CC Exhibit 11-27-2017 Item No. 1 State of California's 2017 Legislative Housing Bills Written CommunicationsFrom:Liang-Fang Chao
To:City Clerk
Subject:Fwd: Comment for closed session
Date:Monday, November 27, 2017 4:15:13 PM
Please include this letter in the public record for today's study session. Thanks.
---------- Forwarded message ----------
From: Liang-Fang Chao <lfchao@gmail.com>
Date: Wed, Nov 22, 2017 at 8:20 AM
Subject: Comment for closed session
To: City Attorney's Office <CityAttorney@cupertino.org>, City Council
<citycouncil@cupertino.org>, David Brandt <davidb@cupertino.org>
Dear City Council Members, City Manager and City Attorney,
Here is the comment I was planning to make before the city council meeting:
---------
SB 35 forces the city to accept projects that comply with the General Plan if the city does not
build enough to meet RHNA allocation. SB 35 also states that the max unit allocation" would
be ignored. As a result, on every mixed use site with residential use in Cupertino, a project
could be streamlined and built to the maximum and a potentially unlimited amount of office
and other uses. Subjuct only to building height and units/acre.
Such mixed use zones with residential use include both north and south sides of Stevens Creek
and west of De Anza Blvd.
For Vallco, there is not even height limit.
In December 2014, the city council gave Vallco provisional office allocation and removed
height limit given that the final approval rests with the council. With SB 35, the council retain
the power by using tighter objective standards allowed in SB 35, such as height, setback,
units/acre and floor-area-ratio. The council
can always relax them at final project approval.
AB 1515 would "direct courts to give less deference to local government determinations of a
project’s consistency with local zoning and general plans."
AB 678 "beef up the existing law by making it easier for developers to prove a city acted in
bad faith when denying a project" to panelists the city.
The court can even approve a project the city rejected. Thus, take away the citizens right for a
referendum on the court's decision.
I hope that the city council and staff could evaluate what areas of the GP and MC might be
challenged with lawsuits under SB 1515 or other bills. I'll understand if such conversation
should be carried out in closed session since we don't want to make vulnerable areas of GP or
MC public knowledge.
Thank you for guarding Cupertino's General Plan against possible exploitation.
CC 11-27-2017 Item No. 1
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From:Liang-Fang Chao
To:City Clerk
Subject:Fwd: AB 1515 : Consistency with the General Plan Will be Determined by Developers
Date:Monday, November 27, 2017 4:14:21 PM
Please include this letter in the public record for today's study session. Thanks.
---------- Forwarded message ----------
From: Liang-Fang Chao <lfchao@gmail.com>
Date: Sat, Nov 18, 2017 at 10:48 PM
Subject: Fwd: AB 1515 : Consistency with the General Plan Will be Determined by
Developers
To: City Council <citycouncil@cupertino.org>, David Brandt <davidb@cupertino.org>, "City
of Cupertino Planning Dept." <planning@cupertino.org>
The adopted AB 1515 text would allow developers to take advantage of any loose
language in the General Plan because "AB 1515 will allow the applicant, rather than the
local agency or a judge, to determine consistency of a development with the General Plan and
zoning by allowing the applicant to provide contrary reasons why the project is consistent."
(quote from
"Local Government Positions on Housing Bills" report by American Planning Association,
California Chapter, League of California Cities, Rural County Representatives of California,
California State Association of Counties, Urban Counties of California: https://s3-us-west-
1.amazonaws.com/themarinpost/doc/126/Housing-Positions-Package-Positions-HE-History-
08-01-17.pdf)
When Cupertino adopted the General Plan in December 2014, it was written with the
understanding that the City Council will have the final decision power in interpreting
these policies. But AB 1515 changed the rule and now the developers get to determine
whether a project complies with the General Plan.
In Cupertino's General Plan, are there some policies that could be open to alternative
interpretation by developers? Should we spend some time to go over some essential policies to
ensure that there aren't loopholes?
Would the state allow the cities time to revise the General Plan to tighten the language?
Regardless, should Cupertino re-examine the General Plan as soon as possible? Even if it
cannot be done by Jan. 1, 2018, the sooner the better.
Regards,
Liang Chao
Cupertino Resident
---------- Forwarded message ----------
From: Liang-Fang Chao <lfchao@gmail.com>
Date: Sat, Nov 18, 2017 at 10:39 PM
Subject: AB 1515 : Consistency with the General Plan Will be Determined by Developers
To: "Chiu, Allen" <Allen.Chiu@asm.ca.gov>, "Holland, Tatum"
<Tatum.Holland@asm.ca.gov>, "Ahrens, Patrick" <Patrick.Ahrens@asm.ca.gov>
Allen, Tatum and Patrick,
Thank you so much for taking the time to meet with us.
It was our first meeting with the staff of an Assembly Member. So, we are still learning how to
be more effective in such meetings and also learning how to read these bills and related
documents.Thank you for accommodating our diverse questions.
Where do I find a list of organizations supporting and opposing AB 1515?
I see a list of organizations in the "09/08/17- Senate Floor Analyses", but it doesn't seem to be
complete since it doesn't include "American Planning Association, California Chapter, League
of California Cities, Rural County Representatives of California, California State Association
of Counties, Urban Counties of California".
Thanks.
Here is the analysis from "Local Government Positions on Housing Bills" report by American
Planning Association, California Chapter, League of California Cities, Rural County
Representatives of California, California State Association of Counties, Urban Counties of
California: https://s3-us-west-1.amazonaws.com/themarinpost/doc/126/Housing-Positions-
Package-Positions-HE-History-08-01-17.pdf
The report, dated Aug. 1, 2017, opposes AB 1515 with the following reasons: "This bill
specifies that a housing development project or emergency shelter is “deemed consistent,
compliant, and in conformity” with an applicable plan, ordinance, or other similar provision
if there is substantial evidence that would allow a reasonable person to conclude that the
project is consistent, compliant, or in conformity. We have no problem with the “reasonable
person” portion of this new standard. However, the “deemed consistent” automatic
approval should be deleted - it goes too far and upends the accountability for local land
use decision-making. Under current law, a city council or board of supervisors weighs
the evidence and reaches a decision based on established principles of democratic
decision-making -- local governments are ultimately held accountable for their decisions
by the local electorate. AB 1515 would replace the judgment of local elected officials with
that of any "reasonable person," including the project developer who has a fundamental
economic interest in the project. When fundamental land use decisions, like general plan
consistency, are made by developers rather than elected representatives, local government
accountability is compromised and the recourse available to the electorate is taken away. AB
1515 will allow the applicant, rather than the local agency or a judge, to determine
consistency of a development with the General Plan and zoning by allowing the applicant
to provide contrary reasons why the project is consistent. As a result, the issue will be whether
a “reasonable person” could conclude that the project is consistent – not whether the city or
county had substantial evidence to back up its conclusion."
What do you think of the analysis in this report?
AB 1515 is approved in September 29, 2017. Here is the adopted bill text
(https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB1515):
"This bill would specify that a housing development project or emergency shelter is deemed
consistent, compliant, and in conformity with an applicable plan, program, policy,
ordinance, standard, requirement, or other similar provision if there is substantial evidence that
would allow a reasonable person to conclude that the housing development project or
emergency shelter is consistent, compliant, or in conformity." The text is the same as the
version analyzed by the Aug. 1, 2017 report.
The adopted AB 1515 text would allow developers to take advantage of any loose
language in the General Plan because "AB 1515 will allow the applicant, rather than the
local agency or a judge, to determine consistency of a development with the General Plan and
zoning by allowing the applicant to provide contrary reasons why the project is consistent."
When Cupertino adopted the General Plan in December 2014, it was written with the
understanding that the City Council will have the final decision power in interpreting
these policies. But AB 1515 changed the rule and now the developers get to determine
whether a project complies with the General Plan. Would the state allow the cities time to
revise the General Plan to tighten the language?
Thank you for your help in interpreting AB 1515.
Sincerely,
Liang Chao
Cupertino Resident
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From:Liang-Fang Chao
To:City Clerk
Subject:Fwd: Provisions in the General Plan to Prevent Abuse
Date:Monday, November 27, 2017 4:13:41 PM
Please include this letter in the public record for today's study session. Thanks.
---------- Forwarded message ----------
From: Liang-Fang Chao <lfchao@gmail.com>
Date: Fri, Nov 17, 2017 at 11:21 PM
Subject: Provisions in the General Plan to Prevent Abuse
To: City Council <citycouncil@cupertino.org>, David Brandt <davidb@cupertino.org>, "City
of Cupertino Planning Dept." <planning@cupertino.org>
Dear City Council Members and Planning Staff,
At the time the City Council amended the General Plan in December 2014, the City Council
left it fussy at Vallco Shopping Center site to allow the developer Sand Hill to come up with a
project proposal. As a result, the current General Plan contains a massive 2 million square feet
of office allocation and there is no height limit at Vallco Shopping Center site. Even a
skyscraper would still comply to the current General Plan and that's worrisome.
From my preliminary understanding of the new housing bills, the General Plan will be the last
and only line of defense against poorly designed projects that might create significant negative
impacts on Cupertino and the environments. It is essential that the General Plan gives clear
and precise development standards so that there is no confusion whether a project complies
with the General Plan or not to avoid potential lawsuits. It is essential that the General Plan
gives sufficient limits to development standards so that projects built to the maximum of the
standards would fit the characteristics of Cupertino. This is because under certain conditions,
the city council will no longer have the final decision power on a streamlined project as long
as it complies with the General Plan.
Please examine the General Plan for the Vallco Shopping Center site and beyond. Have we
clearly defined design standards in the General Plan? Should some provisions in the Municipal
Code be moved to the General Plan so that streamlined projects are still subject to those
provisions.
Please assume the worst case, since the worst case might happen.
What if Vallco Shopping Mall is sold again to another developer? What if Vallco Shopping
Mall is sold to multiple developers? (Vallco has 11 parcels, I believe) Are provisions in the
General Plan sufficient to set design standards for such cases?
Thank you for your consideration.
Regards,
Liang Chao
Cupertino resident
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From:Liang-Fang Chao
To:City Clerk
Subject:Fwd: Weaken City Power - Senate Bill 167, Assembly Bill 678 and Assembly Bill 1515
Date:Monday, November 27, 2017 4:12:30 PM
Please enter this letter to the public record for today's study session.
---------- Forwarded message ----------
From: Liang-Fang Chao <lfchao@gmail.com>
Date: Fri, Nov 17, 2017 at 1:12 PM
Subject: Weaken City Power - Senate Bill 167, Assembly Bill 678 and Assembly Bill 1515
To: City Council <citycouncil@cupertino.org>, David Brandt <davidb@cupertino.org>, "City
of Cupertino Planning Dept." <planning@cupertino.org>
Dear City Council Members and Planning Staff,
Thank you for studying the housing bills to be enacted on Jan. 1, 2018.
Could you please also look into bills that will weaken the city's ability to defend its decisions
made in 2018 or later?
If a decision is made in 2017 to amend the General Plan, what such a decision easier for the
city to defend than a decision delayed to 2018?
http://www.latimes.com/politics/la-pol-ca-housing-legislation-signed-
20170929-htmlstory.html
The Housing Accountability Act passed in 1982 prohibits cities from saying no
to housing projects that meet zoning requirements simply because they don’t
like them. But such cases are hard to prove. Three measures, Senate Bill 167,
Assembly Bill 678 and Assembly Bill 1515, will beef up the existing law by
making it easier for developers to prove a city acted in bad faith when denying a
project, and by upping a city’s penalty to $10,000 per unit they rejected.
What if the city defer the decision to the voters? If the city puts a project proposal or a
specific/general plan amendment on the ballot for the voters to approve and the voters reject it,
would that prevent any developer from suing the city?
If the city were to approve/reject a project proposal or a specific/general plan amendment and
a referendum is submitted to put the decision on the ballot, would that prevent any developer
from suing the city for any decision made by the voters?
Thank you for clarifying these questions.
Liang Chao
Cupertino Resident
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From:Liang-Fang Chao
To:City Clerk
Subject:Fwd: Weaken City Power - Senate Bill 167, Assembly Bill 678 and Assembly Bill 1515
Date:Monday, November 27, 2017 4:11:44 PM
Please enter this into the public record for today's study session.
Thanks.
---------- Forwarded message ----------
From: Liang-Fang Chao <lfchao@gmail.com>
Date: Fri, Nov 17, 2017 at 1:12 PM
Subject: Weaken City Power - Senate Bill 167, Assembly Bill 678 and Assembly Bill 1515
To: City Council <citycouncil@cupertino.org>, David Brandt <davidb@cupertino.org>, "City
of Cupertino Planning Dept." <planning@cupertino.org>
Dear City Council Members and Planning Staff,
Thank you for studying the housing bills to be enacted on Jan. 1, 2018.
Could you please also look into bills that will weaken the city's ability to defend its decisions
made in 2018 or later?
If a decision is made in 2017 to amend the General Plan, what such a decision easier for the
city to defend than a decision delayed to 2018?
http://www.latimes.com/politics/la-pol-ca-housing-legislation-signed-
20170929-htmlstory.html
The Housing Accountability Act passed in 1982 prohibits cities from saying no
to housing projects that meet zoning requirements simply because they don’t
like them. But such cases are hard to prove. Three measures, Senate Bill 167,
Assembly Bill 678 and Assembly Bill 1515, will beef up the existing law by
making it easier for developers to prove a city acted in bad faith when denying a
project, and by upping a city’s penalty to $10,000 per unit they rejected.
What if the city defer the decision to the voters? If the city puts a project proposal or a
specific/general plan amendment on the ballot for the voters to approve and the voters reject it,
would that prevent any developer from suing the city?
If the city were to approve/reject a project proposal or a specific/general plan amendment and
a referendum is submitted to put the decision on the ballot, would that prevent any developer
from suing the city for any decision made by the voters?
Thank you for clarifying these questions.
Liang Chao
Cupertino Resident
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From:Liang-Fang Chao
To:City Council; City of Cupertino Planning Dept.; David Brandt
Subject:Does Cupertino"s General Plan set clear and precise objective standards?
Date:Monday, November 27, 2017 4:08:10 PM
Some of the new housing laws are written with the assumption that the General Plan sets a
clear and precise objective standards; therefore, a project that comply with the General Plan
could be approved without adverse impacts on its neighborhoods.
But, does Cupertino's General Plan set clear and precise objective standards?
Page 2 of The Goldfarb Lipman memo states
"Standards in the City's General Plan override any inconsistent zoning or design review
standards."
"A project is also consistent if it complies with the maximum density for the site, plus a
density bonus, even if the City established a lower unit allocation for the site."
In the past, the General Plan sets a more loose standard for a general area and the the
Municipal Code sets a tighter standard for specific zoning.
For example, for R2i zone, the max building height is 18 feet; however, the General Plan sets
the building height for all "Neighborhoods" as 30 feet. Does that mean the area with a height
limit of 18 feet is now inconsistent with the General Plan? Thus, 30 feet applies?
Whether or not SB 35 is likely to be applied to any project in Cupertino, the General Plan
should use languages that do not allow unintentional holes that might be taken advantage of.
Should we examine the General Plan policies to find out these inconsistencies?
Or maybe we can add some text in the General Plan that specifies that in case of
inconsistency, the Municipal Code applies so that the intent of the Municipal Code is not lost.
I understand that SB 35 may not apply to R1 or R2 at this point. But there might be similar
inconsistencies and SB 35 would ignore standards in the Municipal Code.
As suggested by the The Goldfarb Lipman memo:
"The City may want to review its development standards to ensure that they include objective
criteria for evaluating housing projects. The City may also want to develop checklists of
applicable standards to use when evaluating applications to help respond within the
mandatory timeframes."
Here are some examples of policies that require an objective standards:
POLICY LU-1.5: COMMUNITY HEALTH THROUGH LAND USE: Promote community health through land use
and design.
=> What's the meaning of such obscure policy? Does that mean no housing development near freeways?
POLICY LU-1.6: JOBS/HOUSING BALANCE: Strive for a more balanced ratio of
jobs and housing units.
=> What's the intention of such policy? What's considered "balanced"? What's the goal we are thriving for? What"objective standards" are there?
RPC-2.1.1: Dedication of Parkland.
New developments, in areas where parkland deficiencies have been identified, should be required to
dedicate parkland rather than paying in-lieu fees.
=> Can this be enforced? Should it use stronger language, such as "shall"?
Marina and Hamptons do not seem to follow this policy?
Question: Would rooftop park be counted as "parkland" or only ground-level parkland count?
Before the city has a standard to ensure the safety and sustainability of rooftop park, perhaps the rooftop parklandshould not be allowed and the General Plan should state it clearly.
Or specify that rooftop parkland is only allowed with city council approval.
POLICY LU-1.3: LAND USE IN ALL CITYWIDE MIXED-USE DISTRICTS
Encourage land uses that support the activity and character of mixed-use
districts and economic goals.
=> What does this policy mean? Where is the objective standards to implement this policy? Some cities specify a
minimum percentage of retail space for mixed use projects to ensure economic goals of the city.
STRATEGIES: LU-1.3.1: Commercial and Residential
Uses.
Review the placement of commercial and residential uses based on the following criteria:
1. All mixed-use areas with commercial zoning will require retail as a substantial component. The North De
Anza Special Area is an exception.
=> Is STRATEGIES: LU-1.3.1 enforceable under the new housing bills? What does "a substantial component" mean?Is 16% substantial?
=> What does this policy mean? Where is the objective standards to implement this policy? Some cities specify a
minimum percentage of retail space for mixed use projects to ensure economic goals of the city.
"Character" is used in many places in the General Plan without specific policies to specify the "character".
Liang
Liang
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From:Grace Schmidt
Subject:FW: Apartment Housing (please forward to Mayor Savita)
Date:Monday, November 27, 2017 1:19:18 PM
Forwarding as requested.
From: Ruby Elbogen [mailto:rgelbogen@aol.com]
Sent: Saturday, November 25, 2017 4:11 PM
To: Grace Schmidt <graces@cupertino.org>
Subject: Apartment Housing (please forward to Mayor Savita)
Dear Mayor: Just to clear up any misunderstanding
about where I stand on new apartment housing in
Cupertino: What many or most forget is the hundreds of
new apartments on the Wolf Avenue "Corridor"--that
were already passed, but not as yet built, in the
discussion. This will bring hundreds of new apartments
that are not even being discussed at this time, its all
about Sand Hill. After talking about this with my adult
Grandchildren, who are back from college and graduate
school, and asking if they would purchase small for sale
apartments, from one room tiny dwellings to larger owner
occupied for sale units and they said "yes". However, at
the astronomical price of rentals (in the $5,000. per
month range. there are no rally inexpensive rentals) they
would not rent here. While the Sand Hill proponents taut
the need for young people to rent here, none of our
Cupertino kids can afford the current Sand Hill rental
rates. I'm pretty sure your own kids could not afford
these prices either. So, they are obviously not for former
students, and that's why my Grandchildren no longer live
here. If we keep on this path, this will be a city of just old
people. What I hear all the time is also about needing
housing for Apple employees. I feel this aspect should
be taken on by Apple an not us. Two of my
Grandchildren work for facebook, and facebook does
handle it themselves. I believe they contribute to
employee's rent if they live in the city where they work. I
would love to see some innovative solutions by Apple,
for their own employees who want to live in Cupertino--
however, few of the folks I know or have known have
ever lived in the city where they work. In conclusion,
would your Daughter be able to afford $5,000. for herself
and a roommate to live in Cupertino? Mine are well paid,
but could and would not pay Sand Hills apartment rental
fees. Thank you very much. Ruby
Thanks & Regards,
Ruby Elbogen
408/355-0575
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From:Liang-Fang Chao
To:City Council; City of Cupertino Planning Dept.; David Brandt
Subject:What are "Objective Standards"? - questions on housing bills
Date:Monday, November 27, 2017 12:53:19 PM
Dear City Council Members and Planning Staff,
Please clarify what are the "object standards", in the worst case when a developer submits a
project proposal that the developer's attorney argues that the proposal complies with the
General Plan, while the City might disagree.
The relevant sections from the memo by Goldfarb and Lipman are included. I summarize the
interpretation and implication of these segments below.
Segment A: If a housing project complies with all "objective standards", the city may not
deny the application or reduce the density.
Segment B: Under SB 35, a project only needs to satisfy the maximum density, such as
units/acre, and the "maximum unit allocation would be ignored.
Segment C: The court might interpret "objective standards" as the maximum allowed density
and ignore "max unit allocation" to follow SB 35, even though such interpretation in SB 35
only applies to projects qualified for streamlining.
Segment D: The court will now deem a project consistent with objective standards as long as
a project applicant (a reasonable person) provides evidence that the project is consistent. "The
project may be found consistent even if the local government has better evidence that the
project is inconsistent."
Segment E: If a housing advocacy group or a developer sues the city and win, they are
entitled to attorney fees. Thus, it increases the likelihood that housing advocacy groups or a
developers will sue. The city will be fined $10,000/unit or up to $50,000 for each housing unit
for a project the city denied and then the court forces the city to approve.
Question 1: The city uses "max unit allocation" on sites, such as Vallco, Oaks and other sites.
If the court ignores "max unit allocation" as an objective standard, what would that impact
projects in Cupertino? The unit-per-acre would be the only object standard used for any
housing site?
Question 2: If a site, zoned with residential use, submit a project using the maximum allowed
density + density bonus, beyond it's allocated housing unit, would be the city be able to deny
such project proposal? In case the city deny such proposal and get challenged in court, would
the city be fined $10,000 and up to $50,000 per unit?
Question 3: If the citizens file a referendum on such a project approved by the city or the city
put the project proposal on the ballot for the voters to approve or deny, would be court still be
able to overturn the voters' decision and put hefty fine on the city?
Question 4: The "provisional allocation" on Vallco Shopping District was approved with the
understanding that the citizens and the city council have the final approval power. The
intention was that the citizens have the option to reduce the office allocation at the final
project approval. With Segment D, the ""provisional" office allocation of 2 million square feet
has become an entitlement. The city cannot reject any project proposal at Vallco containing 2
million square feet of office space; otherwise, the court could order the city to comply. What
does the city have to ensure that the "provisional" office allocation is indeed "provisional"?
Question 5: With Segment A, B, C and D, Measure D would comply with the General Plan;
or a project applicant (a reasonable person) would argue that Measure D comply. In fact, a
beefed-up version of Measure D with 2 million square feet of office and 2,400 units of
housing units would comply with the General Plan too? Is that the intention of the General
Plan approved by the City Council? If not, how can we clarify the language in the General
Plan so that the intention is clear?
((51 acres + 35 unit/acre) * (1.35) = 2400 units for 35% density bonus.)
Question 6: The General Plan needs to set standards for the worst case scenario. After Jan. 1,
2018, Sand Hill can submit a project proposal with 2 million square feet of office and 2,400
units of housing unit, would the city be able to deny the project and have confidence to hold
out for the legal challenge that follows? If so, could the city spell out what makes the city's
case strong?
(Note that we cannot depend on the developer's good will when making the law. Sand Hill
might sell Vallco Shopping District to another developer who might exploit the General Plan
to their maximum benefits under the new law.)
Question 7: Without the height or setback limits at Vallco Shopping District, there is no
objective standards in the General Plan that defines the "character of Cupertino". The limits
were removed with the understanding that the citizens and the city council have the final
approval power. The citizens have the option to say that the project doesn't fit the character of
Cupertino. But the new housing bills state that only objective standards are respected. Is the
intent of the City Council to accept any project at Vallco Shopping District regardless of its
heights and setbacks? If not, should the General Plan be amended to provide objective
standards, as required by the state laws?
========================
Source: A- Goldfarb Lipman memo
Segment A:
Page 1:
"The Housing Accountability Act states that if a housing development project
application complies with all "objective" general plan, zoning, and subdivision
standards in effect when the application is deemed complete, the City may not deny
the application or reduce the density unless it finds that the project would have a
"specific adverse impact" on public health and safety (which is defined so that, as a
practical matter, it is a very difficult standard to meet)."
"Although "objective standard" is not defined in the Housing Accountability Act, cases
have found that regulations such as permitted uses, density, height, setbacks, and floor
area ratio are "objective," while standards such as "consistent with the community
character" or
"suitable for the site" are subjective and cannot be used as the basis to deny or reduce
the density
of a housing development project.
Segment B:
Under SB 35 (page 2), for projects qualified for streamlining, "A project is also
consistent if it complies with the maximum density for the site, plus a density
bonus, even if the City established a lower unit allocation for the site."
Segment C:
On Page 12:
"Definition of "Objective" Standard. The HAA does not define "objective."
However, SB 35 defines an "objective" standard as one that involves "no personal
or subjective judgment by a public official and uniformly verifiable by reference
to an external and uniform benchmark or criterion available and knowable by both
the development applicant… and the public official prior to submittal." Although
SB 35 states that this definition is confined to that statute, courts may reference
this definition in interpreting the HAA."
Segment D:
On Page 13:
"Less Deference to Local Government Findings of Inconsistency. A housing
project "shall" be deemed consistent with applicable standards if there is
substantial evidence that would allow a reasonable person to conclude that the
project is consistent. Currently a local government's finding of either consistency
or inconsistency is upheld unless no reasonable person could agree.
This new standard may make it more difficult for local governments to deny
projects, because if a court finds that evidence of project consistency submitted by
an applicant is reasonable, the project may be found consistent even if the local
government has better evidence that the project is inconsistent. The standard will
also make it more difficult for project opponents to challenge a project as
inconsistent when the local government has found it to be consistent.
Additionally, any findings made to deny a housing project must be supported by a
preponderance of the evidence, which is a less deferential standard of review than
the current substantial evidence standard. Rather than only looking at the city's or
county's evidence to see if it is "substantial," a court will compare the agency's
evidence with the applicant's evidence and determine which is more convincing."
Segment E: Page 13:
"Increased Penalties for Failure to Comply with the HAA. If a local government
improperly denies any housing project, whether market rate or affordable, the
prevailing party in a lawsuit brought under the Housing Accountability Act is
entitled to attorneys' fees. In addition, if a local agency fails to comply with a
court order to approve a project pursuant to the Housing Accountability Act, it
shall be fined a minimum of $10,000 per unit. Penalties can increase to five times
this amount if the local agency fails to comply with a court order, and the court
finds bad faith."
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From:Liang-Fang Chao
To:City Council; City of Cupertino Planning Dept.; David Brandt
Subject:Opposition Letters from the League of California Cities
Date:Monday, November 27, 2017 11:25:02 AM
Dear City Council Members and Planning Staff,
I am sure that you are aware that the League of California Cities, which Cuperitno is a member of, supports SB 2,
SB 3 and SB 540 and opposes some other housing bills: SB 35, AB 1515, AB 678/SB 167 (same bill), AB 879, AB
72 and AB 1397.
Please pay special attention on the reasons that the League oppose these bills. I wish that the city staff could give
the council and the citizens an overview on the reasons that the League opposes these bills, since these bills make
the city vulnerable.
The following blog includes quotes from the opposition letters from the League to the Governor Brown to oppose
SB 35, AB 1515, AB 678/SB 167 (same bill), AB 879, AB 72 and AB 1397.
The responsibility of the City Council and the City Staff are to look out for the best interest of the City and protect
us from exploitation as a result of intended or unintended consequences of these new bills.
Please do not consider these bills from the point of view whether it will impact one project or one developer, but
how it will impact all future projects.
Sincerely,
Liang Chao
Cupertino Resident
League of California Cities Oppose Some Housing Bills - Why?
On September 29, 2017 Governor Brown signed 15 housing bills into law. These housing bills are outlined
here: BroadAffordable Housing Bill Package Signed by Governor, by Meyers and Nave Attorneys.
The League of California Cities supports SB 2, SB 3 and SB 540 and opposes some other housing bills: SB 35, AB
1515, AB 678/SB 167 (same bill), AB 879, AB 72 and AB 1397. Positions taken by the League in August
2017: http://ctweb.capitoltrack.com/public/publish.aspx?id=55380CA4-DB57-4888-8D35-88EED2D1B1C
Search the position of the League for each bill at http://www.cacities.org/Policy-Advocacy/Bill-Search.
In the opposition or request-to-veto letters submitted by the League, it states.
"The League agrees that California is facing a housing supply and affordability crisis. In fact, one of the League’s four
strategic goals for 2017 is focused on improving the affordability of workforce housing and securing additional funds for
affordable housing. Unfortunately..."
"SB 35 is not the balanced proposal that is needed to provide meaningful relief from soaring home prices."
(From SB 35 Request to Veto Letter)
"AB 1515 goes too far by allowing a court to select the substantial evidence in the record that it relies on to
determine whether a project is consistent with local planning. Local governments are in the best position to
determine whether a project is consistent with the adopted general plan and zoning requirements." (From AB 1515
Request to Veto Letter)
AB 678/SB 167 "would upend longstanding separation of powers principles enshrined in the Constitution
rather than address any potential shortcomings in the Housing Accountability Act." (From AB 678 Opposition
Letter)
"AB 879 would essentially require mitigation fees to be substantially reduced without providing other funding
for services and infrastructure that are required to serve new development." (From AB 879 Request to Veto Letter)
AB 72 greatly expand the workload of the Department of Housing and Community Development (Department) by
providing it broad and nearly unlimited new authority to review any action by a city or county that it determines is
inconsistent with an adopted housing element. (from AB 72 Request to Veto Letter)
AB 1397 requires prcels on a jurisdiction's Housing Element site list to have “realistic and demonstrated potential”
for development during the planning period. For example, parcels in the inventory would be required to have
sufficient water, sewer, and dry utilities infrastructure to support housing development or be included in a
jurisdiction’s existing general plan program or other mandatory plan – including a public or private utility provider’s
plan – to secure sufficient infrastructure to support housing development. (ABAG-MTC Summary of Significant
Housing Bills)
Each of these bills attempts to make it easier for the developers to build more housing faster. But at what cost? How will
each of these bills affect the operations of the city governments?
SB 35 (Wiener) Affordable Housing: Streamlined Approval Process (Quotes from SB 35 Request to Veto Letter) -
applied for some projects that qualify for the streamlined process.
SB 35 (Wiener) would preempt local discretionary land use authority by making approvals of multifamily
developments that meet inadequate criteria, “ministerial” actions. Like similar proposals in the past, this measure
would rely on often outdated community plans and would compromise critical project level environmental review,
public input, and community integrity.
SB 35 is not the balanced proposal that is needed to provide meaningful relief from soaring home prices.
Eliminating opportunities for public review of major multifamily developments goes against the principles of
local democracy and public engagement. Public hearings allow members of the community to inform their
representatives of their support or concerns.
“Streamlining” in the context of SB 35 appears to mean a shortcut around public input. While it may be
frustrating for some developers to address neighborhood concerns about traffic, parking and other development
impacts, those directly affected by such projects have a right to be heard. Public engagement also often leads
to better projects. Not having such outlets will increase public distrust in government and result in additional
ballot measures dealing with growth management.
An applicant must request review under the streamlining provisions. A jurisdiction then has 60 days from
submittal (90 days for projects with more than 150 units) to provide the applicant with written notice of any
objective development standards that the project does not satisfy and an explanation for the conflict; failure to
meet this timeframe results in a project being deemed consistent with such standards. (Recent Developments
in CaliforniaHousing Legislation: Summary of 2017 Housing Legislation by Goldfarb and Lipman Attorneys)
AB 1515 (Daly) Housing Accountability Act (Quotes from AB 1515 Request to Veto Letter, except when noted)
- Unlike SB 35, these bills affect every housing development application reviewed by local government.
AB 1515 gives much less deference to local government's findings of consistency with local plans, allowing courts
to give just as much weight to an applicant's evidence of consistency. (Law Alert 2017-09-19 Legislature Passes
Major Overhaul ofCalifornia Housing Laws by Goldfarb Lipman Attorneys)
AB 1515 (Daly), which would essentially allow a court to determine whether a project is consistent with local
zoning and general plan by selecting the substantial evidence it wishes to rely on rather than reviewing whether
the city council relied upon substantial evidence.
AB 1515 would deviate from longstanding judicial precedent that clearly outlines the role of the city council and
the process by which a court may review a local determination.
The League believes that AB 1515 goes too far by allowing a court to select the substantial evidence in the
record that it relies on to determine whether a project is consistent with local planning. Local governments are in
the best position to determine whether a project is consistent with the adopted general plan and zoning
requirements.
This new standard may make it more difficult for local governments to deny projects, because if a court finds
that evidence of project consistency submitted by an applicant is reasonable, the project may be found consistent
even if the local government has better evidence that the project is inconsistent. The standard will also make it
more difficult for project opponents to challenge a project as inconsistent when the local government has
found it to be consistent. (Recent Developments in CaliforniaHousing Legislation: Summary of 2017 Housing
Legislation by Goldfarb and Lipman Attorneys)
AB 678/SB 167 (Bocanegra) Housing Accountability Act (Quotes from AB 678 Opposition Letter, except when
noted)- Unlike SB 35, these bills affect every housing development application reviewed by local government.
AB 678 (Bocanegra) would, among other things, significantly alter the burden of proof for the denial of a
housing project, allow a judge to order the approval of a housing project, and require the imposition of a minimum
fine of $10,000 per unit in a denied housing project.
AB 678 would upend longstanding separation of powers principles enshrined in the Constitution rather than
address any potential shortcomings in the Housing Accountability Act.
AB 678’s application of the clear and convincing evidence standard turns this entire system on its head by
asking not whether the city council has an evidentiary basis for how it applied the law to the facts, but whether the
facts are as the city council says they are. This inquiry makes no sense when the purpose of an action under
section 1094.5 is to challenge the way in which the city council applied the law to the facts.
Under existing law, if a city council fails to make the necessary findings to deny a project, the court sends the
project back to the city council accompanied by an order to comply with the law: either approve the project or deny
it with adequate findings. AB 678 further violates the separation of powers clause by allowing the court to order
the city council to approve the project whether or not the evidence in the record supports the approval.
AB 678 and SB 167 (identical bills) require that local government provide developers with a list of any
inconsistencies between a proposed project and all local plans, zoning, and standards within 30 to 60 days after
the housing application is complete, or the project will be 'deemed consistent' with all local policies (Law
Alert 2017-09-19 Legislature Passes Major Overhaul ofCalifornia Housing Laws by Goldfarb Lipman Attorneys)
"A housing organization shall be entitled to reasonable attorney’s fees and costs if it is the prevailing party in
an action to enforce this section." (AB 678 Bill Text)
AB 879 (Grayson) Planning and Zoning Housing Element Reports (Quotes from AB 879 Request to Veto Letter)
AB 879 would essentially require mitigation fees to be substantially reduced without providing other funding for
services and infrastructure that are required to serve new development.
This measure would also undermine a US Supreme Court decision that requires local infrastructure fees be
based on the impact of a project and can only cover the cost of the infrastructure necessary to serve the project.
While some may insist that local development fees are too high, they are lawfully determined and necessary to
fund essential services and infrastructure that are vital to the community. AB 879 could undermine important
funding, thus leading to inadequate infrastructure and service delivery.
Adds substantial analysis to the housing element that won’t produce more housing by requiring the analysis
of governmental constraints in the housing element to include any ordinances that directly impact the cost and
supply of residential development. All ordinances could be determined to impact the cost of housing
including critical ordinances like utility infrastructure such as sewer and water connection fees not under the
control of local governments; drought requirements; building and fire code requirements like fire sprinklers; lighting;
fencing; and, road and other infrastructure improvements. If there is something of specific concern, that should be
addressed directly rather than requiring a review of every single local ordinance. (From Local Government
Positions on Housing Bills, by American Planning Association, California Chapter, League of California
Cities, Rural County Representatives of California, California State Association of Counties, Urban
Counties of California)
AB 72 (Santiago) Housing Element (from AB 72 Request to Veto Letter)
AB 72 would create more hurdles to housing construction, rather than address any potential shortcomings in the
enforcement of existing housing element law, by creating an unnecessary and overly burdensome bureaucratic
review process.
AB 72 empowers the Department to second guess any action taken by a city or county that it determines is
inconsistent with a state approved housing element, the Housing Accountability Act, or a number of other housing
related laws. This system of second guessing could slow, or even halt, construction of new housing—a tragic result
in today’s real estate market.
The bill authorizes the Department to exercise the unreviewable power to determine whether a city is in violation of
state law, free from the burdens of proof and presumptions of validity that courts must apply when reviewing local
land use and housing decisions, AB 72 would likely violate the constitutionally enshrined separation of powers.
AB 1397 (Low) Local Planning: Housing Element: Inventory of Land for Residential Development (From AB 1397
Request to Veto Letter)
AB 1397 would revise the inventory of land suitable for residential development identified in a city’s housing
element to include vacant sites and sites that have “realistic and demonstrated potential” for redevelopment to
meet a portion of the locality’s housing need for a designated income level.
AB 1397 abandons the general inventory process and instead require cities to identify land, including vacant sites,
that have “realistic and demonstrated potential for redevelopment.” This change requires an analysis that is very
difficult to be done since there is no way for a city to determine whether the “potential for redevelopment” is
“realistic.” Additionally, if the site is vacant, then it is nearly impossible to evaluate whether the site has
"demonstrated potential" for redevelopment.
AB 1397 places unnecessary restrictions on previously identified housing sites. More specifically, if in the
previous housing element, development did not occur on certain sites listed in the inventory, AB 1397 would
prohibit the current housing element inventory to include that site unless the site is zoned at Mullin densities and
allows 20% affordable to lower income families by-right.
Basically, AB 879 takes away mitigation fees to provide infrastructure and services; thus less funding for the
cities.AB 1515 allows the court to determine whether a project complies with local zoning and general plan, instead of
the city council; thus less legal power to the cities. AB 678 makes it easier for developers and housing advocacy
groups to bring a city to court, while the city is liable for attorney's fees, even for the housing advocacy groups;
thus more city funding would be diverted to lawsuits. SB 35 streamlines projects to eliminate opportunities for public
review; thus rights of residents affected by these projects are ignored.
These housing bills take away the rights and legal powers of local residents and governments. At the same time, these
housing bills require the local governments to meet RHNA Housing Allocation at all income levels, when the local
governments are not builders and have no control over development schedules even if projects are already approved.
Who are funding these housing bills?
Here are a subset of those supporting these housing bills.
California Building Industry Association
Council of Infill Builders
aliforniaC Conference of Carpenters
Los Angeles County Federation of Labor
Bay Area Council
California Apartment Association
California Chamber of Commerce
California Asian Chamber of Commerce
California Asian Pacific Chamber of Commerce
California Business Properties Association
Nonprofit Housing Association of Northern California
Silicon Valley Leadership Group
YIMBY Action
San Francisco Housing Action Coalition
San Francisco Yes-In-My-Back-Yard Party
California Renters Legal Advocacy and Education Fund
California Association of Realtors
California League of Conservation Voters
League of Women Voters
A subset of those opposing these bills:
League of California Cities
American Planning Association, California Chapter
California State Association of Counties
Rural County Representatives of California
Urban Counties of California
California State Association of Counties
Marin County Council of Mayors and Council Members
The Cities Association of Santa Clara County
Many individual cities and towns
REFERENCES:
BroadAffordable Housing Bill Package Signed by Governor, by Meyers and Nave Attorneys
Law Alert 2017-09-19 Legislature Passes Major Overhaul ofCalifornia Housing Laws, by Goldfarb and Lipman
Attorneys
Local Government Positions on Housing Bills, by American Planning Association, California Chapter, League of
California Cities, Rural County Representatives of California, California State Association of Counties, Urban
Counties of California
Recent Developments in CaliforniaHousing Legislation: Summary of 2017 Housing Legislation, by Goldfarb and
Lipman Attorneys
ABAG-MTC Summary of Significant Housing Bills, ABAG and MTC
SB 35 Request to Veto Letter, by League of California Cities
AB 1515 Request to Veto Letter, by League of California Cities
AB 678 Opposition Letter, by League of California Cities
AB 879 Request to Veto Letter, by League of California Cities
AB 72 Request to Veto Letter, by League of California Cities
AB 1397 Request to Veto Letter, by League of California Cities
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From:Danessa Techmanski
To:Savita Vaidhyanathan; Darcy Paul; Rod Sinks; Steven M. Scharf; Barry Chang; Jerry Liu; Geoff Paulsen
Subject:Re: Please, At The Very Least, Just Read The Highlighted Part To Understand The Elephant In The Bills
Date:Thursday, November 23, 2017 2:15:36 PM
P.S. In case it wasn’t clear in my earlier email:
The new housing legislation removes all the hurdles for market-rate housing, not just
affordable ones, making it much harder to increase mitigation fees that could go to
fund more BMR housing. And the 35% density bonus does not even have to be
affordable units at all—just more profit for the developers. This is a total ruse!
Now you know why I am screaming about who wrote the bad new housing laws—that should
have told us everything.
Best,
Danessa
On Nov 23, 2017, at 1:02 PM, Danessa Techmanski <danessa@pacbell.net>
wrote:
Dear Savita and All,
Happy Thanksgiving!!!!
I have spent close to 100 hours pouring over these bills and crunching the
numbers.
According to SB 35, AB 1515 and others Sand Hill can build 2/3rds of their
development as housing WITHOUT the City’s approval, AND bypass CEQA and
design objections, AND reduce impact fees (my claiming that it impacts their
ability to build low income property) as long as 15% of it is very-low and low
income housing.
2,400 housing units there (plus 2M office, 600,000 retail, plus parking and public
spaces make for a total of an 8 Million+ sq ft. project. In comparison, the actual
AC2 spaceship is only 2.8M sq. ft.
Sand Hill can now build 2,400 houses at Vallco when the entire RHNA f for the
city of Cupertino is only around 1,064 houses/units. Remember also, that the 2M
of office and retail is also going to come back later and INCREASE our RHNA
for even more low-inoome housing down the road so technically the 2M. office
will create somewhat of a wash of the housing at Vallco.
RHNA allocation for Cupertino.
--------------------
(See General Plan, Chapter 4, page 14.)
Extremely low/very low (0 - 50% of AMI) - 356 units (33.5%)
Low (51 - 80% of AMI) - 207 units (19.5%)
Moderate (81 - 120% of AMI) - 231 units (21.7%)
Above Moderate (over 120% AMI) - 270 units (25.4%)
AMI = Average Median Income
That gives us:
360 units of low and very-low income housing at Vallco (we need 563 units total)
and
2,040 moderate (or above) housing units ( we only need 231 moderate units)
Vallco would end up with 1809 more moderate (or above moderate) housing units
than we need and use up our whole moderate (+) housing allocation so that now
there is none now left to incentivize other builders to do developments that could include the
other 203 needed units of low income housing that we still need AND now there is even less
(bodily) room. and way more traffic.
But also remember that RHNA allocation is considered the minimum number
now. So, it’s ok to build way over the minimum of market-rate units.
However, that's the problem here.
They gave us such unrealistic RHNA allocation: 794 BMR units (total of moderate, low
income, very low). And the percentage of BMR onsite is only 10% (now 15%, but it was
10% earlier)
So, in order to provide 794 BMR units, we need to produce 7,940 market rate unless we
have some spare land or lots of spare funding to build 794 BMR units ourselves.
The extra 35% density in our housing element will now simply become 35% more
above-moderate income units in Cupertino—not really addressing our housing
crisis at all.
ABAG doesn’t seem to really understand how our city could realistically reach
these RHNA numbers for low and very-low income housing and now all of a
sudden they want to make them simply “minimum requirements”
But they didn't account for the many extra market-rate numbers that will be
produced as a result.
I'm just wondering. Have they done any modeling of what happens if ALL cities
meet their RHNA allocation for BMR by building 10 times of the units? Can you
imagine!!!!!
Finally, You better pin down Sand Hill and your analysts to figure out how much those
2,040 non-low income (moderate and above moderate) units are actually going to rent
for or this will do precious little to help the housing crises for the other 85% of our
population and we will have ruined our city and added tons more traffic for nothing
(plus the YIMBYs will totally be down your throats).
Best,
Danessa
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From:Danessa Techmanski
To:Savita Vaidhyanathan; Darcy Paul; Rod Sinks; Steven M. Scharf; Barry Chang; Jerry Liu; Geoff Paulsen
Subject:Please, At The Very Least, Just Read The Highlighted Part To Understand The Elephant In The Bills
Date:Thursday, November 23, 2017 1:02:19 PM
Dear Savita and All,
Happy Thanksgiving!!!!
I have spent close to 100 hours pouring over these bills and crunching the numbers.
According to SB 35, AB 1515 and others Sand Hill can build 2/3rds of their development as
housing WITHOUT the City’s approval, AND bypass CEQA and design objections, AND
reduce impact fees (my claiming that it impacts their ability to build low income property) as
long as 15% of it is very-low and low income housing.
2,400 housing units there (plus 2M office, 600,000 retail, plus parking and public spaces make
for a total of an 8 Million+ sq ft. project. In comparison, the actual AC2 spaceship is only
2.8M sq. ft.
Sand Hill can now build 2,400 houses at Vallco when the entire RHNA f for the city of
Cupertino is only around 1,064 houses/units. Remember also, that the 2M of office and retail
is also going to come back later and INCREASE our RHNA for even more low-inoome
housing down the road so technically the 2M. office will create somewhat of a wash of the
housing at Vallco.
RHNA allocation for Cupertino.
--------------------
(See General Plan, Chapter 4, page 14.)
Extremely low/very low (0 - 50% of AMI) - 356 units (33.5%)
Low (51 - 80% of AMI) - 207 units (19.5%)
Moderate (81 - 120% of AMI) - 231 units (21.7%)
Above Moderate (over 120% AMI) - 270 units (25.4%)
AMI = Average Median Income
That gives us:
360 units of low and very-low income housing at Vallco (we need 563 units total) and
2,040 moderate (or above) housing units ( we only need 231 moderate units)
Vallco would end up with 1809 more moderate (or above moderate) housing units than we
need and use up our whole moderate (+) housing allocation so that now there is none now left to
incentivize other builders to do developments that could include the other 203 needed units of low income
housing that we still need AND now there is even less (bodily) room. and way more traffic.
But also remember that RHNA allocation is considered the minimum number now. So, it’s ok
to build way over the minimum of market-rate units.
However, that's the problem here.
They gave us such unrealistic RHNA allocation: 794 BMR units (total of moderate, low income, very
low). And the percentage of BMR onsite is only 10% (now 15%, but it was 10% earlier)
So, in order to provide 794 BMR units, we need to produce 7,940 market rate unless we have some
spare land or lots of spare funding to build 794 BMR units ourselves.
The extra 35% density in our housing element will now simply become 35% more above-
moderate income units in Cupertino—not really addressing our housing crisis at all.
ABAG doesn’t seem to really understand how our city could realistically reach these RHNA
numbers for low and very-low income housing and now all of a sudden they want to make
them simply “minimum requirements”
But they didn't account for the many extra market-rate numbers that will be produced as a
result.
I'm just wondering. Have they done any modeling of what happens if ALL cities meet their
RHNA allocation for BMR by building 10 times of the units? Can you imagine!!!!!
Finally, You better pin down Sand Hill and your analysts to figure out how much those 2,040 non-low
income (moderate and above moderate) units are actually going to rent for or this will do precious
little to help the housing crises for the other 85% of our population and we will have ruined our city
and added tons more traffic for nothing (plus the YIMBYs will totally be down your throats).
Best,
Danessa
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