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CC 12-02-92 CllY OF CUPERTINO, STATE OF CALIFORNIA 10300 TORRE AVENUE. CUPERTINO, CA 95014 TELEPHONE: (408) 252-4505 cc.848C MINUTES OF TIlE ADJOURNED REGULAR.1.œlfJ1ÑG OF THE CITV COUNCIL HELD ON DECEMBER 2. 1992. COUNCIL CHAMBER. CITV HALL 10300 TORRE AVENUE. CUPERTINO, CALIFORNIA The meeting was called by order at 6:47 p.m. by Mayor Pro Tempore OoIdmIID ROLL CALL COUDC. Present: Dean. Goldman, Somuen, Mayor Szabo (arrived at 6:50 p.m.) Coonc. Absent: Koppel Staff Present: City Msnager Brown Deputy City Clerk WoIf- Dim:tor of Public Worb Viskovicb Director of Community Development Cowan City Planner Wordell City Attorney Kilian ORAL COMMUNICATIONS - None. PUBUC HEARINGS I. Application 3-GPA-90. coosideration of comprehensive amendment of the General Plan. A Retail Housing Mitigation. By consensus. this portioo of tile hearing was continued to December 7. 1992. City Manager Brown asked if Council would get through the joint hillside planning portion of the agenda tonight Mr. Janneck representing Kaiser Cement was present and needed to know so be could make travel IIITIIß8CD1CDts. Mayor Pro Tempore Goldman answered yes and said that tile aim was to end the meeting at 10:00 p.m. (City Clerk's note: Mayor Szabo arrived at 6:50p.m.) ~ B. Mineral Resources. City Planner WO'deii presented the staff report and )joposed policies. MINUTES Of ADJOURNED REGULAR MEETING Of DECEMBER 2, 1992 (CC-84IC) Mayor Szabo announced that at this time major landowners in the area would be allowed ten minutes each to speak. Thomas O'Donnel!, Kaiser Cement, said he did not think the policy would have a direct effcct on them but he did have concerns. He did not think staffs responses to the letter from the ChairmIm of the State Mining and Geology Board were adequate. In particular he spoke of the policy limiting "mineral resource MCæ to present operations in termJ of noise and traffic." He said the policy seems to single out the quarrying industry. It seems that if another quarry were to open in the sphere of inñ..~ce one would have to close. He said it seemed discriminatory. He suggested that a': such time as someone comes before Council and asks for another quarry or intensified use, Council could consider it To put it into the General Plan and single them out is unfair. He asked why it is necessary and asked if Council thought they were discharging what the state law asks. Is there justification for discriminating against this use? He said Council should keep in mind that at such time as they would be the pcnnitting authority, they would require a use permit and would have that hands on ability. Implicit in this General Plan is a discriminatory policy against quarries when the plan is to respond to State law which says you should pay special attention to this very restricted resource. Mr. O'Donnell suggested that Council not do this in the General Plan but allow it to come on later on a siU! specific basis; they would be in compliance with State law. He said he did not think they would hurt the City at all, and stated that he does not know why they feel this is necessary. Counc. Dean described what he believes makes the quarry business different from others. He said he was conccm~ that if more quarries come it would get Wor5C. Mr. O'Donnell said he is asking that control of thi~ is done at the right time. Mr. O'DQllJlell said he had been regulating this and other facilities for a long time so what he is hearing isn't new to him and he doesn't quarrel with it The whole thing is thc:orctica1; no one he knows of is planning to put another quarry in the City or urban service area. If one comes to Council and said they wanted tù do this, by limiting the use permit Council has all kinds of powers as to what they can require. You are saying because trucks cause problems we will put in the General Plan something that will contravene the state law. If someone comes and says they intend to put a quarry in and they are going to take everything out by rail, Council woul~ not be able to comment on it. To say up front the concept of having a quarry is something that won't be consider~ until another quarry is closed seems not to be fair. He said he was asking Council to preserve for themselves the ability to wait and see so that if someone came, for example, and proposed taking materials out by rail they could consider it. If the ability to get rock and aggregate is limited the taxpayer will pay for it, because roads and schools will be built and costs will go up. He said he was asking Council not to give up their power and limit themselves by making a dccision before they have a proposal, 2 t.mIUTF.S OF ADJOURNED REGULAR MmINO OF DECEMBER 2. 1992 (CVI4IC) City Attorney Kilian said his office has not been involved in this matter. However, one of the purposes of staffs recommendation is to deal with the County's approval of quarries outside the jurisdiction of the City. The General Plan of the City e.rtends ~ond the City limits and therefore should be considered by the county. Stste law does single out quarries æ something to be proœ;tcd and prohibits land uses that In incompatible with quarries in catain circumstances. Quarries In happy to be protec:ted by Stste law but don't want to have the special mitigation measures that may apply to them. Mr. Kilian stated that COUDC. Dean's points In well taken but he had no problem with the policy æ recommended. He does IDIdentand the quarry's CODCCI1I3. Mayor Szabo stated that the City wæ not singling out quarries. City Planner Wordell said the policy docs not rule out removal by rail. She agreed with Mayor Szabo that it is not discriminatory. Limits have been Imposed on other activities æwell. It wæ movoo by Coone. Sorensen, SC'JC011ded by Counc. Dean and passed lDIanimously by those present to approve the staff-I"opœcd text and the Planning Commission recommendations æ follows: Policy 5-13: Establish a mineral resource area designation to allow extraction - Delete. Existing Policy: Mineral Extraction Controls: Control scenic restoration and noise pollution as well æ air and water pollution in mineral extJ»....'1ion quarrying processing. and transportation. Existing Policy: Rec;!eation at Old Quarries; Look into the desirability of designating abandoned quarries for passive recreation to rehabilitate the land. New Policy: New mineral extraction areas may be considered within Cupertino's sphere of influence. but the cumulative impact of existing ad proposed activity should not exceed present upeudions in tenns of noise and traffic. Work with Santa Clara County to assure that mining opc.odions outside the City limits are consistent with the City's General Plan. New Policy: Conserve mineral resources areas outside the City by not alioWÏDg incompatible land uses in and around them. Uses considered incompatible are high density residential, low density residential with high 3 MtmJ'ŒS OF ADJOURNED REGULAR MEETING OF DECEMBER 2. \992 (CC·848C) unit value, public faci¡iti~, md industrial and commercial usu with intensive im )8L:ts. City Attorney Kilian stressed that this action IS only for the purpose of establishing policy for CEQA. C. Monta Vista Residential Densities, Ms. Wordell said that Planning Commission's recommendation was that no changes be made in the densities in Monta Vista. She presented the staff report including background on the origin of the request for changes. Staff answered questions about what the General Plan designation was at the time of incorporation and about ·spot· zoning. Jerry Kocir, 12855 Saratoga-Sunnyvale Road, said he was representing property owners Howard and Kerstulovich, Lot 22, APN 357-14-022 at Dolores Avenue and Orange Avenue in Cupertino. The initial application was made long ago. It was directed that if this were considered it should be as a general plan amendment He has studied and analyzed the situation carefully. He. has not gotten clear direction of what is expected. There have been constant delays in getting answers from staff. The application is bas~>d on regional history of the parcel; it would be in harmony with the neighbors, and no negatives or complaints exist against this parcel or its usage. This application is an attempt to upgrade its usage and enhance the value of surrounding properties. The delays have caused a hardship on the owner because of the property value downturn since the 1988 application. This site plan indicates more net area than required to confonn to the zoning law for a two lot split via the General Plan. Mr. Kocir showed slides of the property in question and compared it to other lots surrounding it that have less square footage. He said the lot bas no changes or dedications, He showed pictures of a typical neighborhood environment in the area and said the proposed ase can be in keeping with that kind of neighborhood. Mr, Kocir a!so showed a very large house on the same size lot He said if we leave the lot as it is at 12,000 sq. ft. they can put up a 5,260 sq. ft. building which would be high and big for the area. If we negate that what do we have left? We are back to the neighborhood situation which is the logical way to go; this is the only lot left on that block. Mr, Kocir showed the deve!opment at 21989 Granada. The area of these lot is smal!er. He asked Council to compare with what they want '0 do on Lot 22. Mr. Kocir said this split lot had been granted a variance. he said he could not 4 MlNUl'ES OF ADJOURNED REGULAR MEETING OF DECEMBER 2. 1992 (CC-84IC) understand why Council would grant that and not approve the project ptoposcd by his clients. Mr. Kocir's last slide was of the development at Byrne and Byrne Court - four 1,700 sq. ft. town houses, He said he believed it is appropriate to let the applicant build the project considering the land they have and what it will do for the City. He said he does not see how the City can grant some homeowners special privileges and zoning and deprive others of equal rights and exception when they possess identical property. It gives the appearance of discrimination against property owncrs and double standards of zoning administration. City Attorney Kilian stated that variances are governed by state law and only can apply to exceptions within a zoning district State law does not allow for variances to be used as a substitute for changing the zoning. If a property owner wants to seck a different use of his P'u }Crty because the zoning was improper in his mind, he should seek it as a change in the zone rather than a variance procedure. Mr. Kocir quoted the California Department of Real Estate regarding variances. He said that State law provides that a variance may be granted where the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning clarification. He then submitted 36 signatures for approval of this lot split He said the previous flier was illegal and made out by one man only, Ms. Wordell said the City's recOIds show a different net lot size; Mr. Kocir might have counted some land that would have to be dedicated. Mr. Kocir said that from the applicant's point of view that dedication is not of record so it can be counted. Mayor Szabo said that any lot in the City could be changed in the same way with a zoning change and spot zoning. Ann Anger, President, Monta Vista Improvement Association, said the lots where she lives are different than on the other side of Monta Vista where there was hodgepodge zoning. She ~aid she is plea.'Ied w:th the way the zoning is in her area. She could split her 10,000 ft. lot but could not split another lot she owns because it is smaller. She said she feels protected because small lots cannot be split The area described by Mr. Kocir is different. She said she doesn't see why it can't be split and asked if it were because of Orange being a narrower street, 5 MINUTES OF ADJOURNED REGULAR MEETING OF DECEMBER 2, 1m (CC-14aC) In answer to Council quations. M.s. Wordell said in the Planning Commission's opinion, the piapert)' remains one lot. Cotmc. Goldman said he understands the problem but Council must consider the entire Monta Vista planning area. Dealing with one lot is not sufficient justification to increase the density. It was moved by Counc. Goldman and seconded by Counc. Sorensen to support the Planning Commission recommendation. Mayor Szabo agreed b«".- it would not only require a general plan amendment but it would requi-e spot zoning and he is against that The motion was carried unanimously by those present D. Inspiration Heights. Ms. Wordell presented staft's report and showed a map depicting the Foothill Modified area in yellow, the Half Acre Foothill Modified in red, and the 5-20 Slope Density in green. Planning Commission recommendations were as follows: Keep existing General Plan designation for purposes of determining densities; that is, the flatter area to the east would retain the low density designation of 1-5 dwelling Imiis per gross aac; the more uphill would retain the Foothill Modified Slope Density which was downslope fiom the former 10"10 slope line; and the portion that was originally in the 1/2 Acre Foothill Modified remains in that area (shown in red on the map); outside that is the new proposed 5-20 Slope Dens~lY· General Plan: (relates to yield or density) 1. 2. Consolidation not recommended for lots in common ownership; exCf'CÕ.se merger law. Zoning: (related to develop- ment standards) 1. Rezone area designated for slope den.~ity to RHS. 2. Add policy which says lots with develC'pl11ent proposed on 30"10 slope or with other defined hazards are wlbuildable. Applicant can seek discretionary review for unbuildable þ 6 MI.\l-¡ /'.\ OF\ ))OIW';¡'¡) RHìlí"R \,i¡,¡·:TI.\(j OF DHlMHLR 2, J?92 (CC-&48C) parcels Iment IS to apply this to any R-I lots with any of these conditions Counc Goldman said there IS currently in the Ge:Jeral Plan policy 2-47 which actively acknowledges the existence of legally crczted jots of record ('If 5,000 sq, ft He sa:d he does not think we should acknowledge it in the Genera! Plan even though the State law 3ays we must acknowledge it in fact. Counc. Goldman suggested eliminating the policy and changmg RI-ìO zoning to RHS, He suggested that the Gent:ral Plan designation of the area marked in green on the map be 1/2 Acre Slope Density He also sugg~ted that we require any lots with more Ù1an 30% slope to obtain an exception to build and any lots that do not meet the standards of the zoning district (size. shape. etc.) be required to go through R sImilar exception process including Pl:lIIning Commission hearing and public input. Mr. Kilian claritìed that it would mclude aoy property that is in an RHS zone subject to 1/2 Acre Slope Density zoning designation, not just in Inspirl.'tion Heights Lots of record would be recognized but could not be built upon if they did not conform to the exi~ting RHS designation on that prL\JCrty or were in a 30% slope evcrJ though they comply with the slope density formula In order for them to be allowed to bUIld on those properties, they would h<.ve to receive an cxcepticn from the Planning Commission w;1Ìch would involve a public hearing process. Mr Goldman said he was focusing on the 1!2 Acre Slope Density and below, Mayor Szabo asked ab0ut replaclllg substandard structures. Mr Ki:ian said the non-conforming bui!ding ordinance allows that under certain complicated circumstances. Mayor Szabo expressed concerns regarding narrow roads and asked if there is a mechro1Ìsm to bring those to standard Mr Kilian said that u:¡der the u:Jimproveå street ordlllance, at the building perml~ stage, the Public Works Department makes a determinatton as to whether the rural ~;tandard road for the City will be reqUired If ~~ the property owner seeklllg tÞe building permit would be req,:¡red to front the money for that purpose and the City would use ¡he power of erTllllen! domain to wlckn the road If necessary and the property owner w0u!d h~ve to fmnt that ~'S ",,,I i. subJt;ct to a relm!:,ur.;ement agreement that when other ;;CUpertICS dcve!<'pcd ~here would be relmbursemf?nt to th:~t developer MINUTES OF ADJOURNED REGULAR MEETING Of DECEMBER 2, 1992 (CC-14IC) Mayor Szabo asked whether eminent domain would be used if there were a safety problem. Mr. Kilian stated if the City can't acquire the property in some other way to widen to road, and if the Public Works Department determines a wider road was necessary for safety pwposes, the City would have no choice but to use eminent domain. Dennis West, Cordova road, expressed concems and showed four slides titled, "Proposed General Plan Policies Related to Inspiration Heights." The first slide enumerated the problems. Slide number two stated that a petition with 52 signatures requested that the zoning for Inspiration Heights above 440' elevation be changed from R-IO to RHS with hillside protection. The third slide showed Planning Commission recommendation and requested that Coun..:il increase General Plan designations (e.g. lots of record that are greater than 10,000 sq. ft. are recognized). The fourth slide summarized his recommendations. Mr. West also showed a slide entitled, "Inspiration Heights Options. " In answer to questions, Mr. Kilian said that the City is required to recognize existing lots unless it ca!\ merge them. If a property is over 5,000 sq, ft. we cannot erase lot lines, but we don't have to recognize them for building purposes. He said he understood that Counc. Goldman's proposal was to allow an exception process for those lots. In reality the 14 lots that are vacant probably would be detennined on a case by case basis. Bsrbara West, Cordova Road, said she wholeheartedly endorses the proposed reasonable balance between development and the health, safety and welfare of existing residents. Ms. West showed a series of slides depicting the following: I. Flooding near her home during heavy rainfall. She said that increased development makes these kinds of problems worse. 2. The hillside on Cordova Road before the large retaining wall was built 3. The landslide there before the retaining wall was built 4. With the exi,ting homes, if all the vacant lots were built upon there would be a 30-40"10 increase in density,S. The proposal represents a balance between the various interests, the health, safety and welfare of the current residents versus the development interests of owners of vacant lots. 6. A problem in Inspiration Heights is areas with high density housing even though it is in the hillside area. The reason this has occurred is Policy 2-47. Additional development should be subject to public review. Ms. West said she appreciated staff consideration of street safety and the time Council spent Counc. Sorensen thanked Ms, West and other homeowners for arranging for the tour, 8 MINUTES Of ADJOIJRNED REOULAR MEETINO Of DECF.MBER Z. 1992 (CC-14IC) Charles WiIliams. Merocdes Roød, said let's not confuse mistakes made in 1917 with what we need to do now. We must take steps to preserve the hillsides. Mr. Wi~liams said don't let old mistakes be perpetrated. Steven Haze, San Juan Roød, thanked Council for taking the tour. He said he was basically in concurrence with Counc. Goldman's ",upuotAl. He said he was concerned with "remnants" - lots where you could build on part and part would be 30"/Ó or greater slope. He showed on a map some lots that would be candidates for the proposed alternative. Otherwise h~ said he thought the proposal was a good alternative. Coonc. Dean asked how Mr. Haze's lawsuit against the City related to the proposal. Mr, Kilian said he didn't believe it had anything to do with it Ttie case he refers to is on appeal and rdated to issuance of Certificates of Compliance. However, the lots in question could come within the exception requirement. Ms. Anger said she had had a private tour of the area. In 1970 the first C'OaIs Committee made a study including hillsides that talked about density. She said she does not think you can build on a 5,000 sq. ft. lot on those slopes but she does recognize property rights. Ms. Wordell showed the slide of the Planning Commission recommendations with Counc. Goldman's ploposal added to the list as follows: Elimillltte Policy 2-47. Convert area shown in green to 1/2 Acre Slope Density formula. Establish an exception process for substandard lots in Foothill Modified and 1/2 Acre Slop.; Density areas, It was moved by Counc. Goldman.. seconded by Counc. Sorensen and passed UMH1Iously by those p:-esent to approve the Planning Commission recommendations as listed earlier and to include Counc. Goldman's proposal. Mayor Szabo said perhaps a moratorium should be considered. I Mr. Kilian said the we have fourteen lots that might be subject to being lY.lÎlt upon, He said if Council wanted to stop that they could cons:der a moratorium which would prohibit building permits being issued until the plan is completed. 9 MINUTES OF ADJOURNED REGULAR MEETING OF DECEMBER 2, 1992 (CC-1I4IC) Mr. Kilian said the we have fourteen lots that might be sui>ject to being built upon. He said if Council wanted to stop that they could consider a moratorium which would prohibit building permilll being issued until the plan is completed. It woo!d be an urgency ordinance which is good for four months. Maximum for a moratoriUw is two years. It was moved by Coune. Goldman, seconded by Coone. Sorensen and passed unanimously by thOSè: present to pooceed with a moratorium on the issuance of building permits in the area affected by the pcopoud change and to direct the City Clerk to place an urgency ordinance on the December 7 agenda. E. Joint Hillside Flanning. Ms. Wordell presenœd the four alternatives conaide.-ed b:t the Planning Commission: Prezoning. Joint Area Plan, Joint Specific Plan and Joint Powers Agreement Mayor Szabo said that whatever gets built in the area outside the City limits will affect us so we need more control than we now have. The Joint Powers agreement would apply only to areas outside of the City. Vicki Moore, 1922 The Alameda. Suite 213, San !ose, representing Greenbelt Alliance, said she supported the JPA approach to protecting the greenbelt She said the Alliance pledges to offer continuing support in working with other cities. Ms. Moore said the South County plan is not working as hoped. The JPA is contraduaI and will help ensure the certainty of land use and the permanency of preservation of open space. John Janneck, representing Kaiser Cement, asked what if Cupertino wanted to do something and the City of Los Altos says they don't want it, would they have a say. Mayor Szabo said that with the JP A cities yield the decision making to the board oftheJPA. Mr. Janneck said that maybe another government level is being created that may stop Couneil fTom doing something they as a City might want to do. Mr. Kilian said it depends on how the JPA is written. Some things may be beyond the scope of the JP A Mr, Janneck said suppose Kaiser proposes a use that would bring revenue to the .iurisdictions it borders. One city could be a spoiler, 10 · MINUTES OF ADJOURNED REGUlAR MEETING OF DECEMBER 2. 1992 (cc....1C) Mayor Szabo said the JP A decides, not an individual City. Mr. Jan"""''' 8IIked what ~ now. Mr. Szabo said it would be stated in the General Plan that the possibility of a joint power 4181'ccment would be explored. Mr. Kilian said ;t might be a lengthy process. City Manager Brown said he would be concerned Y,jJ\)ut handing over land use pawen to 8DOther entity. Mayor Szabo said we have no powell! now except making recommendations to the County. With the JPA we would have power to recommend to the JPA 811 well 811 having one vote. Mr. Haze said he was in favor of the JPA He cited an example of what occurred in Palo Alto. It W811 moved by Counc. Sorensen, seconded by Counc. Dean and paled unanimously by those present to approve the Planning Cœunission recommendation amended to read 811 follows: A joint powen agreement sbœId be explored with Cupertino, Los Altos Hills, Saratoga. Palo Alto and the CQunty. Counc. Goldman said it is a good concept but we should be careful 811 to what pawen we cede. 2. Confirmation of date of City Manager's evaluation and City Council/City Manager goal sl'!ttÕng By consensus, Council confirmed that the meeting will be held from 9:~:OO p.m., Saturday. January 9, 1993. Council 8IIked staff for a schedule for completion of the General Plan Amendment At 9:04 p.m., the meeting was adjoum.:d. - ~ , Y~l' K /(.~v lc/ Deputy City Clerk , 11