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CC 11-01-04 CI F CUPEIQ1NO APPROVED MINUTES CUPERTINO CITY COUNCIL Regular Adjourned Meeting Monday, November 1, 2004 CALL TO ORDER At 5:35 p.m., Vice-Mayor Kwok called the meeting to order in Conference Room A of City Hall, 10300 Torre Avenue. ROLL CALL City Council members present: Vice-Mayor Patrick Kwok, and Council members Richard Lowenthal, Dolly Sandoval, and Kris Wang. Council members absent: Mayor Sandra James. INTERVIEWS 1. Conduct interviews for two unscheduled vacanCIes on the Telecommunications Commission. Council members interviewed David Clark, Andrew Radle, Rakesh Kumar, Douglas Herda, Eric Klein, Natan Ziv, Shishir MukheIjee, and David Chan. Andrew Radle and Eric Klein were appointed to terms ending 2007. RECESS Council was in recess from 6:42 to 6:47 p.m. PLEDGE OF ALLEGIANCE At 6:47 p.m. Mayor James called the meeting to order in the new Council Chamber in the Community Hall, 10350 Torre Avenue, 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. November 1, 2004 Cupertino City Council Page 2 CEREMONIAL MATTERS - PRESENTATIONS 2. Overview of the new Community Hall features and uses. Public Works Director Ralph Qualls described the features of the new community hall and how it can be converted from a council chamber to a banquet facility or a community meeting room. The City Council members talked about the success of the grand opening festivities for the library and community hall. They thanked all the donors and also thanked the restaurants that provided free refreshments on Saturday, which was attended by over 4,000 people. Mayor James reordered the agenda so that Oral Communications and Consent Items were moved to the end ofthe agenda. POSTPONEMENTS - None WRITTEN COMMUNICATIONS - None PUBLIC HEARINGS 8. Consider amendments to Chapter 19.28 of the Cupertino Municipal Code (Rl Ordinance), Application No.(s) MCA-2003-02, EA-2002-19, City of Cupertino, Citywide: a) Grant a negative declaration b) Conduct the first reading of Ordinance No. 1949: "An Ordinance of the City Council of the City of Cupertino Amending Chapter 19.28, Single Family Residential Zones (Rl) of the Cupertino Municipal Code." Mayor James announced that Council would receive public comment on this item, and then continue it to a later date for Council discussion and action. Senior Planner Peter Gilli reviewed the staffreport and explained that the Rl regulations control how tall a building can be and what the setbacks are in the residential zone. He said in 1999, Council made amendments to the ordinance to reduce mass and bulk of new construction in neighborhoods, limit the second-story area, limit single-story heights, create a design review process, and set a maximum floor area ratio (FAR) of 45%. He explained that the FAR is the amount of building area divided by the size of the lot in square feet. November 1, 2004 Cupertino City Council Page 3 Jennifer Griffin, Calvert Dr., urged Council to keep Rl intact. She said that changing the Rl would allow a return to the type of monster homes that her Rancho Rinconada sought to avoid by annexing to Cupertino. She also asked Council to retain story poles. Dennis Whittaker said that the City is being contradictory when it seems to be downsizing the homes of single-family dwellings, while allowing the remainder of Cupertino to expand upwards and outwards. He said he was in favor of greater than 35% for a second story to allow for a more comfortable home. The following individuals spoke in support of the proposed amendment and increased second story square footage. Jack Hubby (retain story poles) Orrin Mahoney Mark Burns, Silicon Valley Association of Realtors Yvonne Hampton, Oak View Lane (delete story pole requirement) Roy Hampton, Oak View Lane (delete story pole requirement) Susan Louie, Woodberry Drive (delete story pole requirement) Yitom Yan (but opposed any limitation described as a percentage) Don Mackenzie Council concurred to continue this item to November 16,2004. PLANNING APPLICATIONS - None UNFINISHED BUSINESS 9. Council action regarding the three initiative petitions: a) Presentation of the final reports on impacts ofthe three proposed initiatives b) Receive the Certificate of Sufficiency (This item was continued from October 4), and adopt the petitions as law or adopt a resolution setting an election date. Jonathan Stern, vice president of Bay Area Economics, said that the ordinances would result in fewer incentives for developers to build in Cupertino, and reduced competitiveness for new office development (which in turn would affect the high value businesses that Cupertino tries to attract), and reduce employment growth. Stern said that Cupertino's share of the regional economy, which has been growing over the last decade, would very likely not grow at the same rate or perhaps even start to shrink as a share of the regional economy. Simon Alejandrino, Bay Are Economics, said that the height limits in the proposed measures would not allow for multi-family units over retail or office uses except in the Val1co planning area. He said this could lead to higher-priced homes because the lower density would mean less supply, as well as a limit on affordable housing developments November 1, 2004 Cupertino City Council Page 4 because of the density restrictions. He said that the measures could potentially increase property values because of higher home prices, but the total amount of property taxes coming to the City would be reduced because of fewer units built. Alejandrino said that the measures would lead to a net positive fiscal impact on the City General Fund, but overall revenues would be lower because of the reduced number of units and reduced square footage to be built, which would lead to reductions in sales taxes and other revenue sources. Alejandrino said that there would be a neutral fiscal impact on the schools. He explained how the different school districts receive their funding, and said that it is possible that high-density projects would have a more positive fiscal impact than low-density projects. He said that Cupertino Union School District officials indicated they can accommodate any projected new students as part of the General Plan and these proposed measures, but it was important to note that specific schools might be impacted more than others, which may force increased busing and higher costs. He said that the Fremont Union High School District anticipates that it will be over capacity even without any new students because of a large number of middle school students coming through the system. Alejandrino said that under both the current conditions and the proposed measures, the high school district would go over capacity, but the number of students generated is roughly comparable. Lee Rosenthal, Goldfarb and Lipman, explained that the housing element must identifY adequate sites with proper zoning, services and utilities to satisfY the community's housing goals and needs, which include the community share of regional housing. He said that the initiatives would decrease in density to 15 dwelling units per acre, and make it difficult, if not impossible, to meet the goals because there is not enough land or density allowed. Rosenthal said that the initiatives may result in a housing element that did not comply with state law, and consequences may include lawsuits challenging the General Plan and the housing element, or the challenging of individual applications for a permit. He said that a court could chose to shut down all development in the City pending the City taking action to correct the General Plan. In addition to the court action, the City could lose funding from various State programs. Rosenthal listed some of remedies, which included the court invalidating the initiatives, or allowing the City to amend the General Plan. He said the question is whether it would be possible for the City to make changes to the General Plan and the housing element that would compensate for the loss of potential units. Rosenthal also discussed Government Code Section 65-863, which prohibits a city from taking any action to reduce the density of sites that are relied on in a General Plan housing element to meet the City's needs requirements. The only way the City can act to reduce that density is if there's a concomitant increase or decrease in the availability of other sites in order to make up for the loss of density. He said that this is a new statute, and it is unknown how the courts will enforce it. November 1, 2004 Cupertino City Council Page 5 Rosenthal said there would be no direct conflict between the redevelopment plan and the initiatives, although in certain limited cases, the City may not be able to apply its General Plan or ordinances to a redevelopment plan area ifthere's a direct conflict. Rosenthal also said the initiatives would not conflict with that settlement agreement, but to the extent that the initiatives limit heights, densities, and setbacks, and make development of affordable housing more expensive, that would mean fewer funds to spend on the redevelopment plan and housing. Melanie Shaffer-Frietas, housing element consultant, said current housing element was certified by the State in 2002 to be in conformance with state law. She said that if the initiatives are passed, there would be an overall reduction in the City's housing capacity, and Cupertino would not longer be able to show an ability to meet the regional housing need allocation, particularly for very-low, low- and moderate-income housing. She said that some of the adopted goals would also be affected, including: (1) Expand the supply of residential units for all economic segments; (2) Develop housing that is affordable for a diversity of Cupertino households; (3) Conserve and enhance residential neighborhoods. She discussed alternative strategies, including identifying additional sites in the Vallco Park Planning District and allow changed General Plan designations to permit greater density residential use as well as encouraging the conversion of industrial to residential uses in some other planning districts such as the North DeAnza Boulevard, Bubb Road, and Monta Vista districts. She said that less effective strategies would be to revise the below market rate program to include a greater percentage or have deeper targeting. The City Clerk reviewed the staff report, and said that the City Council must receive the certification of sufficiency for the initiative petitions and then either adopt initiatives into law or set an election date. She said that staff recommended a consolidated election in November, to vote on both the Council seats and the initiatives, and the estimated cost of that election would be $300,958. Charles Ahern, Miller Avenue, said he was opposed to a hasty election because this slate of conservative initiatives permanently restricts the future of Cupertino and voters need to consider how their short-term choices may affect future generations. He added that a special election would also have a very low voter turnout. Dennis Whittaker read the first part of a letter to Council, which said that the petitions had been signed by more than 15% of the registered voters and should be resolved by a vote of the people as soon as possible. He said that if the vote were delayed the issue would persist as malignant, contentious dispute. He also said that the special election costs are justified, and that the City is claiming it has insufficient funds for a special election, but is spending money on consultants and studies. Rusty Britt continued reading the letter, and said that if the council decides to delay the vote for more than a year, Concerned Citizens for Cupertino (CCC) is planning to file for writ of mandate, and she explained their interpretation of the election code wording. She November I, 2004 Cupertino City Council Page 6 said that councilman Lowenthal had urged petition signers to retract their signatures but only a negligible number, if any, ofthe signers recanted their signatures Ned Britt continued reading the letter, and said that it would have required at least 500 retractions to reduce the signature count below 15%. He said that if the matter goes to court, the CCC would point out that the City Council has taken active opposition to the initiatives, and council members have repeatedly refused to compromise with CCC. He asked for a special election to vote on the initiatives. Jack Hubby said that CCC does not represent him and they did not ask for a special election in the petition even after the staff advised them how to do so when preparing their petition. He said he was in favor of a November 2005 election, thereby saving the city over $300,000. Jano Banks talked about his pride in being a Cupertino resident, and described how he and his family had spent a day strolling through the City. He said he felt the General Plan allows for a reasonable amount of growth, and he would rather have the taxpayers' money spent on keeping the library open seven days a week instead of on a special election. E. J. Conens said he was a concerned citizen of Cupertino and that the Council should stop stalling and hold a special election. Robert Levy, Wilkinson Avenue, said he did not think anyone has yet asked for an analysis of the difference between the administrative draft and the task force draft regarding housing. He talked about the definition of affordable housing, and said the Council should stop dragging their feet. Mark Burns, representing the Cupertino Chamber of Commerce, said the Chamber supported voting on the initiatives in November 2005. He said more study is needed, and the reports given tonight show the vast negative potential on the city, the economy and ultimately the community. Tom Hugunin, La Roda Court said that he had participated in collecting the 4,000 signatures, which may represent 15% of the vote, and he urged that Council call a special election. Bob McKibben said he felt that the analysis Bay Area Economics was biased because it was titled potential economic disadvantages and did not address potential advantages. He noted that other parts of the report referred to data provided by city staff and developers, and discussions with key informants. He said that 70%-90% of those contacted by CCC signed the initiatives, so there are many more than 15% of the population in favor. Orrin Mahoney, Miramonte Road, said Cupertino is a model community, and although it is not always perfect, the answer is not to adopt overly restrictive laws that limit the elected officials' ability to adapt to changing situations. November 1, 2004 Cupertino City Council Page 7 Steve Andrews said he did not sign the petition~ although he was asked to do so several times. He said he was told it would not cost the City any more money, and that it would not require a special election. Andrews said he would applaud the City Council for saving the taxpayers the cost of a special election. James Black, spoke in favor of voting on the initiatives in November 2005, and felt more time was needed to consider the information presented this evening. Lowenthal/Sandoval moved and seconded to adopt the staff recommendation to receive the certificates of sufficiency and call a consolidated election for November 8, 2005. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. LowenthaVWang moved and seconded to adopt Resolution No. 04-436, requesting a consolidated election on November 8 to vote on three council seats and three initiatives, and setting the argument deadline for August 11, 2005 and the rebuttal deadline for August 18, 2005. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. NEW BUSINESS 10. Adopt a resolution approving a semi-rural designation to eliminate the requirement for street lights on Willowbrook Way pursuant to Ordinance No. 1925, Resolution No. 04- 433. (This item was continued from October 18). Public Works Director Ralph Qualls reviewed the staff report. SandovallKwok moved and seconded to adopt Resolution No. 04-433. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. 11. Adopt a resolution approving the Second Amendment to the Franchise Agreement between the City of Cupertino and Los Altos Garbage Company, dated December 4, 1995, to provide weekly, single stream recycling and yard waste collection for Cupertino residents, Resolution No. 04-434. Public Works Director Ralph Qualls reviewed the staff report. Patrick Kwok explained that he had previously voted no on this matter, and would do so again because he felt new programs should not be added in times of budget crises. Lowenthal/Sandoval moved and seconded to adopt Resolution No. 04-434. Vote: Ayes: James, Lowenthal, Sandoval, and Wang. Noes: Kwok. Absent: None. 12. Adopt a resolution approving an application for grant funding to rehabilitate swim and tennis facilities at the Cupertino Sports Center, Resolution No. 04-435. November 1,2004 Cupertino City Council Page 8 Administrative Services Director Carol Atwood reviewed the staff report. Kwok/Lowenthal moved and seconded to adopt Resolution No. 04-435. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. 13. Mayoral succession and date of Council reorganization: a) Discuss the mayoral succession Sandoval explained that even though there are patterns that have been followed, there is no official practice or policy. She said that rather than discriminating against Council members who are elected in a year when there are three seats to fill, a less discriminatory approach would be to have each Council member have the opportunity to serve as Vice-Mayor and Mayor before another Council member serves a second time. Council discussed past protocol and alternative scenarios, and agreed that there was insufficient time to develop a new policy before the next swearing-in ceremony took place. Orrin Mahoney, representing the Cupertino Chamber of Commerce, said that the Chamber supports keeping the traditional process, which is more stable for the community. He also spoke for himself and said that a formal process is needed, but that it should be put off to the future so that it wouldn't affect the current Council members. Homer Tong said that if a person is elected to Council, even though they are a third-vote-getter, they deserve to be Mayor at least once in the process. He said that regardless of the approach the Council decides on, it would be good to have an understanding that the Vice-Mayor would move on to be Mayor. Mark Burns, representing the Cupertino Chamber of Commerce, urged the Council to concentrate on the important issues at hand, not the modification of a tried and true process that is the tradition and custom of mayoral succession in Cupertino over the last 50 years. He noted that there have been only 3 exceptions to the tradition, which involved the health of a Councilmember, and the terming- out of Council members. He said none of those exceptions apply in this case. b) Schedule date to elect new mayor and vice-mayor, and to hold a reception for the outgoing mayor. Council members concurred to schedule the Council reorganization for Monday, December 6, at 6:00 p.m. ORDINANCES - None November 1, 2004 Cupertino City Council Page 9 STAFF REPORTS - None The Consent Calendar was taken up next. CONSENT CALENDAR Lowenthal/Kwok moved and seconded to approve the items on the Consent Calendar as recommended, with the exception of item 5, which was pulled for discussion. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. 3. Adopt resolutions accepting Accounts Payable for October 15 and 22, Resolution Nos. 04-428 and 04-429. 4. Adopt a resolution accepting Payroll for October 22, Resolution No. 04-430. 6. Adopt a resolution approving an Improvement Agreement for Stevens Creek Office Center Associates, a limited partnership, 20807 Stevens Creek Boulevard (formerly The Good Earth Restaurant), APN 326-32-051, Resolution No. 04-431. 7. Adopt a resolution approving a Maintenance Agreement for Stevens Creek Office Center Associates, a limited partnership, 20807 Stevens Creek Boulevard (formerly The Good Earth Restaurant), APN 326-32-051, Resolution No. 04-432. ITEMS REMOVED FROM THE CONSENT CALENDAR (above) 5. Accept the Treasurer's Budget Report for September 2004. Wang asked about the feasibility of breaking the contract on some investments in order to invest in others with a higher return. Administrative Services Director Carol Atwood said that it is the city's policy to invest at the best rate available at the time based on the city's cash flow need and then diversify the portfolio, which is compared to the average rate of return achieved by the city's benchmark, LAIF. Currently the LAIF return is 1.771% and the city's rate of return is 2.46%. She said that churning the investment is usually not beneficial because the calculations must include unrealized profit or loss. Wang/Lowenthal moved and seconded to accept the Treasurer's Report. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. Oral Communications was taken up next. November 1, 2004 Cupertino City Council Page 10 ORAL COMMUNICATIONS Public Works Director Ralph Qualls showed an diagram of the street and explained the improvements. He said that when the project went through the Planning Commission and City Council, there were a number of actions that the City took to protect this single-family neighborhood, including saving the trees and restricting the Poppy Way frontage to the single- family homes. He said that the only things that have changed are the actions that were taken to protect the neighborhood. The following individuals spoke in opposition of the Poppy Way curb alignment: · Jane Kamvar, Poppy Way · Allen Zhao, Poppy Way · Irene Lin, Wildflower Way · Siu Kung, Poppy Way · Edmund Huie, Poppy Way · Greg Maleski, Poppy Way · Monir Zandbergs, Flower Court · Jim Hunts, Poppy Way · Lloyd Lin, Wildflower Way Their comments included: · Object to waiting a year before being allowed to petition for tree removal and 36-foot wide street · Most residents were surprised about the curb and signed a petition in opposition · Asked the Council to put this issue on the next agenda · The trees should fit in with the rest of the trees in the neighborhood, and these do not · Safety, not trees, should be of more concern, and the narrow street is unsafe, especially at night · Prefer consistent street width over a sidewalk · Residents had been told that a future developer would remove the fence obstruction and put in curbs and sidewalks in line with the existing curbs and sidewalks · The new curb not as visible as the original white fence COUNCIL REPORTS Council members highlighted the activities of their committees and various community events including the following: Future funding of the library and potentially losing more hours if the current tax is not renewed by the voters; the High School Foundation fundraising dinner at Dynasty Restaurant; Visits from the two Sister Cities, and that both now have a student exchange program; the new Rio Adobe restaurant; and requesting a proclamation for Hunger and Homeless Awareness Week. November 1, 2004 Cupertino City Council Page 11 City Clerk Kimberly Smith announced that the community was invited to a meeting to discuss the General Plan, which would be held on Monday, November 15 from 7:00-9:00 p.m. in the Senior Center. CLOSED SESSION - None ADJOURNMENT / ~ Kimberly Smit U City Clerk 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.