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CC 10-04-04 CUPEIQ1NO APPROVED MINUTES CUPERTINO CITY COUNCIL Regular Meeting Monday, October 4, 2004 PLEDGE OF ALLEGIANCE At 6:47 p.m. Mayor James called the meeting to order in the Council Chambers, 10300 Torre Avenue, Cupertino, California, and led the Pledge of Allegiance. ROLL CALL 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, Public Works Director Ralph Qualls, Community Development Director Steve Piasecki, Senior Planner Cynthia Wordell, Network Specialist Nidhi Mathur. Code Enforcement Officers Jeff Trybus and Alex Wykoff, and City Clerk Kimberly Smith. CEREMONIAL MATTERS - PRESENTATIONS 1. Proclamation recognizing the Cupertino National Little League Junior All-stars. (No documentation in packet). Mayor James presented proclamations to all of the team members, their coaches, and manager. 2. Proclamation acknowledging Simon Leong as a 2004 recIpIent of the Business Community Bridge Award. (No documentation in packet). (This item was continued from 9/20/04). Mayor James presented the proclamation to Mr. Leong. 3. Proclamation acknowledging retired librarian Gail Hugger. (No documentation in packet). (This item was continued from 9/20/04). Mayor James presented the proclamation to Ms. Hugger. October 4, 2004 Cupertino City Council Page 2 Mayor James and Public Works Director Ralph Qualls gave an update on the power outage. which occurred on October 1. The outage began about noon, and affected approximately 46,000 customers until 11 p.m. Qualls explained that a contractor, St. Francis Electric, was working near Cristo Rey Drive and damaged two high voltage transmission lines buried in the street. The contractor was working for the County of Santa Clara at the time. Mayor James said that the city's Web site would include information about where to file a claim for relief funds. POSTPONEMENTS - None WRITTEN COMMUNICATIONS - None ORAL COMMUNICATIONS Robert Levy, Wilkinson Avenue, said that he was pleased with the success of various sports teams from Cupertino and suggested that honor roll students from local schools be given similar recognition. He also talked about providing housing for acquaintances that could no longer afford their own places in Cupertino. Dennis Whittaker acknowledged the passing of Bob Rocket, who had been active in the community. He also expressed concerns about the height of the new library. He asked if something could be done to block the lights shining from the windows. Mr. Whittaker also said that this example of a tall building was a valid reason to consider story poles. Bob McKibbon talked about the residents not receiving adequate or notice of major development projects. He urged the City Council to place a moratorium on the discussion and approval of any major development items and to direct staff to immediately develop a procedure to bring these projects before the community. Dr. Lum, Orogrande Place, said that he did not see the necessity for the City to build a community hall and council chamber. He said he was concerned about the priorities of the CIP program, and said that Elm Court and the intersection battery power should take priority. Jenny Lea Sepulveda asked questions about the working schedule and lighting of the new library, and requested a budget report when it was completed. She also asked who was paying the electric bill for the building, and if the lights would be on a timer. She objected to the number of windows facing the neighborhood. CONSENT CALENDAR KwokILowenthal moved and seconded to approve the items on the Consent Calendar as recommended, with the exception of item No.7, which was pulled for discussion. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. 4. Approve the minutes from the September 20 City Council meeting. (To be distributed under separate cover). October 4, 2004 Cupertino City Council Page 3 5. Adopt resolutions accepting Accounts Payable for September 17 and September 24, Resolution Nos. 04-411 and 04-412. 6. Adopt a resolution accepting Payroll for September 24, Resolution No. 04-413. 8. Adopt resolutions supporting the local School District Measures on the November 2, 2004 ballot: a) Cupertino Union School District's Measure 0, Resolution No. 04-414 b) Fremont Union High School District's Measure L, Resolution No. 04-415 c) Sunnyvale School District's Measure P, Resolution No. 04-416 9. Accept municipal improvements for GB Estate Homes, LLC, 10690 South Stelling Road, APN 359-22-067 (No documentation in packet). ITEMS REMOVED FROM THE CONSENT CALENDAR (above) 7. Accept the Treasurer's Budget Report for August 2004. Administrative Services Director Carol Atwood said the City is a little over budget in revenues, but a car dealership and Minton's lumber have left the city, so revenues will drop, and the city also has some increased workers' compensation costs. She said a midyear budget adjustment would be brought to the Council in December. Nancy Newton, President of the Board of Trustees, and Steve Rowley, Superintendent of Schools for the Fremont Union High School District, thanked the Council for the support of Measures 0, L, and P as reflected in the Council's action on item No.8. PUBLIC HEARINGS 10. Consider adopting a resolution abating a public nuisance (excessive un-containerized garbage, garbage, furniture, tools, lumber, recyclables, and appliances in view of the public right of way) at 10240 Johnson Avenue, APN 375-25-062, Mike and Julie Jacobson property owners, Resolution No. 04-417. Code Enforcement Officer Jeff Trybus reviewed the staff report, showed a video roll-in of footage taken on September 24, and showed photographs taken earlier this day. He explained that the property owner had done some moderate cleanup, but there was still more to do, and there have been recurring public nuisance complaints at this location. Lowenthal/Wang moved and seconded to adopt Resolution No. 04-147. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. October 4, 2004 Cupertino City Council Page 4 11. Consider adopting a resolution abating a public nuisance (excessive un-containerized garbage, dry and overgrown weeds, and overgrown foliage obstructing the sidewalk) at 20091 La Roda Court, APN 369-34-030, E.C. and Colleen P. James property owners, Resolution 04-418. Code Enforcement Officer Alex Wykoff showed a video roll-in of the current public nuisance and said a similar problem occurred 4 years ago on this property. He gave a history of the enforcement measures and said that they had also made calls to social service agencies to assist the owner, but she refused to participate. Dale Cramb, La Roda Court, asked if there will be an ongoing program to keep the property maintained. He also reported that a neighbor next to the house in question has been trapping a dozen or more rats a month. Tom Hugunin, La Roda Court, said he had moved in during the first abatement procedure, and now it had happened again. He asked what steps could be taken since the owner was uncooperative. City Attorney Charles Kilian said that the city would not maintain property, but can on I y abate the nuisance. He explained that the costs are collected through property liens. and if the owner does not pay them, then in five years the assessor sells the property at a tax sale. He said he was disappointed that the social services could not help more. Wykoff said the property is now on the weed abatement list, so it will be tended to at least once a year. He would use the information from Mr. Cramb to get the County's Vector Control department involved again. SandovallKwok moved and seconded to adopt Resolution No. 04-418. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. 12. Application(s) U-2004-10 and ASA-2004-14; Mike Rohde (Vallco Shopping Center); 10123 and 10150 N. Wolfe Rd. APN(s) 316-20-037, 316-20-038, 316-20-062, 316-20- 063: a) Approve a use permit to construct 204 residential units and a parking structure (This item was continued from 9/20/04). b) Approve architectural and site approval for 138,760 square feet of new retail space, 204 residential units and a parking structure (This item was continued from 9/20/04). Council received written correspondence from Marguerite Groom saying she had no objection to the project as described in the public hearing notice. October 4, 2004 Cupertino City Council Page 5 Community Development Director Steve Piasecki and Senior Planner Cynthia Wordell reviewed a PowerPoint presentation, with particular emphasis on the following: The phasing connection with the cinema; the size of the internal open space; preservation 0 r the ash trees on Wolfe Road; pedestrian connections with developments by Menlo Equities and HP; calculation of residential density; and residential allocation. Mike Rohde, Val1co General Manager, explained that the theater, residential, and commercial uses were all bonded together as a package to revitalize Vallco Fashion Park and could not be separated from each other. He said that Council was an important partner in making this a success, and he discussed the challenges inherent in negotiating with the management of Penney's and Sears department stores. He also explained that the owners were asking to remove only a portion of the ash trees. Kirk Ellis, Perkowitz & Ruth Architects, gave a slide show that included digital photographs showing the current landscaping and a modified photo showing how it would look with one row of trees removed. He said their intent is to maintain the outer row of trees closest to Wolfe road, and to remove portions of the inner row where needed for fire access to the new buildings, or for sidewalk maintenance or safety. Ellis also reviewed slides of the revised site plan showing shared pedestrian paths that would connect to the Menlo Equities and HP properties, and talked about relocating some of the units to make the residential courtyards larger. Dirk Mattern, County Fire, said that they are required to have access to the bedrooms of the residential units in order to provide rescue services, and they need a 20-foot wide area in which to drive the truck. If the inner row of trees were removed, that would be sufficient space, or constructing the buildings farther away from the existing trees could create that space. James said that she had attended a meeting with Val1co owners and representatives of several banks last week. Mike Rohde said they discussed the construction loan for the theaters and parking lot, and the status of the design and construction. The banks are very involved and want to know how soon they can get a number. Council members discussed the density of the project, and Community Development Director Steve Piasecki said that the City had an approved method for calculating horizontal mixed-use residential density but did not have one for vertical mixed-use projects. Staff would develop one for Council review. Robert Levy, Wilkinson Drive, discussed the need for a neighborhood park for the future residents of the 347 homes that will be developed as a part of this development and Menlo Equities. He suggested that some of the land from each be used to create such a space. Bob McKibbin said these developments are the last large undeveloped lands in Cupertino, and he asked the Council to put a moratorium on the process until the community has an opportunity to discuss them. He talked how the gross site v. net site October 4, 2004 Cupertino City Council Page (, measurements were calculated and said it allowed public street land and the parking structure to be counted, which skews the calculations. He agreed with Council member Lowenthal's suggestion to set the buildings back farther from the street. Jennifer Griffin, Calvert Drive, said that Cupertino has always been a community that values its trees, and the Vallco area has some of the largest in Cupertino. She urged Council to save the mature trees in the area. Dennis Whittaker, Cheryl Drive, said it was important to retain excellence in the schools, and the community has been told by the school district that Monta Vista High School is already impacted and this year Cupertino High would be impacted. He expressed his concerns about the cumulative impacts on the high school from this project, Menlo Equities, and HP. His other major concern was that these projects should provide recreational park space on this side of Stevens Creek Boulevard. Penny Whittaker, Cheryl Drive, said she was concerned about the distance between the buildings and the remaining trees, the small space for the cars and pedestrians. and that the front ofthe market will face the garage area with its car exhaust and noise. Sally Larson said she was in favor of the theaters and reviving the retail at Vallco, but the current configuration still wasn't appealing. She said the residences would be rentals with all the transitory side effects, including moving vans. She said that there would be no room for any sidewalk cafes. Jim Yee, an architect with the Dahlin Group, said he supported the project and has been in dialogue with Kirk Ellis on how to best make the two developments mutually viable. He· said that many people were moving to these types of mixed-use developments because of the vitality and walkability to retail and restaurants, especially on the weekends. Mark Burns, representing the Cupertino Chamber of Commerce said that the Chamber supports the project and that the City needs to keep moving ahead in order to keep costs down as much as possible. Emily Chen, one of the Val1co owners, said that she wanted to keep the trees for aesthetic reasons, and that the proposal is a good compromise. She said that Val1co would succeed this time because the owners are local and understand the community needs because they live and work in the community. She said she has heard from the community that there is a need for a theater. She said that the theater and the development in the Rose Bowl sIte were bound together and cannot be separated. She explained that full support from Council and the community is very important in order to send a signal to the retai I storeowners and get the project done. City Planner Cynthia Wordell read the responses provided by the school districts. She said that Fremont Union High School District indicated that they would expect approximately 23 students from this project, who would attend Cupertino High School. October 4, 2004 Cupertino City Council Page 7 and that the impact would be mitigated by the collection of developer fees. She said that the Cupertino Union School District indicated that they have no objections to the proposed configuration because they estimated there would be no more than 50 additional students, probably attending Sedgewick Elementary School, and that the project would not create a student growth problem that the district couldn't accommodate. Kwok said he was particularly concerned about keeping the ash trees because they add to the character of Cupertino. He asked the arborist to investigate why the ash trees on one side of 280 were not healthy. He said that he was in favor of the project because it provides affordable housing and will bring in revenue ftom park fees. He was satisfied that the schools and traffic wouldn't be impacted. He agreed that the theater would be the economic engine for the project and hoped a bookstore could be added. Sandoval asked the developer to see if some of the trees in the first row could be spared and said she expected to see a landscape plan coming back for approval. She said she was more satisfied with the pathway plan, but that the overpass needs to be addressed further. Emily Chen clarified that the housing would be for-sale condos. Wang said that the school information is correct, but that the information was done in July before the new school year's enrollment and perhaps an updated report was in order. She wanted to insure that that the project was compliant with the master plan, and that residential and the commercial are developed at the same time, or that the commercial and theater are finished first. She stressed the importance of access between the two developments and walkability access for the Rancho residents. She asked if they could look again at the feasibility of making the intersection a "free walk" area. She said she expected any trees that are removed would be replaced. She said time was important in this project and that every day that is delayed burns the developer's money and the City's revenue potential. Lowenthal said that he liked the mixed-use concept, and having the stores be more visible from the outside. He said that the two rows of trees should be kept because they arc a signature feature of Cupertino, and that the design could be modified to meet fire department needs. He said that Council should approve 192 units, not 204, to open up the internal spaces. He said he was adamant about linking the housing to the theaters, so the theaters would be built before or at the same time as the housing. James said that she felt strongly that Val1co could work for many reasons, including the fact that local owners are already making changes, such as the new restaurants. She said she believes that the owners have the intent of building the theaters and is confident that that would happen. Lowenthal clarified that he believes the owners have the intent to build the theaters, but that it's difficult to get the agreement from the owners of Sears. MacyS, and Pennys. October 4, 2004 Cupertino City Council Page 8 Lowenthal/Sandoval moved and seconded to approve the use permit with the following additional conditions: a maximum of 192 units; keep the two rows of trees; and phase the theater before the housing. Council discussed the linkage of the housing and the theaters. The motion failed by the following vote: Ayes: Lowenthal. Noes: James, Kwok, Sandoval, and Wang. Absent: None. WangIKwok moved and seconded to approve the use permit with the following additional conditions: a maximum of 192 units; keep the two rows of trees, and replace any trees that must be removed. Council discussed the number of units and the tree condition. The applicant explained a plan to build 204 units in a different configuration, which would open up more space in the courtyards. He said they would come back with a design showing the relocation of the units. Kwok offered an amendment to approve the use permit with the following requirements: a maximum of 204 units; 12 of the units must be relocated to provide larger courtyards; the double row of ash trees will be retained, with the outer ring being required. Trees from the inner ring may be removed and replaced if damaged. Council voted to accept the amendment. Vote: Ayes: James, Kwok, Sandoval, and Wang. Noes: Lowenthal. Absent: None. Council voted to approve the use permit with the following requirements: a maximum 01' 204 units; 12 of the units must be relocated to provide larger courtyards; the double row of ash trees will be retained, with the outer ring being required. Trees from the inner ring may be removed and replaced if damaged. Vote: Ayes: James, Kwok, Sandoval, and Wang. Noes: Lowenthal. Absent: None. SandovallKwok moved and seconded to approve the architectural and site approval with the same conditions as for the use permit. Vote: Ayes: James, Kwok, Sandoval, and Wang. Noes: Lowenthal. Absent: None. RECESS Council recessed from 11 :00 p.m. to 11: 13 p.m. PLANNING APPLICATIONS 13. Approve Application No. M-2004-07, a modification to Use Permit (U-2003-04) and Tentative Map (TM-2003-02) to construct a 107-unit condominium project and 6,450 October 4, 2004 Cupertino City Council Page 9 square feet of new retail space, Jane Vaughan (Menlo Equities), 10050 N. Wolfe Road. APN(s): 316-20-084. Robert Levy, Wilkinson Avenue, said he appreciated that this developer had the foresight to provide recreational space for residents and their children. LowenthaVKwok moved and seconded to approve the modification to the use permit. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. UNFINISHED BUSINESS 14. Consider adopting a resolution approving the 2004-2005 Citizens' Option for Public Safety (COPS) grant funding program. Utilize these revenues to add back a second School Resource Officer (SRO) position for up to nine months for the 2004-05 school year through a partnership with the City of Cupertino, the Cupertino Union School District (CUSD), and the Fremont Union High School District (FUHSD). Additional monies have been requested from the Rotary Club of Cupertino, Resolution 04-419. Captain John Hirokawa distributed a list that showed alternative uses for the COPS grants. The options included adding back one SRO, adding a second code enforcement officer, or replacing radar guns and adding a part-time code enforcement officer. He recommended that the Council add back the SRO because that person would relieve the workload of beat officers by participating in investigations that students. Kwok/Lowenthal moved to adopt Resolution No. 04-419 approving the COPS grant funding program, and directing staff to use the revenues to add back a second Schoo I Resource Officer in an amount not to exceed$110,000 (or up to $12,000 if the Rotary Club grants $10,000). Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. Council members concurred that the schools should be reminded that their financial support will be required in future years to retain one or both SROs. NEW BUSINESS 15. Review and reject all bids submitted for the Storm Drain Catch Basin Cleaning, Project No. 2004-07. Lowenthal/Wang moved and seconded to reject all bids and authorize the Public Works Director to re-advertise bids. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. 16. Receive the Certificate of Sufficiency for three initiative petitions and provide direction to staff. City Attorney Charles Kilian reviewed the staff report. He explained 4 options that the Council has regarding the initiatives: 1) Adopt each initiative petition as an ordinance; 2) October 4, 2004 Cupertino City Council Page to Submit the petitions to a general election to occur on November 8, 2005; 3) Set a special election for sometime in February, 2005; 4) Continue the hearing for 30 days for receipt of a final report on the impact ofthe initiatives. Robert Levy said that he didn't know what was going to happen with the Anderson Auto Sale property, but that if the initiatives pass, he knows that the City won't have another 8 or 10 story building. He asked Council to consider the alternatives as to what affect the initiatives have on the General Plan, and the Council's ability to negotiate with developers like those for Vallco. Dennis Whittaker said that the Concerned Citizens of Cupertino (CCC) was organized because residents felt that the City government wasn't reading the pulse of the community correctly, and that all possible avenues were exhausted without seeing concrete results. He specified the number of signatures and percentage of voters that has been validated for each initiative, and compared those numbers with those each Council member received in their last election. He asked Council to save the cost of an election and to adopt the initiatives into law. Maika Nagel said that the number of signatures on the initiatives proves that the CCC isn't a minority of the Cupertino residents and that those who do not speak up at a Council meeting don't necessarily agree with the Council. She asked Council to call for a special election. Tony Toy said that the CCC addresses important issues that have negatively impacted their daily lives. He said the group wants to take control over the future of Cupertino and it is supported by over 80% of Cupertino residents and voters. He said the CCC advocates sensible growth not uncontrolled growth. He said that his plan to generate $1 million per year at the Sports Center would be able to help fund a special election. He asked Council to adopt the initiatives immediately and save the cost of an election. Grace Toy said that she collected signatures for the CCC and received support from almost all the homeowners in her neighborhood. She said that the City has enough housing and she was afraid that an increase in population would mean bussing kids to schools outside the community. She said she enjoys the openness of a small-town atmosphere and wants to preserve the quality of life and high value of property. She encouraged residents to attend two community meetings hosted by the CCC, on Thursday, October 21, and Wednesday, October 27, both at 7:00 p.m. at St Jude Episcopal Church at the corner of McClellan and Stelling. Tom Hugunin said that he found that people were concerned about the previous development, and were surprised that they could actually have a say in City workings. He said the response he received the most was interest in signing the petitions. Rusty Britt said that she was concerned about schools being impacted, traffic problems increasing, and irreversible building in Cupertino. She supports the initiatives and asked the residents of Cupertino to attend the two upcoming community meetings, email the October 4, 2004 Cupertino City Council Page II City Council, read about the CCC at www.cupertino.cc. and to call City Hall and leave messages for the Council members. Sally Larson said she was a member of the General Plan Task Force and is concerned about the heights, density, and setbacks of developments in Cupertino. She said that she doesn't want Cupertino to become like Santana Row where retail and residential success are still in question. Gary Wesley, attorney for the CCC, said that each of the 3 initiative petitions requested that its proposed law be adopted without alteration or be submitted to the vote of the people of the City as soon as the law requires. He said that a special election would be called for if 15% of the residents were to sign. He cited one case under the Elections Code that points out that the Elections Code doesn't create the power of initiative in cities, but implements a power that is reserved to voters under the California constitution. He said this case holds that those statutes are to be interpreted in light of the power reserve and in favor of the exercise of the initiative power. He said that if the proponents must go to court to seek a vote on the initiatives before November of 2005, that they may also want to raise some other ways the City officials appeared to have sought to undermine the initiatives and initiative power in Cupertino. He said that it appeared that all City records concerning the initiatives were not produced in response to a public records request, and that the Council convened in closed sessions, in violation of the Brown Act, to discuss the initiatives under the guise of possibly initiating litigation concerning the initiatives. Ned Britt, initiative proponent, said that there is no silent majority who agree with the Council on the issue of dense, high-rise development. He said that a large majority of those who didn't sign the petitions weren't opposed to the initiatives; the CCC just couldn't find them at home to get their signatures. He said that the intent of the petitions is clear, that the CCC, along with 4800 voters, have requested the amendments be adopted or put to a vote as soon as the law requires. He said that the CCC believes the interpretation of the law is on their side, and that the group is ready to file a petition for writ of mandate if necessary. Patricia Smith said that one Council member, prior to an election, has said that the residents of Cupertino don't need more buildings, but instead want more parks and/or green space. She said she was concerned about pollution, traffic, City services, and schools being impacted with additional housing development. She said that the initiative process was the only way to get Council to see and hear the residents, and the only option to establish limits and protect the quality oflife in Cupertino. Steven Scharf said that the vast majority of Cupertino residents are in favor of the initiatives. He said that the Council members know that the language in the petitions was for a special election, and the developers would run wild in the eight months until a November election. He said that it doesn't matter how much a special election costs if the law requires there to be one. He said that passing the initiatives would result in more future sales tax revenue for the City as valuable tax-generating retail space is not October 4, 2004 Cupertino City Council Page 12 converted by developers into high-density housing. He said that the developers have no stake in the community and don't have to live with the consequences to the public schools, traffic congestion, loss of City services, or damage to the environment. Virginia Tamblyn said that the CCC only wants sensible growth, and the Council should be protecting the people who have been living in Cupertino for years and enjoy peace and quiet. She also mentioned that the City needs a park near Portal and Stevens Creek Boulevard. Steve Andrews said that he was on of the 83% that didn't sign the petition but that he wasn't arguing for or against the initiatives. He said he preferred having an election in November of 2005, as opposed to a special election that would cost $371,000 of taxpayers' money. Mark Burns, representing the Cupertino Chamber of Commerce, and the Silicon Valley Association of Realtors, reminded Council that earlier in the evening, the City couldn't find $10,000 for a new Student Resource Officer, and wondered how the City would pay the $371,000 for a special election. In response to a comment, he said that everybody has a chance to come speak about any issue both at the Planning Commission level, and at City Council. He said that should to be a balance between careful, smart development, and generating enough revenue to run the City. Bob Mckibbin said that the CCC has followed the letter of the law in getting signatures for the petitions, and the Council should either adopt the amendments or schedule a special election. He said that the cost quoted for a special election is a maximum cost, and he knows it will be a lot less. He said that all the CCC is asking for is to allow the initiatives to go for a vote to the citizens of Cupertino. Joanne Tong urged the Council to adopt the proposed initiatives and not spend money on the cost of an election. She said that the CCC was not a special interest group, but the citizens of Cupertino. Jennylea Sepulveda said that the residents of Cupertino went to the Planning Commission and Council many times, and still felt that they did not receive what was deserved. She said that she thinks the use of additional funds has been a ploy to tell the residents that the CCC is taking money away from the City when it is short on funds. James asked Kilian to discuss the accusations and interpretations made from the public. Kilian said that he reviewed the City Clerk's determination and found that Section 9214 of the Elections Code deals with the subject, and that he respectfully disagrees with Mr. Wesley's interpretation. He said that the Elections Code states that it is up to the proponents to decide whether to call a special election or not by doing two things: 1) Receive 15% signatures; 2) Ask for a special election in the petition wording. He said that the City Clerk specifically provided the language ahead of time, and the provision of Section 9214 was not complied with in regards to a special election. He said that he October 4, 2004 Cupertino City Council Page 1J doesn't believe this is a technical violation, but a substantive violation of the section. He said that the Council can choose to call a special election, but he doesn't believe one is required in this case. He said that no cases exist that has decided this specific issues because most people that want a special election say they want one. He further explained that one can't be ambiguous because both the agency and the signatories need to know that a group wants a special election, and that some people may elect not to sign a petition if it calls for a special election because they don't want to spend the money. He said that Council could either go to a general election in November of 2005, or call for a special election on its own. Kilian explained that a special election would have to he within 88 days to 103 days from the call of the election. He also said that Council could continue the matter for 30 days based upon the initiative reports that staff submitted Lowenthal said that he acknowledges that a lot of people don't like tall buildings, small setbacks, and high density, but that the Council must do what is right, not necessarily what is popular. He said that the initiatives wouldn't slow growth, help with traffic, pollution, or school crowding, and that it was misleading to be told that. He said that the reason Council shouldn't just adopt the initiatives is that they would be rejecting all the work that the General Plan Task Force did. He also said that he thinks the initiatives are too restrictive because they would remove the property owners' right to a hearing. He also said it was disingenuous to not tell the signatories that the proponents were expecting to spend extra money to have a special election. He said that he saw the letter from the City Clerk to the CCC, highlighting the section that gave language regarding a special election, and that they knew they had to have that language on the petitions. He said that he is for slow growth in Cupertino and doesn't like tall buildings either. He explained that not many tall buildings are approved; there has only been one four-story in the last 4 years. He supported holding the election in November 2005. Wang said that her main concern is fiscal impact. She said that the City had a really hard time during budget review in June and had to even cut a second School Resource Officer at that time. She said that she doesn't know where the extra $300,000 would come from to pay for a special election. She said that talking about the option of having Council adopt the initiatives as law would be reverse democracy. She also said that the Task Force spent a lot of time on the General Plan. She said she would vote for the staff recommendation to call for a final report. Kwok asked Administrative Services Director Carol Atwood where $370,000 could be found in the budget. Atwood responded that Council could take it out of the reserves, but that would just speed up the inevitable of running out of money in less than 5 years if nothing changes. She said that programs could also be cut, but that would equate to a substantial amount of employees at this point, and major service levels would be reduced. Kwok said that in the past, Council has been criticized for not giving ample notice regarding City Council actions. He thought that the agenda title for this item was too vague, and didn't tell the residents that Council might be setting the date for an election. October 4, 2004 Cupertino City Council Page 14 He said that he would wait for 30 days to get a final report instead of call for an election tonight. He asked staff to look into the pros and cons, and at the justification for a special election versus a general election, and to see if there are programs that could be cut to find the $370,000. He said that Council wouldn't be approving a lot of General Plan amendments within the next 9 months. He wondered what happened to the rest of the 83% who haven't spoken up about the initiatives. Sandoval asked staff for some more information on the potential economic disadvantages of the initiatives, with neighboring cities in mind. She also wanted to know the affects on the City's below market rate housing program, and the school impacts if the initiatives passed. She said that she thought the initiatives would adversely affect the economy. She said that she is more inclined to consider a special election because there were a large number of signatures gathered, and because she thinks this issue will come up at every Council meeting until an election is held. She also said that she wasn't absolutely for a special election because she didn't know where the money would come from. She said she supported waiting another 30 days before calling an election. James clarified that it wasn't 14,000 signatures that were gathered, but basically 4,000 times three. She said that it would be irresponsible to call for a special election, and she said she heard from many people who said they wouldn't have signed it if they had known. She said that people in the community will find out that the initiatives will actually drive business out of Cupertino instead of bringing it in. She said that the process of having to go to an election to add onto your house, or to build a retail center or new housing, and have people voting on it who haven't spent the time reading all the material required is scary. She said that if the proponents' intention is to make sure the public understands what's going on in the community, the CCC should give the public the best information so they can make an informed decision. She said she was in favor of setting the election date tonight for November 2004, and didn't see any reason to wait 30 days to go through another evening where people are going to say the same thing. LowenthaVJames moved and seconded to set the election date for November 8, 2005. The motion failed with Kwok, Sandoval, and Wang voting no. Lowenthal/Wang moved and seconded to continue the item to the November 1 Council meeting to receive more information on the reports, in particular the potential economic disadvantages as they relate to neighboring cities; the impacts on the City's Below Market Rate (BMR) program; and the impacts on school income. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. Council also directed staff to bring the budget back to Council to see where $371,000 for a special election might come from, and to bring back information regarding how much is in the reserve. 17. Authorize the City Manager to execute an Amendment to the Joint Funding Agreement with other Santa Clara County cities to update the current scope and authorily of the Silicon Valley Regional Interoperability Project. October 4, 2004 Cupertino City Council Page 15 Lowenthal/Wang moved and seconded to authorize the City Manager to execute an Amendment to the Joint Funding Agreement with other Santa Clara County cities to update the current scope and authority of the Project. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. 18. Receive a resignation letter from Telecommunications Commissioner David Eggleston, and post an amended vacancy notice. LowenthallKwok moved and seconded to accept the resignation and amend the vacancy notice for this commission, and confirmed application deadline of October 22 and interview time of November 1 at 5:30 p.m. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. 19. Receive a report on commissions and committees with terms expiring January 15, 2005, and select an application deadline date of December 28 and interview dates of January 10 and 11,2005. Wang/Kwok moved and seconded to establish an application deadline of December 28 and interview dates of January 10 and 11 at 6:00 p.m. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. ORDINANCES 20. Conduct the second reading of Ordinance No. 1946: "An Ordinance of the City Council of the City of Cupertino Rezoning a 7.5-Acre Site From Planned Development (General Commercial, Light Industrial, Hotel, Regional Shopping) to Planned Development (General Commercial, Light Industrial, Hotel, Regional Shopping, Residential)." LowenthallKwok moved and seconded to read the ordinance by title only and that the City Clerk's reading would constitute the second reading thereof. Ayes: James, Kwok. Lowenthal, Sandoval, and Wang. Noes: Lowenthal. Absent: None. LowenthallKwok moved and seconded to enact Ordinance No. 1946. Ayes: James, Kwok, Sandoval, and Wang. Noes: Lowenthal. Absent: None. 21. Conduct the second reading of Ordinance No. 1947: "An Ordinance of the City Council of the City of Cupertino Modifying a Development Agreement (l-DA-90) to Encompass the Development Proposed in U-2004-10 and ASA-2004-14 for 138,760 Square Feet of New Retail Space, 204 Residential Units and a Parking Structure." Lowenthal/Kwok moved and seconded to read the ordinance by title only and that the City Clerk's reading would constitute the second reading thereof. Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. Lowenthal/Kwok moved and seconded to enact Ordinance No. 1947. Ayes: James, Kwok, Sandoval, and Wang. Noes: Lowenthal. Absent: None. October 4, 2004 Cupertino City Council Page 16 22. Conduct the second reading of Ordinance No. 1948: "An Ordinance of the City Council of the City of Cupertino Amending Sections 18.28.040A and 18.28.050C of the Cupertino Municipal Code Relating to Vesting Tentative Maps." LowenthallKwok moved and seconded to read the ordinance by title only and that the City Clerk's reading would constitute the second reading thereof. Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. LowenthallKwok moved and seconded to enact Ordinance No. 1948. Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. STAFF REPORTS - None COUNCIL REPORTS - None CLOSED SESSION - None ADJOURNMENT At 1 :00 a.m. the meeting was adjourned. / / . I .~f/Jr¡,v(iÝ ~~.{j For more information: Staff reports, backup materials, and 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. 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 from the Cupertino City Channel, 777-2364.