIA 9415-2482 HONG KONG,LONDON,LOS ANGELES,
Naw YORK,NORTHERN VIRGINIA,
PALO ALTO,SACRAMENTO,SAN DIEGO,
TELEPHONE:415.268.7000 SAN FRANCISCO,SHANGHAI,SINGAPORE,
FACSIMILE 415.268.7522 TOKYO,WASHINGTON,D.C.
WWW.MOFO.COM
April 5, 2016 Writer's Direct Contact
+1 (415)268.6523
Mlmwalle@mofo.com
Via Email
Mayor Chang and Members of the City Council
10300 Torre Avenue
Cupertino, CA 95014-3202
Re: City's 9212 Report Accurately Determined that the CCSGI Increases Maximum Building
Heights in Cupertino Neighborhoods
Dear Mayor Chang and Members of the City Council:
I am writing on behalf of the Cupertino Neighbors, Educators and the Cupertino Chamber of Commerce
for the Sensible and Sustainable Revitalization of Vallco to confirm and clarify that the Cupertino
Citizens for Sensible Growth Initiative("CCSGI") unambiguously increases the building height from 30
feet to 45 feet in the City's residential areas, known as the"Neighborhoods" in the City's General Plan.
Counsel for proponents of CCSGI submitted a letter today that misconstrues the City's General Plan in a
way that would render meaningless numerous critical policies,an interpretation that is plainly wrong.
1. Figure LU-1 does not show that Neighborhoods are Special Areas. The attorney for CCSGI
proponents claims in his April 5 letter that Neighborhoods are Special Areas because the legend in
Figure LU-1 lists"Neighborhoods" in the same column as"Special Areas." This single reference
ignores the more specific Figures PA-1 and PA-2 identifying Special Areas and Neighborhoods as
separate areas (see attached), as well as dozens of references throughout the General Plan. A
legend in a single figure does not trump entire chapters that clearly articulate that Neighborhoods
and Special Areas are distinct. Construing Figure LU-1 in the proposed manner would render it in
direct conflict with the General Plan's own text,other maps, figures and policies. This strained
interpretation requires a reader to ignore all text when statutory construction will dictate that
repeated text clarity and other figures will control over a single ambiguous reference in a single
figure. It is noteworthy that Mr. Flashman's March 30 letter to the City conceded the point that
Neighborhoods cannot be Special Areas by omitting this very position from his letter. This last-
ditch effort should be ignored.
2. The General Plan is abundantly clear that Neighborhoods are outside Special Areas, thus
CCSGI raises the height in these areas to 45 feet. CCSGI new Policy LU-3.0 states: "f outside
sf-3640933
MORRISON ( FOERSTER
Mayor Chang and Members of the City Council
April 5,2016
Page Two
of the Special Areas shown in Figures LU-1 Building heights may not exceed 45 feet." The
CCSGI left intact the existing General Plan policies and maps that clearly separate Special Areas
from the Neighborhoods.
• The General Plan unambiguously states that the entire City is divided in two separate
categories, Special Areas and Neighborhoods:
o Page LU-43 reads: "PLANNING AREA GOALS AND POLICIES. As outlined in the
Planning Area chapter, Community Vision 2040 organizes the entire city into 21 distinct
Planning Areas, divided into two categories: (1) Special Areas that are expected to
transition over the life of the General Plan and (2)Neighborhoods where future
changes are expected to be minimal".
o Page PA-3 repeats this concept: "Community Vision 2040 organizes the city into 21
distinct Planning Areas, divided into two categories:
1. Special Areas that are expected to transition over the life of the General Plan
and
2. Neighborhoods where the future changes are expected to be minimal"
o Page LU-44 indicates that future growth will be focused in Special Areas, not
AREAS: Future growth in Cupertino will be located in
Neighborhoods. "SPECIAL
these areas..."
o The entirety of Chapter 2, entitled Planning Areas, is divided into two main subchapters,
one that describes and defines policies for the Special Areas and one that addresses
Neighborhoods.
o Figure PA-1, entitled Special Areas,depicts all of the City's Special Areas, and Figure
PA-2, entitled Neighborhoods are the controlling figures and clearly demonstrate that
they are separate concepts and areas. Like Figure LU-I, Figure PA-1 was also updated
recently and approved on October 20,2015.
• If CCSGI's view were correct, 100% of Cupertino would be a Special Area even though
CCSG's own new Policy LU-3.0 states that "outside of the Special Areas shown on LU-1,
building heights may not exceed 45 feet." So what area can go up to 45 feet if 100%of
Cupertino is a Special Area? A Court would need to conclude that the city only has one
category, not two, in direct contrast to its clearly stated Land Use policies and explanatory text.
• Page LU-11: CCSGI cannot try to cure this defect by having it both ways; courts would not
be able to hold that the Neighborhoods are protected AND a Special Area. "The City will
look towards focusing future change within Special Areas that are located on Cupertino's major
sf-3640933
MORRISON I FOERSTER
Mayor Chang and Members of the City Council
April 5, 2016
Page Three
mixed-use corridors. These areas already have a mix of commercial, office, hotel and residential
uses...In turn, the City will also protect and enhance Neighborhoods throughout Cupertino to
ensure these largely residential areas continue to support the community's great quality of life."
o Horizontal General Plan Inconsistency: There is only one clear meaning to this
General Plan text: Special Areas are for growth and Neighborhoods are to be protected.
Those concepts are fundamentally in conflict. Were CCSGI proponents' strained
interpretation correct, the General Plan would be left internally inconsistent and hence
legally flawed.
o It defies common sense and rational statutory construction for CCSGI proponents
to now claim that its measure treats Neighborhoods as future growth areas. The
City's 2040 Plan SPECIAL AREA map was NOT amended by CCSGI to add
Neighborhoods as a Special Area. The 12 Neighborhoods are still identified in the
General Plan and Neighborhoods map (Figure PA-2 was not deleted to have
Neighborhoods become a Special Area).
3. City Councils are given great deference to construe their own General Plans. Save our
Peninsula Comm. V. County of Monterey (2001). The Council on Thursday night had the
discretion and properly affirmed how Neighborhoods remain separate,minimal growth areas
distinct from Special Areas.
For the reasons outlined above, I respectfully request that for greater accuracy and transparency that you
acknowledge that CCSGI will increase the building height within the Neighborhoods by amending the
ballot question to accurately state that it will increase heights to 45 feet. The voters have a right to
understand what they are voting on.
Sincerely,
Miles H. Imwalle
CC: David Brandt, City Manager
Randolph Horn, City Attorney
Attachments
sf-3640933
SPECIAL AREA AND NEIGHBORHOOD DIAGRAMS
Draft 9, 1 :,;2015
SPECIAL AREAS
HomesteadNorthteVallco
Gateway
Special Area Vallco Shopping District
Special Area North Vallco
Park Special
) Stelling Gateways Los Altos )-..}�
, ., ' -, •• : 117 L9:1: 9-i
'` �., �a:s € rc Sunnyvale
1 1 �– rt �- J • e t t0.
4 Z. e `North - `
• N` / North De Anza De Anza ' �a
Special Area -r Gateway ,£- South Vallco Park
I ♦ ti
�• Community Recreation Node Gateway
♦♦ Oaks Gateway t nest ';_ Santa Clara
f
I ,fi ;y Monta Vista crossr ads' ce°trat 1 eat
'''�� , i Village Special jj"."1 --_t
f `, Area } 1
City s
[ r Center i.
1
i i_. Node Heart of the City j
/i
\ �`J �. Civic Special Area
i Bubb Road — Center i.
i Special Area r} Node
i NI
De Anza College Node
\ ♦ t
North Crossroads Node r San lose
1
I
fSouth l Anza
_,
r ,,J_ ( (fir = Special Area
�1 t
,. ,
s
I Legend
i I__- City Boundary Special Areas
----- Urban Service Area Boundary Heart of the City
- - Sphere of Influence 11i° Vallco Shopping District
Boundary Agreement Line t jErj North Vallco Park
Unincorporated Areas k.::=1A North De Anza
South De Anza
o 03 Mlle ; Homestead
T o moo zoo° 1000 Feet +.e 1
Bubb Road
0 1500 1000 Meters
Monta Vista Village
CHAPTER 2
Planning Areas
Figure PA-2
Neighborhoods
I >.w Los Altos --I tiI HOMESTEAD ROM 1
+
�
rx,,: mest`
i 11
1 ¢ r r
J Villa �\.�__J —� --il )
�, � � unnyvale
—i- \ Garden
t
`` ' VO
ak alley 2 Creston- ` Gate BlaneNorty
I
.,____:
Pharlap y
^ i=" E;'-.
I" d / Santa Clara
Ia^ "STEVENS CP.EEN BLVD
♦ '..
/
/
S - South
/ m EL-A4 RDRancho
/
/ Inspiration Jollyman _ _ ¢Blaney g '-'Rinconada
Heights Monta airgrov
1 i Bo,p,tj ER RD
> Vista �. _.
L.t North
San Jose
i i .- ) ' n Monts `..i
i ( Vista
South lI
/� . ` a ;I
ti ..f.-. --- •
i I
i H..• RRoSaeC RI;`j /_
.L.
/'
J b� I
--' 1 Legend
j
/• City Boundary Neighborhoods
Urban Service Area Boundary 1Oak Valley
„.—' \ Sphere of Influence
\ Creston-Pharlap
Boundary Agreement Line
—-- Inspiration Heights
i L_____ 1 Unincorporated Areas -
Monta Vista North
0 0.5 1 Mile
Monta Vista South
T 0 1000 2000 3000 Feet
0 500 1000 Meters
Homestead Villa
Garden Gate
Jollyman
North Blaney
L ,South Blaney
Fa i rg rove
Rancho Rinconada
—" - PA-19
CHAPTER 2
Planning Areas
INTRODUCTION
CONTENTS
Cupertino benefits from having many established and PA-3 Introduction
vibrant areas—each with its own unique function, charac- PA-4 Special Areas
ter, uses and services. Community Vision 2040 organizes Heart of the City
the city into 21 distinct Planning Areas, divided into two Vallco Shopping District
North Vallco Park
categories:
North De Anza
1. Special Areas that are expected to transition over the South De Anza
life of the General Plan and Homestead
Bubb Road
2. Neighborhoods where future changes are expected to Monte Vista Village
Other Non-Residential/
be minimal Mixed-Use Areas
PA-18 Neighborhoods
This chapter provides an overview of each Planning Area, Oak Valley
including its current context and future vision. Specific Creston-Pharlap
goals, policies and strategies for each area are included Inspiration Heights
in the various topical elements of the General Plan (e.g., Monta Vista North
Monta Vista South
Chapters 3 through 8).
Homestead Villa
Garden Gate
Jollyman
North Blaney
South Blaney
Rancho Rinconada
Fairgrove
PA-3
CHAPTER 3
Land Use and Community Design Element
PLANNING AREA GOALS AND POLICIES . , . :
As outlined in the Planning Areas chapter, Community t -
Vision 2040 organizes the city into 21 distinct Planning
Areas, divided into two categories: (1) Special Areas that
are expected to transition over the life of the General Plan i r
and (2) Neighborhoods where future changes are expected _ I
to be minimal. The following goals, policies and strategies l' -
are specific to the Planning Areas and provide guidance
for future change in accordance with the community vision. The City Council may grant height increases
Figure LU-1 shows maximum heights and residential densi- above the maximum base height standard
in certain areas if a project includes
ties allowed in each Special Area. community benefits
LU-43