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CC Exhibit 11-21-2017 Item No. 2 Closed Session - Letter from Morrison FoersterMORRISON I FOERSTER November 21, 2017 425 MARKET S1REET SAN FRANQSCO CAUFORNIA 94105-2482 TEIEPHONE: 415.268.7 000 FACS IMIIE: 415.268.7522 WWW.MOFO.COM Mayor Vaidhyanathan and Members of City Council City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 MORR I SON FOERST E R LLP BE IJI NG, B E RLI N, BRUSSELS, DENVER, H ONG KONG, L ONDON, LOS ANGE L ES, NEW YORK , NOR TH E R N VIRG I N I A, PALO ALTO, SAN DIEGO, SAN FRANC I SCO, S H ANGHA I , S I NGAPORE, TOKYO, \'(IASH I NGTON, D .C. Writer's Direct Contact +l (415) 268 .7205 DGold@mofo.com Ct-il(z..1/17 $~ tkS-OLl Re: November 21, 2017 Closed Session Agenda Item #2 is Unlawful Dear Mayor Vaidhyanathan and Members of City Council: I am writing on behalf of our client, Sand Hill Property Company ("SHPCO"), the owner of the Vallco Shopping Mall ("Vallco") and the applicant seeking to redevelop this failed mall into a world-class town center that will benefit the entire community. This Council will recall how motivated the City of Cupertino ("City") was to find a high quality, financially strong applicant like SHPCO to tackle the challenging parcel assemblage and the mixed use vision for the redevelopment of Vall co. Both the City and SHPCO have worked tirelessly for many years on this important project. On October 4, 2017, SHPCO was pleased to request the City to resume processing a Specific Plan for Vallco after a long delay caused by a community group effort to halt the mixed use revitalization anticipated in the General Plan. While that effort failed by a wide margin to achieve its intended result of downzoning Vallco, its introduction caused delays, uncertainty and expense. Tonight, the City will consider three contracts valued at nearly $2.5 million to complete the Vallco Specific Plan process. For the Vallco Specific Plan, the City is moving forward with an EIR and the City's chosen consultant is recommending 9.5 days of charrettes. Both the original General Plan process and now the proposal for the Specific Plan call for an open process, infonned by technical analysis, and, most impo1iantly, driven by meaningful community input. In contrast with this Council's reputation for open and good governance, you are apparently being presented this afternoon with a closed session proposal (Agenda Item #2) to discuss- in secret-how to go forward with a rushed California Enviromnental Quality Act ("CEQA") compliance, General Plan Amendment ("GP A") and a rezoning action , all under the guise of "anticipated litigation." If enacted over the next few weeks, this path forward would sf-384244 1 MORRISON I FOERSTER Mayor Vaidhyanathan and Members of City Council November 21, 2017 Page Two implement what a significant majority of Cupertino residents already rejected through their votes. Holding a kickoff session to this series of events in a closed meeting is not only highly inappropriate, it is also illegal. Separate from the closed meeting objections addressed in this letter, late last Friday we saw the notice circulated in the Cupertino Courier, indicating that your staff has agendized and noticed a process to ram through CEQA and a GPA in a three-week period during the year- end holiday season. This letter focuses on the fundamental flaws of the proposed closed session Agenda Item #2, not the hastily planned actions proposed for next week which will be addressed separately. We urge you to recognize that your constituents deserve better, starting with the Council not holding a closed meeting to make secret decisions setting in motion major changes to the future of one of the City's most significant redevelopment sites. We commend the Mayor for her statement issued yesterday attempting to reassure the public that despite the vaguely worded closed session notice, public hearings on Vallco would be held to make actual decisions. The question is not whether formal decisions will occur at noticed hearings, but rather what is the purpose of this closed meeting? This late statement does nothing to cure the Brown Act defects since the public still has no clue what the proposed closed session will cover. As a result, the Council must not even participate in a closed session agenda item this afternoon that will leave the public more confused and justifiably skeptical, particularly in light of the muHiple hearings recently noticed for the holiday season. The closed session Agenda Item #2 for this evening is contrary to the Council's direction to Staff on November 7. At the close of that public hearing, various Council members raised the issue of Senate Bill 3 5 ("SB 3 5") and its potential application to the City's approval of residential and mixed-use development projects, particularly with regard to Vallco. Councilmember Paul suggested that the Council consider adopting a GP A prior to the end of 2017 to "regain control" of City decisional authority from SB 3 5 's housing streamlining measures, recently signed by Governor Brown and promoted by a broad constituency oflocal legislators , housing advocates, and labor organizations. Council members directed City Staff to prepare an analysis of SB 35 to determine what the new legislation permits and its associated timelines, so there could be a public discussion. Tonight's November 21 , 2017 agenda does not contain any mention of SB 3 5 or the other housing bills. However, the agenda does include a closed session item identified as "a conference with legal counsel [ regarding] anticipated litigation." While we are left to speculate, it seems the intent is to address the issue of SB 35 and the need to rush a City process to circumvent the new legislation, as far as Vallco is concerned. Should this closed session agenda item in fact relate to SB 35 and potential CEQA compliance, GP A actions and rezonings, as seems evident from ag endas that just were sf-38 4 2441 2 MORRISON I FOERSTER Mayor Vaidhyanathan and Members of City Council November 21 , 2017 Page Three published late last week, it is in clear violation of the Brown Act because: (1) there is no legal basis for a closed session and (2) the agenda does not meet the most basic notice requirements. We fonnally object to any discussion of Vallco or SB 35 during today's closed session and , if that is in fact the topic intended to be discussed, we respectfully request that the City remove closed session Agenda Item #2 from the agenda and confinn this in the public hearing . I. The Brown Act Requires Open and Transparent Decisionmaking Today's agendized closed session item would violate the touchstone of the Brown Act: openness and public participation in govenunent decision making. See Bell v. Vista Unified School Dist., 82 Cal.App.4th 672 , 681 (2000). "[T]he keystone of the Brown Act is the requirement that ' [ a )11 meetings of the legislative body of a local agency shall be open and public .... "' Roberts v. City of Palmdale , 5 Cal.4th 363, 375, (1993). The Legislature set out the fundamental purpose of the Brown Act in plain terms: [T]he Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. [,0 The people of this State do not yield their sovereignty to the agencies which serve them . The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. Gov't Code § 54950. This City has a good record of embracing such concepts. Indeed, its process for adopting the current General Plan involved I 8 months of public workshops, heatings , technical reports and countless hours of time by many stakeholders . Tonight, at its regular meeting, this Council is also considering whether to approve contracts for the Vallco Specific Plan that would include robust community input. The City knows how to do this right. Today's closed session flies in the face of your democratic traditions and best practices . Openness cannot be sidestepped simply because an issue is controversial or contentious. S e e Gov't Code § 54962. In fact , contentious or controversial issues are what most deserve public input. Closed sessions are limited to narrowly defined situations . This is not one of them. The City can-and must-refuse to participate in this illegal closed sess10n. 3 sf-3 84 2441 MORRISON I FOERSTER Mayor Vaidhyanathan and Members of City Council November 21 , 2017 Page Four II. Deliberating or Taking Actions on a General Plan Amendment in Closed Session is Illegal and in Violation of Statutory General Plan Procedure Requirements and the Brown Act's Open Meeting Laws As you know, when amending a General Plan, a city must carefully follow the procedures and requirements set forth in Government Code section 65350 et seq . The Planning Commission must hold a public hearing and submit a written recommendation to the City Council. See Gov't Code§§ 65353(a), 65354. The City Council must then hold at least one public hearing before taking any action, and refer back to the Planning Commission for recommendation any decision that is substantially different than the Planning Commission's initial recommendation. See Gov't Code § 65356. The California Environmental Quality Act is also triggered. · The Mayor's statement yesterday affirmed subsequent hearings, but it did nothing to justify why a closed session is warranted in advance of these hearings. There is no basis under the Brown Act to discuss these legislative actions, or to chart out strategies to "regain control" from state legislation, in closed session meetings. To justify the closed session, the agenda points to two separate exceptions to the Brown Act's open meeting requirement relating to anticipated litigation. However, neither exception applies. The agenda says the City Council needs to confer with legal counsel relating to anticipated litigation based on Government Code sections 54956.9(d)(2) and (3). These sections read as follows: (2) A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency. (3) Based on existing facts and circumstances , the legislative body of the local agency is meeting only to decide whether a closed session is authorized pursuant to paragraph (2). The first flaw is that the City cannot rely on both of these exceptions. In particular, subsection (3) allows closed meeting discussion "only to decide whether a closed session is authorized pursuant to paragraph (2)." Because this exception allows the Council merely to decide whether a closed session is authorized , it cannot also hold that closed session. The language of subparagraph (2) confinns this two-step process: a closed meeting under this prong is only allowed if the legislative body has already expressed it's "opinion" that there are "existing facts and circumstances. " As desc1ibed below , "facts and circumstances" are narrowly defined and the City can choose only one type of facts and circumsta1ices. To meet public notice requirements , the City cannot go into a single closed session and both determine the "facts and circumstances" and then at the same time also discuss and analyz e the issues . Thus , on the face of the agenda , the City 's rationale for the closed session Item #2 is flawed and illegal. 4 sf-38 42441 MORRISON I FOERSTER Mayor Vaidhyanathan and Members of City Council November 21, 2017 Page Five But that is not the only defect. More fundamentally, there are no "existing facts and circumstances" giving rise to significant exposure to litigation. The statute narrowly defines when there are "existing facts and circumstances": 1. Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed . 2. Facts and circumstances , including, but not limited to, an accident, disaster, incident, or transactional occurrence that might result in litigation a gainst the agency and that are known to a potential plaintiff or plaintiffs , which facts or circumstances shall be publicly stated on the agenda or announced. 3 . The receipt of a claim pursuant to the Government Claims Act ... or some other written communication from a potential plaintiff threatening litigation, which claim or communication shall be available for public inspection pursuant to Section 54957 .5. 4. A statement made by a person in an open and public meeting threatening litigation on a specific matter within the responsibility of the legislative body. 5. A statement threatening litigation made by a person outside an open and public meeting on a specific matter within the responsibility of the legislative body so long as the official or employee of the local agency receiving knowledge of the threat makes a contemporaneous or other record of the statement prior to the meeting, which record shall be available for public inspection pursuant to Section 54957 . Government Code section 54956.9(e). Under the Brown Act, "existing facts and circumstances" "shall consist of only one" of the listed items, so the City cannot offer alternative theories . In fact, the current situation does not involve any qualifying "existing facts and circumstances." Under the first example of potential "facts and circumstances" in subparagraph (1 ), there must be facts and circumstances not known to a potential plaintiff. The Council apparently intends to discuss legal risks relating to a proposed GP A, rezoning, CEQA timelines and other actions relating to Vallco-actions that have been publicly noticed-so there are no facts and circumstances not known to a potential plaintiff. Subparagraph (2) refers to past occtmences, like accidents , disasters , incidents or transactions , so the facts and circumstances are known to potential plaintiffs . That is in apposite to the current situation, where the Council appears to be discussingfuture actions it might take that might expose it to litigation. The legal implications of the Council's future actions are not "ex isting facts and circumsta nces." The City c a nnot use this narrow exception to have secret GPA 5 sf-38 42441 MORRISON I FOERSTER Mayor Vaidhyanathan and Members of City Council November 21, 2017 Page Six deliberations . And, lastly, since there have not been any threats of litigation in writing, at a public meeting, or to any City official or employee, subparagraphs (3) to (5) are likewise inapplicable. As a result, there is no legitimate basis for the Council to go into closed session. The City appears to be planning to rush through a GP A , rezoning and CEQA on an extremely expedited schedule, apparently to try to circumvent state housing legislation and is proposing to have substantive discussions in a private closed session. The City's General Plan is its "constitution" and there are many protections to ensure it is amended only after careful, thoughtful and public deliberations. We urge you to reject this closed door item as a sham that undennines trust in elected officials . III. The Agenda Does Not Meet the Brown Act's Strict Noticing Requirements so No Closed Session Meeting on Item #2 Can be Held Tonight A legislative body's meeting agenda must specify and provide a "brief general description" of each item of business to be discussed . See Gov't Code§ 54954 .2(a) (a regular meeting agenda shall contain a bri ef general description of each item of business to be transacted or discussed at the meeting, including items to be discuss ed in clos ed session ( emphasis added)); § 54956 (a special meeting agenda shall specify ... the business to be transacted or discussed (emphasis added)). No discussion can take place on items not po_sted on the · agenda. See Gov't Code § 54954.2(a)(3). Closed session agendas are not exempt from these rules and must provide the public notice of topics to be considered. See Moreno v. City of King (Moreno), 127 Cal.App.4th 17, 24 (2005) (faulting closed meeting agenda for providing "no clue" that dismissal of an employee would be discussed). The intent behind the Brown Act's agenda and notice requirements is to ensure interested persons have enough infonnation to make informed decisions about whether to comment on, or participate in, a discussion regarding an issue slated for deliberation. See San Diegans for Open Government v. City of Oceanside, 4 Cal. App. 5th 637 ,643 (2016). Further, the requirements "avoid secret legislation or decisionmaking." See Gov't Code§ 54950; Los Angeles Tim es Communications v. Los Angeles County Bd. of Supervisors , 112 Cal.App.4th at 1321-1322.) While a p1ivate individual may not attend a closed session, an opportunity to comment prior to the closed session must be provided . See Gov't Code§ 54950 et seq. This oppo1iunity to comment is meaningless if it is impossible to detennine what will be discussed. The City's agenda for Item #2 is vague and nondescript i_n violation of Brown Act standards . See San Joaquin , 216 Cal.App.4th at 1178 (referencing Moreno, 127 Cal.App.4th at 26- 27; Carlson v. Paradis e Unified Sch. Dist., 18 Cal.App.3d 196,200 (1971) (under Ed. Code provisions, a closed meeting agenda describing the subject matter of a meeting was inadequate and misleading where a vi ta l part of the proposed actions-the school's sf-3842441 6 MORRISON I FOERSTER Mayor Vaidhyanathan and Members of City Council November 21, 2017 Page Seven "closure"-was left out)). The agenda item for today's closed session is so vague as to be meaningless, even misleading. It does not indicate who the potential litigation may be with, the general topic , or any info1mation that could give an interested party notice that it may be affected. Closed meetings allow private discussion, but the public is allowed to comment on closed meetings prior to the meeting and any decisions made must be reported out. See Gov't Code § 54957.1. The vague agenda topic gives "no clue" as to what may be discussed. Further, even the vague description is confusing because it cites to both Government Code subparagraphs 54956.9(d)(2) and (3). But as described above, subparagraph (3) is for discussing "only" whether facts and circumstances warrant a closed hearing under subparagraph (2), meaning the Council cannot also hold the closed hearing. Because the City Council cannot go into closed session for both reasons, Agenda Item #2 is fundamentally flawed and the public has "no clue" what they may be discussing. To the extent the City believes that it is relying on the "safe harbor" language in Government Code section 54954.5, its reliance is flawed. First, as described above, the City cannot rely on both subparagraphs (2) or (3), as the intent of the safe harbor language is to provide a template for citing to one of those , but not both. Further, if the City is relying on subparagraph (2), pursuant to Government Code section 54956 .9(e), it can only cite to one category of "existing facts and circumstances." To provide meaningful notice, members of the public must be told which of these categories the City is relying on, as they vary significantly. Finally, certain "facts and circumstances" require a legislative body to disclose the specific facts and circumstances that justify its conclusion that there is significant exposure to litigation. See Gov't Code§ 54956.9(e)(2), (3), (5). Specifically, if the City is claiming facts and circumstances that are known to a potential plaintiff, those facts should be stated on the agenda. A closed session based on a threat of litigation made outside a public meeting is only appropriate if there is a contemporaneous record of the threat made by the official or employee who received the threat, and that contemporaneous record must be made available to th e public. The City's agenda item #2 does none of these things . ****** For the reasons stated above , the City Council cannot lawfully go into tonight's proposed closed meeting on Item #2. The agenda item is fundamentally flawed and none of the "existing facts and circumstances" required to justify a closed session are present. The City should do the right thing and have an open discussion with the community about the future of one of its most important planning sites. That is what SHPCO requested when it submitted its letter on October 4 , 2017 and is what the City said it would do. That is also what the Council is proposing to do through the Specific Plan EIR contracts it is considering during 7 sf-3 842441 MORRISON I FOERSTER Mayor Vaidhyanathan and Members of City Council November 21, 2017 Page Eight tonight's open meeting. You have a clear opportunity to stand for open government and we urge you not to participate in this ill-conceived and procedurally flawed process. Sincerely, ~~AbA David A. Gold CC: David Brandt, City Manager Randolph Stevenson Hom, City Attorney Aarti Shrivastavaa, Assistant City Manager Reed Moulds, Sand Hill Property Company sf-3842 441 8