CC 6-19-18 Written Communications Oral Communications (Friends of Better Cupertino)CALIFORNIA BUSINESS LAW OFFICE
BY EMAIL June 18, 2018
Mayor Vice Mayor Council Member Council Member Council Member
Darcy Paul Rod G. Sinks Savita Barry Chang Steven Scharf
Vaidhyanathan
cc. David Brandt, City Manager - manager@cupertino.org
Grace Schmidt, City Clerk - cityclerk@cupertino.org
City Attorney's Office - cityattorneygcupertino.org
Planning Department - planning@cupertino.org
cupertino.org
Re: Request to Issue Statutory Notice DENTING Purported 11SB35"
Application by Vallco Property Owner, LLC (2)
Dear Mayor Paul, Vice Mayor Sinks, and Council Members Vaidhyanathan; Chang
and Scharf,
We represent Friends of Better Cupertino (FBC), a 501(c)(3) non-profit
organization. We refer to our previous letter dated June 14, 2018, and to numerous email
communications addressed to the City by Kitty Moore, Randy Shingai and other concerned
citizens. We note that we have not received any response from the City to our previous
letter despite the extremely urgent nature of the matter.
1. Request
We now repeat and amplify our earlier request, on behalf of all citizens of
Cupertino that the City take timely, full and appropriate action in accordance with
applicable law and good administrative practice to DENY the purported "Vallco Town
Center Project Application pursuant to SB 35" dated March 27, 2018 and submitted to the
City with an undated cover letter at an undetermined date ("Application").
Attached hereto and incorporated by this reference please find the following
supporting documents which we request be immediately posted on the City's website in the
normal manner.
(1) Application Compliance Topic Chart outlining compliance issues raised by the
Application, arranged by topic.
(2) Statute Compliance Chart outlining compliance issues raised by the Application,
arranged by reference to subdivisions of the SB35 statute.
(3) Written presentation entitled "VALLCO TOANN CENTER SB 35 NON-
COMPLIANCE ISSUES." This document discusses in greater detail a number of
19925 STEVENS CREEK BOULEVARD #ICAO E-MAIL: bemsteves@,califomiabizlaw.com
CUPERTINO CA 95014 TEL: 408 253 691 1
Points of statutory non-compliance include, without limitation, the following:
(1) The Application does not meet the minimum 213 residential/non-residential floor
space ratio required under Gov. Code § 65913.4 (a)(1)(C).
Instead, the Application seeks to manipulate the floor space ratio by counting
parking and utility space toward the residential portion, but not counting
comparable parking and utility space toward non-residential portions of the
project.
The principles underlying SB35 clearly call for a consistent, like -on -like
comparison rather than arbitrary juggling of figures.
As shown in the attachments, neither a net calculation comparing usable space
only, nor a gross calculation including parking and utility space in the residential
and non-residential totals would allow the Application to meet the statutory ratio
requirement.
(2) The Application fails to comply with General Plan requirements which permit
residential use only as part of a vibrant mixed-use environment requiring
commercial use of first -floor project portions. Most of the project fails to provide
this.
(3) The project is located on a site which is included on a list of hazardous materials
sites compiled pursuant to Government Code Section 65962.5 ("Cortese List").
SB35 excludes such projects. Gov. Code 65913.4(a)(6)(E).
Approval of a hazardous materials site is a discretionary decision by a local
government that is NOT preempted by SB35.
(4) The Application relies on easements to be vacated by the City. To do so would
constitute a discretionary act involving subjective policy determinations by the
City and City Council. Accordingly, the easements are not preempted by SB35.
(5) The Application purports to appropriate the entire available "pool" of affordable
units (ca. 400 units at present) and commit units in excess of this number.
5. SB35 Statutory Scheme Sets Extremely Rigid Deadlines
As you will be aware, the statutory scheme is extremely rigid. The strict
deadlines and notice requirements require careful attention by the City lest the City
inadvertently lose control of the process.
Specifically, SB35 (now codified as Gov. Code § 65913.4) provides that a non-
compliant development project is nonetheless "deemed" compliant with the "objective
We would be grateful if you could copy the undersigned on any notice of denial
sent to the Applicant,
Sincerely,
Bern Steves
Attachments: Three (3) attachments as listed above
5
CALIFORNIA BUSINESS LAW OFFICE
BY EMAIL June 18, 2018
Mayor Vice Mayor Council Member Council Member
Darcy Paul Rod G. Sinks Savita Barry Chang
Vaidhyanathan
cc: David Brandt, City Manager - manager@cLipertino.org
Grace Schmidt, City Clerk - cityclerk@cupertino.org
City Attorney's Office - cityattomey@cupertino.org
Planning Department - planning@cupertino.org
Council Member
Steven Scharf
Re: Request to Issue Statutory Notice DENYING Purported "SB35"
Application by Vallco Property Owner, LLC (2)
Dear Mayor Paul, Vice Mayor Sinks, and Council Members Vaidhyanathan, Chang
and Scharf,
We represent Friends of Better Cupertino (FBC), a 501(c)(3) non-profit
organization. We refer to our previous letter dated June 14, 2018, and to numerous email
communications addressed to the City by Kitty Moore, Randy Shingai and other concerned
citizens. We note that we have not received any response from the City to our previous
letter despite the extremely urgent nature of the matter.
We now repeat and amplify our earlier request, on behalf of all citizens of
Cupertino, that the City take timely, full and appropriate action in accordance with
applicable law and good administrative practice to DENY the purported "Vallco Town
Center Project Application pursuant to SB 35" dated March 27, 2018 and submitted to the
City with an undated cover letter at an undetermined date ("Application").
I of
Attached hereto and incorporated by this reference please find the following
supporting documents which we request be immediately posted on the City's website in the
normal manner.
(1) Application Compliance Topic Chart outlining compliance issues raised by the
Application, arranged by topic.
(2) Statute Compliance Chart outlining compliance issues raised by the Application,
arranged by reference to subdivisions of the SB35 statute.
(3) Written presentation entitled "VALLCO TO" CENTER S13 35 NON-
COMPLIANCE ISSUES." This document discusses in greater detail a number of
19925 STEVENS CREEK BOULEVARD #100 E-MAIL: bemsteves@califoniiabizlaw.com
CUPERTINO CA 95014 TEL: 408 P53 691 1
issues raised by the Application, supported by references to the record and to legal
authority.
Please=note that while there is some overlap among the aforesaid three (3)
documents, this letter and other communications referred above, each also contains
important content and information that is unique. Full and appropriate review and action by
the City's entire Planning team will be required to capture and fully process the entirety of
the material in the short time available. The City should, of course, err on the side of
including material and grounds for denial so as to avoid the undesirable legal effects (and
embarrassment) of forfeiting grounds of denial at the end of the statutory period.
3. City Accepted Parts of Application on or After March 29, 2018, and
Misrepresented Filing Date
Disturbingly, FBC's review of electronic records (Adobe Acrobat .pdf files)
submitted as part of the Application has revealed that some key documents were not created
until after close of business on Wednesday March 28, 2018. It follows that these
documents could not have been submitted to the City until the following business day,
Thursday, March 29, 2018.
We also note that the cover letter accompanying the application and signed by
Reed Moulds of Sand Hill Property Company is - somewhat unusually - undated.
Surprisingly in the circumstances, the City's website' states categorically that
"Sand Hill Property Company filed an application with the City of Cupertino on March 27,
2018." Presumably, this statement and the accompanying electronic files were posted at the
behest of the Planning Department with the personal authorization of the Chief Planner.
The City's late acceptance of significant parts of a project application violates
established procedure and amounts to misrepresenting the filing date to the City Council
and to the citizens. Late submission of key parts of the application also makes a mockery
of the statutory scheme of SB35 which presumes that a complete application accompanied
by all electronic files must be on file to trigger the 90 -day response period.
We trust that the City of Cupertino, located in Santa Clara County; will not deny
that electronic files are a fundamental prerequisite to the public review process in 2018.
Notwithstanding these irregularities, it should be noted that the City cannot now
assert a different (later) filing date for the Application. The Applicant is liable to claim that
it has continued to rely on the City's officially stated filing acceptance date of
March 27, 2018.
The Application is inconsistent with SB35 and other requirements in a number of
respects documented herein and in email correspondence to the City.
http://wwNv.cupertino.org/ourcity/departments/communitydevelopment/Planninglmajorprojectslvallcosb35application
N
Points of statutory non-compliance include, without hinitation, the following:
(1) The Application does not meet the minimum 2/3 residential/non-residential floor
space ratio required under Gov. Code § 65913.4 (a)(1)(C).
Instead, the Application seeks to manipulate the floor space ratio by counting
parking and utility space toward the residential portion, but not counting
comparable parking and utility space toward non-residential portions of the
project.
The principles underlying SB35 clearly call for a consistent, like -on -like
comparison rather than arbitrary juggling of figures.
As shown in the attachments, neither a net calculation comparing usable space
only, nor a gross calculation including parking and utility space in the residential
and non-residential totals would allow the Application to meet the statutory ratio
requirement.
(2) The Application fails to comply with General Plan requirements which permit
residential use only as part of a vibrant mixed-use environment requiring
commercial use of first -floor project portions. Most of the project falls to provide
this.
(3) The project is located on a site which is included on a list of hazardous materials
sites compiled pursuant to Government Code Section 65962.5 ("Cortese List").
SB35 excludes such projects. Gov. Code 65913.4(a)(6)(E).
Approval of a hazardous materials site is a discretionary decision by a local
government that is NOT preempted by SB35.
(4) The Application relies on easements to be vacated by the City. To do so would
constitute a discretionary act involving subjective policy determinations by the
City and City Council. Accordingly, the easements are not preempted by SB35.
(5) The Application purports to appropriate the entire available "pool" of affordable
units (ca. 400 units at present) and commit units in excess of this number.
5. SB35 Statutory Scheme Sets Extremely Rigid Deadlines
As you will be aware, the statutory scheme is extremely rigid. The strict
deadlines and notice requirements require careful attention by the City lest the City
inadvertently lose control of the process.
Specifically, SB35 (now codified as Gov. Code § 65913.4) provides that a non-
compliant development project is nonetheless "deemed" compliant with the "objective
development standards" set out in that section unless the city issues a reasoned rejection
within the statutory time period of 90 days. Gov. Code § 65913.4(b)(1) and (2).
must
To avoid the result of "deemed" compliance of a non-compliant project, the city
...provide the development proponent written documentation of which standard or
standards the development conflicts with, and an explanation for the reason or
reasons the development conflicts with that standard or standards.
Gov. Code § 65913.4(b)(1).
Given the March 27, 2018 application date, it appears that the 90 -day response
period ends on Monday, June 25, 2018.
6. Action Requested
As previously noted in our letter of June 14, 2018, FBC requests that the City
take IMMEDIATE action to ensure that a notice denying the Application is prepared and
sent to the Applicant forthwith. The notice should include ALL pertinent reasons for the
denial under the SB35 statute, with related "documentation" to ensure those reasons are not
forfeited under the statute. The material contained in the attachments hereto, in this letter
and in related email communications should be of assistance to the City in preparing a
timely and comprehensive denial letter without allowing any arguable grounds for denial to
be forfeited as the 90 -day review period ends.
To repeat, failure to provide the Applicant with a reasoned denial of the
application and related "written documentation" for all grounds of denial would result in
this non-compliant development being "deemed" compliant, thus nullifying the City's own
development planning processes.
Please note that as a matter of law, an informal extension of the time to respond -
even if agreed to by the Applicant - would likely NOT be legally binding. The SB35
statute clearly prioritizes expeditious processing of applications and does not in terms
permit extensions. Similarly, the Applicant could claim that the City's request for an
extension amounted to duress which negates the Applicant's formal consent.
To safeguard the City's interests on an interim basis and to avoid the potential for
last-minute hitches under the rigid timeline under the statutory SB35 scheme, we request
that an initial version of the statutory notice with documentation be completed and sent to
the Applicant no later than
M
With this initial safeguard in place, the City can and should then proceed to
supplement its initial notice of denial on or before the statutory deadline of
Monday, June 25, 2017 or (preferably) earlier.
11
We would be grateful if you could copy the undersigned on any notice of denial
sent to the Applicant.
Attachments: Three (3) attachments as listed above
0
Sincerely,
Bern Steves
WE
CALIFORNIA BUSINFss LAW OFFICE
JUN 19 2018
YEAIL June 19,201$
CUPERTINO CITY CLERK
Mayor Vice Mayor Council Member Council Member --Council Member
Darcy Paul Rod G. Sinks Savita Barry Chang Steven Scharf
Vaidhyanathan
cc: David Brandt, City Manager - manage@cupertino.org
Grace Schmidt, City Clerk - cityclerk@cupertino.org
City Attorney's Office - cityattomey@cupertino.org
Planning Department - planning@cupertino.org
Re: Request to Issue Statutory Notice DENYING Purported 11SB35"
Application by Vallco Property Owner, LLC (3)
Dear Mayor Paul, Vice Mayor Sinks, and Council Members Vaidhyanathan, Chang
and Scharf,
We write on behalf of Friends of Better Cupertino (FBC) and refer to our letter
dated June 18, 2018 with three (3) attachments that was emailed to each of you yesterday.
We further refer to our letter dated June 14, 2018, and to numerous email communications
addressed to the City by Kitty Moore, Randy Shingai and other concerned citizens.
We have not received any official response from the City to our communications
to date despite the extremely urgent nature of the matter.
UPDATED versions of yesterday's attachments are enclosed herewith to assist
the City's task. These updated versions are intended to supersede the previous versions.
1.Requests
FBC repeats and amplifies its earlier request, on behalf of all citizens of
Cupertino, that the City take timely, full and appropriate action in accordance with
applicable law and good administrative practice to DENY the purported "Vallco Town
Center Project Application pursuant to SB 35" dated March 27, 2018 and submitted to the
City with an undated cover letter at an undetermined date ("Application").
Specifically, FBC requests that:
(1) The City Council schedule an emergency session to discuss the City's response to
the Application.
To preserve the City's rights and freedom of action in relation to this massive
project in light of SB35, the Council Meeting should be scheduled on
19925 STEVENS CREEK BOULEVARD #100 E-MAIL: bemsteves@califomiabizIaNv.com
CUPERTINO CA 95014 TEL: 4082536911
Wednesday, June 20, 2018.
(2) The initial notice of denial must include a statement of reasons and supporting
documentation. As a practical approach, FBC's submissions and input from the
City Attorney, land use consultants and outside counsel should be adopted by the
City as its own position and sent to the Applicant no later than:
w7wimmm M -40K11
The notice can later be updated if appropriate provided that the final response
must be sent before the end of the objection period which is
01 r1r,
(3) The City should administer this project in a mature, open manner befitting the
City's status as one of the most advanced and educated cities in an advanced
country.
Attached hereto and incorporated by this reference please find updated versions
of the following supporting documents which we request be immediately posted on the
City's website in the normal manner. The updated versions are intended to supersede the
previous versions emailed to the City yesterday (June 18, 2018).
(1) Application Compliance Topic Chart outlining compliance issues raised by the
Application, arranged by topic.
(2) Statute Compliance Chart outlining compliance issues raised by the Application,
arranged by reference to subdivisions of the SB35 statute.
(3) Written presentation entitled "VALLCO TOWN CENTER SB 35 NON-
COMPLIANCE ISSUES." This document discusses in greater detail a number
of issues raised by the Application, supported by references to the record and to
legal authority.
Please note that while there is some overlap among the aforesaid three (3)
documents, this letter and other communications referred above, each also contains
important content and information that is unique. Full and appropriate review and action by
the City's entire Planning team will be required to capture and fully process the entirety of
the material in the short time available. The City should, of course, err on the side of
including grounds for denial and related materials so as to avoid the undesirable legal
effects (and embarrassment) of, bifeiting grounds of denial at the end of the statutory
period.
0
FBCC reserves the right to institute appropriate legal proceedings against the City
unless the City takes fill, appropriate and timely action to avoid forfeiting its planning
authority through the default provisions of 5835.
Sincerely,
Bern Stever
Attachments. Three UPDATED (3) attachments as listed above, superseding earlier
versions.
3
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I
;I 4LJ 8VALLCO TOWN CENTER SlNON-COMPLIANCE ISSUES
JUNE 1.8, 2018
FRIENDS OF BETTER CUPERTINO
Figures
._ ...... ^,_,.,~___~,,-...... ._.___,~_,_^,_^...... ...... ....... _.—~.._..---........ ~—...... .... .._2
'Tables ... ....... ____ ......... --._''......... _~--............................ ..... ___ ......... ....................................... .... 5
Introduction. ... —........ .—_.----'~—~~...... .............. ...... ....................... ................ —.................... ............ 7
ProjectDescription ....... ......... .............. ...................... ....................... ...................... ...... —.... ... ......... .... 7
Summary of issues bzVaDooS835 ......... _...... ..... ................................ ......... 9
L Applicant Plans' Mezuda1uIndicates Late Submittal mfPlaus........................ ................ ._........ —^..... 9
IL SB35Site ouHazardous Materials List: Not Compliant ...... --.......... ......... .._........ ....... ___ ......... lO
Vallco Special Area DEIR Indicates Project ooList mfHazardous Materials Sites Pursuant to Gov. Code §
65062.5 ............................... .................. ...... ......................... ........ —._.......................... ---..........
—'D
IIISB]5Zoning Not Compliant ..... ... ... ................ ........ ..—......... ....... _...... ..... --_1l
SD35Application Must follow General Plan —oo specific plan can herequired ......... ........................ '.... l2
Cupertino General Plan Zoning ................. ____ .............. ............. ____ ....................................... —... —.... l3
KV. S035 2/3 Residential Sgourc Not Compliant ...... ....... ......................... —...... l5
V. GP Objective Standard For Ground Floor Retail: Not Compliant -----------'--------23
VI. Test Excluding Concessions: Not Compliant .............. ..................................... ............ .... 24
Density BouuaimoutAlbwuble—Excoods BlRStudied Totals .................................. '.... ....... 25
Three Concessions Requested by Applicant ... ....... .............. ___ .............. ~----_~--....... ............. 28
Floor Plans ofBMR and Market Rate Units: Not Equivalent .......... —._—.................................... —...... 43
Floor PlanoofMurknRateDuits—DoNot Match Below Market Rate Units in Size orNumber of
lX Park Land Requirement not Met buVallcmSB35.......................... ........ ........................ ...... ......... .66
General Plan FIR Population Multiplier io%.Q4Persons per Household .......................................... ........... 66
Cupertino Municipal Code for park land dedication ...... ........ ................ ....... —... ...... .......................... 60
X. S035: Previous GPConflict with Plan :Nut Compliant ............... .......................... ......... ...... 7O
XI SB35Objective Standard for Transit Hub Not --...... .—.... .......... ._—.----_—..--.T%
XD. Fbuuuobal Analysis for I]Q[JConcessions Not —... ............ ........... --........ 73
XIII. \/oDooSB35Violates State Density Bonus Law and Housing Accountability Act- Adverse
Impacts� — See \/oDooDB0R.......... ......... ..... --....................................... ............. ...... ... ..... .................... 74
\/aKoo Specific Plan Draft Environmental Impact Report Summary ... .--....... —~_........ '.......... ...... ... 75
XIV, Objective Standard for Protected Tree Removal: Not Compliant ........... __—_--__—....... ....... 80
X3/ Easements Not Ministerially Created or\/aootod—....... '...... ''.... ......................... .............. ......... 86
Table and Plan View o[Easements ...... ...... ......... ...... ............ --........ ...... ..................... —............. '#6
Roadway Easement RccododJuly 2y`lQ75,Qb526974,No. 50587l4ofSCC records ............... ............ 8Q
Roadway Easement Blocks Underground Parking Structure Below It ...... —...... ...................... ............. 93
Planning Commission and City Council May Reject Tentative Muo......... ............ .......... ............... -_... 94
XVII. SobdivioioonMuoAc{—Not Compliant ._.—.—'—-
Xl/D[ Tentative Map and Civil Engineering Plans Show Nonexistent Existing Driveway, and Do8o
Benefit of Including allooeristeut Driveway., ......... --- ....................... ............... ................. .............. -lO6
Plans BySame Civil Engineer and Surveyor Show Correct Driveway '_................................................
Subdivision Map Act Gov. Code §66477 Act; Park and Recreational ---------1l9
XD{. Project Application Claims CMC Does not Administer BMR _...... —... —........... ......... .119
XX. Plan Alternative imuSecond Plan, Incomplete For flev6ew'............ ....... ........... —........... ........... l2I
Figure 6:Land Use Table LU- l,G9-2014.--.......... ..................................... ........................... _.............. ,27
Figure8:GouodFloor, No8M8o..................... ..... ......... ... .—.......................... _`................ ................ ... 32
Figure9:2nd Floor, NoBMRe.... ....... ................ .... ............. ............. .-_.................. ...... --- .... ......... 32
Figure l[L3rd Floor, BMDubuMiddle Portion ofFloor .................. ....................... ........... --........... ....... 39
Figure 1l:4th Floor, 8MRsiuMiddle Portion ofFloor ............. ...... -........... —.............. ._._... .............. 33
)Pi�zuro|2: 5th Floor, BMf6yinMiddle Portion o[Floor. .................. ................ ~_—........................... --- .... .34
Figure l3:6th Floor, BU0RoioMiddle Portion m[Floor ...... --- ............ --- .... —....... --.... ............ ........... —^34
' 2
/
'
Figure 15: 8th Floor, BMRs in Middle Portion of Floor ...... .............. ..........................................................
35
Figure 16: 9th Floor, BMRs in Middle Portion of Floor ....... ....................................... .......................... - ..........
36
Figure17: 10th Floor, No BMRs.. ... . ....................................... ................... ....................... ............... — ....... -
36
Figure18: 11th Floor, No BMRs ..........................................................................................................................
37
Figure 19: 12' floor — "Terrace Level 01" no BMRs....................... ................... - ............ .......... ............ ...
37
Figure 20: 13th floor — "Terrace Level 02" no BMRs .............. -- ................... ...................................................
38
Figure 21: 14th floor — "Terrace Level 03" no BMRs ............... .............. ........... - ......................... ......... ..........
38
Figure 22: 15th floor — "Tower Level I" no BMRs, has swimming pool .............................................................
38
Figure 23: 16th floor - "Tower Level 2" no BMRs ...............................................................................................
39
Figure 24: 17th floor — "Tower Level 3" no BMRs ....................................... ........................................... ..........
39
Figure 25: 18th floor — "Tower Level 4" no BMRs ......................................... .................................. — ...............
39
Figure 26: 19th floor — "Tower Level 5" no BMRs ................ ........................................................................ - —
40
Figure 27: 20th floor — "Tower Level 6" no BMRs . ............... — ........... ..... .............. — ..... .... -- ....... .................
40
Figure 28: 21st floor — "Tower Level 7" no BMRs .................. ............. --- ......................................................
40
Figure 29: 22nd floor — "Tower Level 8" no BMRs ......... ......................................................... .....................
41
Figure 30: 23th floor — "Tower Level 9" no BMRs ....... ....................................... ..............................................
41
Figure31: 24th floor — Green roof ................................................................................... — ..................................
41
Figure32: BMRs Typical Location... ................. ......................................... ............................................... .......
42
Figure 33: BMR Studio, SB 35 Architectural Plans, 388 SF .............. ........................................... ....................
44
Figure 34: BMR I Bedroom: 528 SF (vs traditional size market rate IBR: 863 SF, I BR loft size 1085 SF)..
45
Figure 35: Traditional (TRD) "Market Rate" Studio: 620 SF........................................................... ................
46
Figure 36: TRD "Market Rate" One Bedroom Unit: 863 SF .................... ................ ....... ...... ............... .47
Figure 37: Two Story One Bedroom Loft "Market Rate" 1085 SF ........... ..................................................... 48
Figure 38: 2 BR Market Rate TDR unit 1117 SF ....... ....................... - .... ................ — ........................... ...... 49
Figure 39: 5 BR Market Rate Co -Housing, 2,015 SF —.— ................................................................................... 50
Figure 40: Market Rate 4 BR Townhouse: 2,310 SF ............................. ............................................... ............ 51
Figure 41: Market Rate 3 BR Townhouse, 1,923 SF ................. ................. ...................... -- ............ ......... ..... 52
Figure 42: Market Rate 2 BR Townhouse, 1,539 SF- ........................... ........................... ............ .................... 53
Figure 43: Market Rate 2 BR Loft 1,395 SF; Market Rate 3 BR Loft 1705 SF .................................................. 54
Figure 44: Market Rate 4 BR Loft 2,170 SF ................ ....... ............ ......... .................... ............... — .... . 55
Figure 45: Market Rate 4 BR Terrace unit 2,177 SF - ............. -- ..... ................ -- ........................................... .56
Figure 46: Market Rate 3 BR Terrace unit 1842 SF ............. I ................... - .................................... .................. .57
Figure 47: Market Rate 2 BR Terrace unit 1,508 SF ....... .................... ................................. ....... ....... 58
Figure 48: Market Rate 3 BR Tower unit 1,712 SF, Market Rate 4 BR Tower unit 2,255 SF ............................ 59
3
Figure 49: Market Rate 2 BR Tower unit 1,424 SF ............................................................................................ 60
Figure 50: Market Rate 6 BR Full Tower unit 4,646 SF .................................. .................................. ................
61
Figure 51: VTC SB 35 Project Description Part 4, p. 1, PDF 9, Retail Reduction Justification Letter Excerpt. 64
Figure 52: Retail Reduction Justification Letter ..................................................................................................
65
Figure 53: VTC SB 35 Application Park Land Total Incorrect with 2.83 residents/unit .....................................
67
Figure 54: VTC SB 35 Site Plans: Private Residential Open Space, Public Green Roof Park Space ................
67
Figure 55: CMC 13.08.050 Park Land Dedication ..... - ..... ..............................................................................
_ 68
Figure56: Roof Too Sloped .... ......... .............. .............. .......... ........ ................. ....................................
70
Figure 57: County Assessor's Map, Vallco Area ........ ......... ............. ................................... ................... ........
71
Figure58: Air Easement, 26 .......... ........................................ .................................... ...................... ...........
72
Figure 59: VTC SB 35 Site Plans P-0101, Tree Removal/Replacement - Remove 475 Trees, Relocate 6
SpecimenTrees ................ ............................ ............ __ ............................. ...................................................
81
Figure 60: Vallco Fashion Park Planting Plan & Details, Wurster, Bernardi and Emmons, Inc. Architects,
August6, 1975, Slit. L -I I .............................. ....... ........................................................... ............ .....................
83
Figure 61: VTC SB 35 "Landscape Lighting and Signage" Planset, "TREE DISPOSITION PLAN - EXISTING
PLANTING - STREET LEVEL", P-0602 — Gray colored street trees to be removed . ........................................
84
Figure 62: Google maps Sears Parking Lot ............. ..........................................................................................
85
Figure 63: Easement Table from VTC SB 35 Civil Drawings Part 1: P-0306 .....................................................
86
Figure 64: VTC SB 35 Civil Drawings Part 1: P-0306, Existing Easements .......................................................
87
Figure 65: Google Map Roadway Easement ........................................................................................................
88
Figure 66: Roadway Easement Recoded July 29, 1975, Bk 526 P 74, No. 5058714 of SCC records .................
89
Figure 67: VTC SB 35 Civil Plans Part I P-0306, Existing Easements ..............................................................
91
Figure 68: Vallco Roadway Easement Various Plans ..........................................................................................
92
Figure 69: Site Plans P -0202A, PDF 8 ..................................................... ........................................................
_ 93
Figure 70: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8 .............................
_ 95
Figure 71: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8 ................................
96
Figure 72: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8 ................................
96
Figure 73: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8 ................................
97
Figure 74: VTC SB 35 Civil Plan Set 1: Existing Surface Contours, N. Wolfe Rd., P-0302 (North is to left)..
97
Figure 75: As -Built Wolfe Rd, Street Plan (Curb Line) 1/3 .................. ___ ..... ..................... .....................
98
Figure 76: As -Built Wolfe Rd. Street Plan (Curb Line) 2/3 .............. ......................... ................. ....... .............
99
Figure 77: As -Built Wolfe Rd. Street Plan (Curb Line) 3/3 . ......................... ................................. __ ........
100
Figure 78: GPA -2015, LU -1 Community Form Diagram ........................... ......................................................
101
Figure 79: GPA -2015, Building Planes 1:1, Expanded View of LU -1: Community Form Diagram ...............
101
Figure 80: Unofficial GP -2015, Figure M-2, Circulation Network .. . ............................ .............................. ....
102
0
Figure 81: Building Section, Architectural Plans Part 3, P-0831, indicates 1:1 setback lines, . ....................... - 103
Figure 82 Building Section, Architectural Plans Part 3, P-0831, Walkway over N. Wolfe Rd. Reference lines do
notmatch up ... .................... .......... .................... .............. ............... -- ........ --- ..... ........................... .... 104
Figure 83: Google Maps Street View - Single Driveway .... -- ............. -- ... ...... ... -- .......................... 106
Figure 84: VTC SB 35 Civil Drawings Part 1, Existing Parcels, P-0303 ......... ............ .................................107
Figure 85: Nonexistent Driveway, Existing Surface Plan, P-0301 .............. ...... ......... ....... ...................... - 108
Figure 86: Nonexistent Driveway on Tentative Map TM 2.8 - Annotated View .......... -- .......... .....................109
Figure 87: Nonexistent Driveway on Civil Engineering "Existing Surface Contours" P-0302 of plans —
AnnotatedView .............. ................ ......... ..................... -- ................. ................... ................. ................. 110
Figure 88: Compare Nonexistent Driveway (SB 35 "existing") to Proposed SB 35 Plan, and Actual Driveway
Locations: "Actual" location is illustrative and requires a survey to verify . ................................... ............... . 111
Figure 89: Google Map vs. SB 35 P-0302 Existing Surface Contours Plan with Nonexistent Driveway .........112
Figure 90: Nonexistent Driveway, Existing Surface Plan, P-0301 Expanded View — Nonexistent Driveway.. 114
Figure 91: VTC SB 35 Existing Parcels — Nonexistent Driveway ........................................... --- ................ 115
Figure 92: VTC SB 35 Existing Offsite Rights, P-0305 — Nonexistent Driveway .... — .... .... ......... ......... 116
Figure 93: Tentative Subdivision Map Vallco Town Center Existing Public and Private Easements and
Boundaries - Does NOT show nonexistent driveway ........... -- .................................... .................. .................. 117
Figure 94: Expanded View of TM 6.8 — (Notice the driveway is drawn correctly — see light lines, heavier lines
areproposed) .... .......... -- ..................... — ............ ............................ -- .................... ................ ......... 118
Figure 95: VTC SB 35 Application, Vallco Town Center Project Description City Standards Consistency
Analysis, p. 55, PDF 80 ...................... .................. ........ ............. - ........ - ..................... -- ....... .............. — ....... 120
Figure 96: Master Site Plan - Street Level.... ......................... ---- ... ........................ - ........... ............ ............. 121
Figure 97: Master Site Plan - Street Level, expanded view ... ........ .............. ..... - .............. ......... ............. 122
Figure 98: Master Site Plan - Street Level - Alternate . ...... ...... — ...................... - .................. ......... ................. 123
Figure 99: Master Site Plan - Street Level - Alternate, expanded view .... ...... ................................ .............. . 124
Figure 100: Alternate Proposed Public Utility and Access Easements.. ................. ..... -- ...................... — ..... — 125
k,
Table l0:\/uDoo[)EIR Summary of Project and Alternatives ....... ......... .......................................................... 76
Table 11: Comparison uf8B35Plan toProjects studied iovarious ElRo.... ...... .............................. ................ 77
Table I2:DBIRHealth Effects of Air Pollutants ............................................ ....... ........................ ........... ...... 79
6
The Vallco Town Center (VTC) SB 35 application was submitted by the Valleo developer with an undated
cover letter. The City's website states that the application was submitted on March 27, 2018, but some parts of
the application were accepted by the City on or after March 29, 2018.
This document demonstrates numerous non-compliance issues affecting the application, including failure to
meet "objective" preconditions.
As Friends of Better Cupertino advised the City in a letter dated June 14, 2018, failure by the City to issue a
timely notice detailing and documenting those items of non-compliance within 90 days would result in those
objections being forfeited, thus effectively locking the City out of significant parts of the process.
To date, the city has failed to respond to any communications advising of these non-compliance issues, and has
not given any public indication as to whether the plan is compliant. The inaction of pertinent departments and
individuals is extremely puzzling.
The VTC SB 35 site consists of 50.82 acres of land in total on the east and west side of Wolfe Rd. adjacent to
and south of the 1-280 freeway. The site is currently a 1.2 Million square foot mall with Bay Club Gym,
BowlMor lanes, Ice Rink, Starbucks Coffee, and Dynasty Restaurant still in operation. The site is used as a
transit hub for park and ride use for various technology companies. Additionally the site is used for new car
storage.
The western portion of the project site, west of North Wolfe Road, is developed with several buildings:
a three-story (approximately 85 foot tall) mall building, two single -story (approximately 25 feet tall)
satellite buildings, three multi -story (two- and four -level, up to 50 feet tall) parking structures, and
surface parking lots. The eastern portion of the project site, east of North Wolfe Road, is developed
with an additional two-story (approximately 60 foot tall) mall building, a single -story satellite restaurant
building, a three-level (approximately 60 foot tall) parking structure, and surface parking lots. The two
sides of the project site are connected by an enclosed, pedestrian bridge which includes shops on either
side of a pedestrian walkway.
A five -story (60 foot tall), 148 -room hotel is currently under construction at the north end of the eastern
portion of the site (Hyatt House Hotel). Perimeter Road, a two-lane roadway, is located along the west,
north, and east boundary of the site. Two landlocked lots (Hyatt House Hotel and the Simeon property)
have public access to Wolfe Road via public access casements from Perimeter Road.
As shown in General Plan Table LU -1, the General Plan development allocation for the Vallco Special
Area is as follows: up to a maximum of 1,207,774 square feet of commercial uses (i.e., retention of the
existing mall) or redevelopment of the site with a minimum of 600,000 square feet of retail uses of
which a maximum of 30 percent may be entertainment uses (pursuant to General Plan Strategy LU -
19.1,4); up to 2.0 million square feet of office uses; up to 339 hotel rooms; and up to 389 residential
dwelling units.5 Pursuant to General Plan Strategy LU -1.2.1, development allocations may be
transferred among Planning Areas, provided no significant environmental impacts are identified beyond
those already studied in the Cupertino General Plan Community Vision 2015-2040 Final EIR
(SCH#2014032007) (General Plan EIR),6 Therefore, additional available, residential or other,
development allocations may be transferred to the project site. .L p 7 PDF 43)
0
The VTC SB 35 project submitted consists of.
0 1.81 Million SF office
• 3.4 Million SF office and retail subterranean parking
0 400,000 SF retail
• 2,402 residential units
* 2.2 Million SF actual apartments
* 2.5 Million SF residential amenities which include internal, above ground
parking garages ringed with apartments
Total size of project: approximately 10.3 Million square feet. For reference, Apple Park is 5.9 Million SF
(including parking) on 176 acres.
Table 1: Aerial Photograph of Project -VTC SB 35 area in green, Apple Park in NE corner
p 6 PDF 42)
8
1, Applicant Plans' Metadata Indicates Late Submittal of Plans
11. SB 35 Site on Hazardous Materials List: Not Compliant
111. SB 35 Zoning Requirement: Not Compliant
IV. SB 35 2/3 Residential Square Footage Requirement: Not Compliant
V. GP Objective Standard For Ground Floor Retail: Not Compliant
VI. SB 35 Compliance Test Excluding Concessions: Not Compliant
VII. Number of Dwelling Units inconsistent with Table LU -1 — Excessive
VIE. SB 35 Density Bonus Concessions: Not Compliant (Exceeds Maximum)
IX Vallco Park Land Requirement not Met in Vallco SB 35
X. Previous GP Conflict with Plan Heights: Not Compliant
XI. Provide Transit Hub Per GP: Not Compliant
XII. Financial Analysis for Density Bonus Unit Concessions
XIII. Protected Tree Removal: Not Compliant
XIV. Easements not Ministerially Created or Vacated
XV. Subdivision Map Act — Not Compliant
XVI. Application Claims CMC does not Administer BMR Program Under SB 35,
xvll. Plan Alternative is a Second Plan, Needs a separate submittal and review.
1. APPLICANT PLANS' METADATA INDICATES LATE SUBMITTAL OF PLANS
SB 35 requires the City to inforni. the Applicant whether their application is consistent with local objective
standards within certain time limits, for VTC SB 35, the time limit is 90 days. The 'clock' starts when the plans
are submitted. VTC is not compliant with SB 35 because several files were created and submitted after the
initial application 'clock' started. Ca. Gov. Code § 65913.4 (b)(1)(B).
The PDF file format contains timestamps for content creation and for the content's last modification. These
timestamps do not change when the file is copied or transmitted. The timestamps are kept separate from the
file's data content, and are what is known as "metadata-" These timestamps can be displayed using Adobe's
Acrobat Reader. The last modified tiniestamp in many of the Project files show that these files could not have
been submitted before the close of business on March 27, 2018, the date that the Application package was
putatively submitted. In particular, the City could not have received the file, ArchitecturalPlansPart3.pdf, before
March 30, 2018, because it was last modified after the close of business on the previous day, March 29, 2018.
The metadata of the PDF files submitted include several after the application was 'officially' submitted. This
indicates a new submittal date of 3/29/2018, not 3/27/2018. It is alarming that the city accepted late filing of
plans in such a high profile SB 35 project. At the very least, the application submission date must be changed to
reflect the last document added to the plans after the submittal date,
a
Table 2: Late Filing Metadata
VaBco Town Center SB 35 Project Application File Name and Metadata
Component files modified after SPM, March 27, 2018
Filename
Date Created
Time Created
Date Last
Time Last
Modified
Modified
3/28/2018
3.52:35 PM
3/28/2018
3:52:35 PM
Renerings.pdf
VaI1coSB35Pr0JectDescriptipdf (1)
3/27/2018
9:15.59 PM
3/27/2018
9:15.59 PM
VallcoS13351'rojectl3escriptipff (2)
3/27/2018
9:16-00 PM
3/27/2018
9:16.01 PM
VallcoS13351'rojectl3escriptipff (3)
3/27/2018
9:16:06 PM
3/27/2018
9:16:07 PM
VallcoSB35PrqjectDescriptipdf (4)
3/27/2018
9:16:09 PM
3/27/2018
9:16:09 PM
SitePlans.pdf
3/28/2018
3:53:19 PM
3/28/2018
3.53:19PM
SiteDiagrams.pdf
3/28/2018
3:55:06 PM
3/28/2018
3.55:06 PM
ArchitecturalPlansPartl.pdf
3/28/2018
5:54-38 PM
3/28/2018
5.45:38 PM
ArcbitecturalPlansPart2.pdf
3/28/2018
5-46:36 PM
3/28/2018
5.46-36 PM
ArchitecturalPlansPart3.pdf
3/28/2018
5:37:26 PM
3/29/2018
10:26:26 PM
ArchitecturalPlansPart4.pdf
3/28/2018
535:19 PM
3/28/2018
5:35:19 PM
CiviWlansPartl.pdf
3/28/2018
5.43:52 PM
3/28/2018
5-43:52 PM
CivilPIansPart2.pdf
3/28/2018
5.4434 PM
3/28/2018
5.4434 PM
Landscape'�andsingpl.pdf
3/28/20181
3:55:52 PM J
3/28/20181
3:55:52 PM
Source: Adobe Acrobat Reader DC Version 2018.011.20020
11. SB 35 SITE ON HAZARDOUS MATERIALS LIST: NOT COMPLIANT
The Project does not comply with the criteria of SB 35, in that the site is listed as a hazardous waste site and
thus does not comply with Gov. Code § 69513.4(a)(6)(E).
Gov. Code § 69513.4(a)(6)(E):
(a) A development proponent may submit an application for a development that is subject to the
streamlined, ministerial approval process provided by subdivision (b) and not subject to a conditional
use permit if the development satisfies all of the following objective planning standards:
(6) The development is not located on a site that is any of the, following.
(E) A hazardous waste site that is listed pursuant to Section 65962.5 or a hazardous
waste site designated by the Department of Toxic Substances Control pursuant to
Section 25356 of the Health and Safety Code, unless the Department of Toxic
Substances Control has cleared the site for residential use or residential mixed uses.
ME
VALLCO SPECIAL AREA DEIR INDICATES PROJECT ON LIST OF HAZARDOUS
MATERIALS SITES PURSUANT TO GOV. CODE § 65962.5
"Impact HAZ-2: The project (and project alternatives) is located on a site which is included on a list of
hazardous materials sites compiled pursuant to Government Code Section 65962.5;" See Draft Environmental
Impact Report,for Vallco Specific Plan Special Area, SCH# 2018022021, p. 143, PDF 179,
or 1_ _�t.�oNA-(Io.c-uiiient'i..d--20..88-7.
Ministerial approval of a site on the Cortese list is beyond the scope of SB 35 and would be a subjective
decision on an environmental matter regarding hazardous materials.
111. SB 35 ZONING REQUIREMENT: NOT COMPLIANT
The Project does not comply with the criteria of SB 3 5, in that the site is not zoned for housing according to
Gov. Code § 65913.4 (a)(1)(C).
Per SB 35, Gov. Code § 65913.4 (a)(1)(c):
(C) A site that is zoned for residential use or residential mixed-use development, or has a general plan
designation that allows residential use or a mix of residential and nonresidential uses, with at least two-
thirds of the square footage of the development designated for residential use. (S -B 1.5 -Lm-&)
And SB 35, Gov. Code § 65913.4(a)(5)(B):
(5) The development, excluding any additional density or any other concessions, incentives, or waivers
of development standards granted pursuant to the Density Bonus Law in Section 65915, is consistent
with objective zoning standards and objective design review standards in effect at the time that the
development is submitted to the local government pursuant to this section. For purposes of this
paragraph, "objective zoning standards" and "objective design review standards" mean standards that
involve no personal or subjective judgment by a public official and are uniformly verifiable by reference
to an external and uniform benchmark or criterion available and knowable by both the development
applicant or proponent and the public official prior to submittal. These standards may be embodied in
alternative objective land use specifications adopted by a city or county, and may include, but are not
limited to, housing overlay zones, specific plans, inclusionary zoning ordinances, and density bonus
ordinances, subject to the following:
(A) A development shall be deemed consistent with the objective zoning standards related to
housing density, as applicable, if the density proposed is compliant with the maximum density
allowed within that land use designation, notwithstanding any specified maximum unit
allocation that may result in fewer units of housing being permitted.
(B) In the event that objective zoning, general plan, or design review standards are mutually
inconsistent, a development shall be deemed consistent with the objective zoning standards
pursuant to this subdivision if the development is consistent with the standards set forth in the
general plan. (SB 35 J-aw)
The Cupertino General Plan Community Vision 2015-2040. October 20, 2015 (GP) states quite clearly that the
site is zoned Planned Development with Regional Shopping and Commercial (P[Regional Shopping and P[CG])
housing only becomes allowable when a Specific Plan is adopted, additionally, no Specific Plan has been
adopted as of May 31, 2018 which means there would be hearings considering the removal of Vallco as a
Priority site:
11
"...zoned Planned Development with Regional Shopping and Commercial (P[Regional Shopping and
P[CG]). Strategy I provides that the City will adopt a Specific Plan for the Vallco site by May 31, 2018
that would permit 389 units by right at a minimum density of 20 units per acre. The zoning for the site
would be modified as part of the Specific Plan process to allow residential uses as part of a mixed-use
development at a maximum density of 35 units per acre. If the Specific Plan is not adopted, the City will
schedule hearings consistent with Government Code Section 65863 to consider removing Vallco
Shopping District as a Prioirty Housing Site and replacing it with the sites shown in Scenario B."
The applicant states that no Specific Plan is needed, therefore, no housing is allowable. This is consistent with
the General Plan,
The SB 35 law, Gov. Code § 65913.4(a)(5)(A) states:
(a) A development proponent may submit an application for a development that is subject to the
streamlined, ministerial approval process provided by subdivision (b) and not subject to a conditional
use permit if the development satisfies all of the following objective planning standards:
(1) The development is a multifamily housing development that contains two or more
residential units.
(A) A development shall be deemed consistent with the objective zoning standards
related to housing density, as applicable, if the density proposed is compliant with the
maximum density allowed within that land use designation, notwithstanding any
specified maximum unit allocation that may result in fewer units of housing being
permitted. (S1335 ,,, 65913.4(a)(5)(A))
_tq�
Vallco site has no current housing density, because it is not zoned for housing.
SB 35 APPLICATION MUST FOLLOW GENERAL PLAN — NO SPECIFIC PLAN CAN BE
REQUIRED
Vallco Town Center S13 35 Development Application pp. 4-5 PDF 4-5:
The Project site is currently Zoned P(Regional Shopping) and P(CG). Planned
Development zoning districts are tailored to a specific program or project, which in this
case is the existing mall. Because the zoning contemplates the existing mall, and the
General Plan calls for a complete redevelopment of the larger site with a mix of uses,
the zoning is inconsistent with the General Plan. In accordance with SB 35, because the
General Plan and zoning standards are inconsistent, only the General Plan standards
apply. See Section 3: Consistency with Objective City Standards and Appendix B:
Objective Standards Consistency Analysis.
SB 35 cannot require the adoption of a Specific Plan. A Specific Plan is unquestionably a
subjective discretionary legislative action under California law,1 and thus adoption of a
future undefined Specific Plan cannot meet the definition of an "objective planning
standard" under SB 35,
The 389 residential unit allocations set forth in General Plan Table LU -1 are inapplicable
to the Project because SB 35 states that density is determined by the "maximum density
allowed within that General Plan land use designation, notwithstanding any specified
maximum unit allocation that may result in fewer units of housing being permitted."
M
Footnote "1" referred to in the above excerpt from Valleo Town Center SB 35 Development Application p. 5
PDF 5:
i See Yost v. Thomas, 36 Cal. 3d 561, 570 (1984) (the adoption of a Specific Plan, like a general plan, is
a legislative action); see also California Government Code Section 65453.
The General Plan clearly states that the Vallco site is not zoned for residential, and that residential only becomes
allowable with the adoption of a Specific Plan. Without the Specific Plan, which the application insists they
cannot be required for SB 35, the site is not allowed housing.
CUPER'n-.w GENERAL PLAN APPROVED DECEMBER 4, 2014, AMENDED OCTOBER 20,
2005:
GP -2014: The Cupertino General Plan 2040: Cupertino Community Vision 2040 (Dec. 4, 2014), Appendix B:
Housing Element Technical Report, and Amendments to Community Vision 2040 Resolution No. 15-087,
October 20, 2015, p. B-149-141, PDF 139-141:
Site A2 (Vallco Shopping District)
The site is designated Regional Shopping/Office/Residential B-141 Appendix B Housing Element
Technical Report HCD REVIEWED DRAFT HOUSING ELEMENT in the General Plan and zoned
Planned Development with Regional Shopping and Commercial (P/Regional Shopping and P[CGJ).
Strategy I provides that the City will adopt a Specific Plan for the Vallco site by May 31, 2018 that
would permit 389 units by right at a minimum density of 20 units per acre. The zoning for the site
would be modified as part of the Specific Plan process to allow residential uses as part of a mixed-use
development at a maximum density of 35 units per acre. If the Specific Plan is not adopted, the City will
schedule hearings consistent with Government Code Section 65863 to consider removing Vallco
Shopping District as a Prioirty Housing Site and replacing it with the sites shown in Scenario B.
Strategy 1, GP -2014: The Cupertino General Plan 2040: Cupertino Community Vision 2040 (Dec. 4, 2014),
Chapter 4: Housing Element, p. HE 21-22, PDF 21-22:
Strategy 1: Land Use Policy and Zoning Provisions. To accommodate the Regional Housing Needs
Allocation (RHNA), the City will continue to:
• Provide adequate capacity through the Land Use Element and Zoning Ordinance to
accommodate the RHNA of 1,064 units while maintaining a balanced land use plan that offers
opportunities for employment growth, commercial/retail activities, services, and amenities.
• Monitor development standards to ensure they are adequate and appropriate to facilitate a range
of housing in the community
• Monitor the sites inventory and make it available on the City website.
• Monitor development activity on the Housing Opportunity Sites to ensure that the City
maintains sufficient land to accommodate the RHNA during the planning period. In the event a
housing site listed in the Housing Element sites inventory is redeveloped with a non-residential
use or at a lower density than shown in the Housing Element sites inventory, ensure that the
City has adequate capacity to meet the RHNA by making the findings required by Government
Code Section 65863 and identifying alternative site(s) within the City if needed.
IN
• Priority Housing Sites: As part of the Housing Element update, the City has identified five
priority sites under Scenario A (see Table HE -5) for residential development over the next
eight years. The General Plan and zoning designations allow the densities shown in Table HE -
5 for all sites except the Vallco Shopping District site (Site A2). The redevelopment of Vallco
Shopping District will involve significant planning and community input. A specific plan will
be required to implement a comprehensive strategy for a retail/office/residential mixed use
development. The project applicant would be required to work closely with the community and
the City to bring forth a specific plan that meets the community's needs, with the anticipated
adoption and rezoning to occur within three years of the adoption of the 2014-2022 Housing
Element (by May 31, 2018). The specific plan would permit 389 units by right at a minimum
density of 20 units per acre.
If the specific plan and rezoning are not adopted within three years of Housing Element adoption (by
May 31, 2018), the City will schedule hearings consistent with Government Code Section 65863 to
consider removing Vallco as a priority housing site under Scenario A, to be replaced by sites identified
in Scenario B (see detailed discussion and sites listing of "Scenario B" in Appendix B - Housing
Element Technical Appendix). As part of the adoption of Scenario B, the City intends to add two
additional sites to the inventory: Glenbrook Apartments and Homestead Lanes, along with increased
number of permitted units on The Hamptons and The Oaks sites. Applicable zoning is in place for
Glenbrook Apartments; however the Homestead Lanes site would need to be rezoned at that time to
permit residential uses. Any rezoning required will allow residential uses by right at a minimum density
of 20 units per acre.
■
Site A2 (Vallco
Shopping District)
Site A3 (The Oaks
Shopping Center)
Site A4 (Marina Plaza)
P(Res)
Vallco Park
RS/O/R
Vallco
P(Regional Shopping)
Shopping
& P(CG)
District
C/R
Heart of
P(CG, Res)
the City
C/O/R
Heart of
P(CG, Res)
the City
M
BE
35
locations ; ovv net
height to be determined
in Vallco Shopping 389
District Specific Plan
45 ft
200
45 ft 200
Site AS (Barry Swenson) C/O/R Heart or
P(CG, Res) the City 25 45 ft 11
Total 1,400
N.t,s Z—mq fo, SaA2 d�t—&-,dby bp—£r N— teSete Al fH-1Pt-1) hght 1 -if t160 f -tis
&Appl,.C—p-2site.
14
The Project does not comply with the criteria of SB 35, in that the 2/3 residential square footage is not met by
objective calculations. Gross and Net square footage calculations are 46% and 54% respectively, and do comply
with SB 35, Gov. Code § 65913.4 (a)(1)(C).
The Applicant seeks to circumvent the clear intent of SB35 by resorting to inconsistent criteria for the
calculation of residential and non-residential floor -space, respectively.
SB35 itself clearly requires a like -on -like calculation of floor space to derive the statutory floor space ratio.
Instead, Applicants artificially inflate the residential floor space by including most parking and utility space in
the residential total, but excluding parking and utility space entirely from the calculation of non-residential
totals. This makes a mockery of the SB35 requirements.
Whether calculated on a gross basis (i.e., consistently including the parking and utility floor space), or on a net
basis (i.e. consistently excluding parking and utility floor space), the Applicants fail to meet the statutory 2/3
floor space ratio.
As detailed below, the Applicant's methodology is also also inconsistent with the California Building Code, and
with pertinent provisions of the Cupertino Municipal Code.
According to the Applicant, because the residential portion of the proposal was claimed to be 4,700,000 sq. ft.
(when the actual apartments themselves only total 2.2 Million SF) and the residential portion would comprise
68% of the total square footage of the development, the development qualifies for SB 35, Gov. Code § 65913.4
approval streamlining.
The Applicant claims the project contains 4,700,000 sq. ft. of residential, 400,000 sq. ft. of retail, and 1,8 10,000
sq. ft. of office space. The Applicant includes unequally distributed shared amenities such as the two story
walkway over Wolfe Rd. only for the residential total (despite this structure connecting a residential building to
an office building), large unexplained windowless areas on the top floor of each interior area of the residential
units, and all of the above ground interior parking garages in their residential square footage totals as amenities.
Office and Retail parking, which is all subterranean, totals 3.4 Million SF and is not included in the totals for
non-residential. The totals for non-residential also exclude underground utility and infrastructure spaces.
The Applicant's claim is incorrect, because the residential calculation is based upon a inconsistent and
statutorily improper application of the Floor Area Ratio calculation method and definition of "floor area" found
in CMC § 19.08.030 and contain an error when used in the context of SB 35: office is no longer a conditional
use.
The following screenshot with added notations is from the Vallco SB 35 Site -Plan
ILI
Figure 1: Screenshot of Valko SB 35 Site Plan Parking and Square Footage Totals, annotated version
N K 100 S I
�Y-, "If T �RRAS. Olst, CO 4 SOAC CIA*
A'A'kv fl-kkx, PRam"""t 11.11 C 9 1 i4tu� "Ce 1541
AT11U V�
7, R,
A
t '4A.. 01 f S t Vl "'W"A' kvi.+ t I X.' 4' f AMf "em"';" 'C"t,"41 v ""0", W, """"""S, 1";# u,%ce",
Of"M LAW 6*13
The reference to "Residential, retail, parking," in Figure 3, it implies that the gross square feet includes retail
parking, but the gross square footage, SF, does not include any retail parking. Retail parking is all subterranean.
The Underground Structures on the east and west properties do not contain any residential and no office and
retail parking is included at ground level or above (in internal parking garages).
The Application does not comply with SB 35, because its "designated for residential use" calculation uses this
definition of "floor area" found in CMC § 19.08.030 and ignores the implications of SB 35:
"Floor area" means the total area of all floors of a building measured to the outside surfaces of exterior
walls, and including the following:
I . Halls;
2, Base of stairwells;
3. Base of elevator shafts;
4. Services and mechanical equipment rooms;
5. Interior building area above fifteen feet in height between anyfloor level and the ceiling above;
6. Basements with lightwells that do not conform to Section 19.28.070(l);
7. Residential garages;
8. Roofed arcades, plazas, walkways, porches, breezeways, porticos, courts, and similar features
substantially enclosed by exterior walls;
9. Sheds and accessory structures.
"Floor area" shall not include the following:
1. Basements with lightwells that conform to Section 19.28.070(l);
1 Lightwells;
9121
No retail
W5- "'k%A111, Al r"It,
I -Ehfl
ANTkk, K,100 *c vkk ORASIF
parking
RETAIA, Val"PY11"IM"I'llr,included
"ate , ,,k, 44 "AA
f"k-LiFf tvaiw"1114
No office
parking
included
The reference to "Residential, retail, parking," in Figure 3, it implies that the gross square feet includes retail
parking, but the gross square footage, SF, does not include any retail parking. Retail parking is all subterranean.
The Underground Structures on the east and west properties do not contain any residential and no office and
retail parking is included at ground level or above (in internal parking garages).
The Application does not comply with SB 35, because its "designated for residential use" calculation uses this
definition of "floor area" found in CMC § 19.08.030 and ignores the implications of SB 35:
"Floor area" means the total area of all floors of a building measured to the outside surfaces of exterior
walls, and including the following:
I . Halls;
2, Base of stairwells;
3. Base of elevator shafts;
4. Services and mechanical equipment rooms;
5. Interior building area above fifteen feet in height between anyfloor level and the ceiling above;
6. Basements with lightwells that do not conform to Section 19.28.070(l);
7. Residential garages;
8. Roofed arcades, plazas, walkways, porches, breezeways, porticos, courts, and similar features
substantially enclosed by exterior walls;
9. Sheds and accessory structures.
"Floor area" shall not include the following:
1. Basements with lightwells that conform to Section 19.28.070(l);
1 Lightwells;
9121
3. Attic areas;
4. Parking facilities, other than residential garages, accessory to a permitted conditional use and
located on the same site;
5. Roofed arcades, plazas, walkways, porches, breezeways, porticos, courts and similar features
not substantially enclosed by exterior walls.
The subterranean parking facilities are not conditional uses under SB 35. The retail portion is already zoned
properly and would not be conditional, and the office portion is allowable under SB 35, if the zoning is allowed
to be modified through SB 35 streamlining. Therefore, the subterranean garages must be factored in.
The definition of "floor area" includes residential garages and excludes nonresidential garages if they are
"accessory to a permitted conditional use and located on the same site ". The Applicant misused this definition
of "floor area" as justification for including all the project's residential garages as a "residential use", and as
justification for excluding all other parking garages from its square footage total. SB 35 allows the office and
retail uses (if the zoning is indeed changed through SB 35 streamlining), making the office no longer a
conditional use.
The use of Cupertino Municipal Code 19.08.030's "floor area" definition was invoked independent of its
context. The "Golden Rule" says that words should be followed unless it would lead to an inconsistency. The
"floor area" definition should therefore not be used, because of the inconsistency it introduces, and in the
context of an SB 35 plan, the office and retail parking facilities would actually be added in.
A second reference for definitions of building areas is from CMC § 16.04.010 Code Adoption of the 2016
California Building Code, Volumes I and 2 inclusive, and Appendices.
From Title 24 2016 California Building Code, Part 2, Volume 1- Includes January 2017:
201.4 Terms not defined
"ere terms are not defined through the methods authorized by this section, such terms shall have
ordinarily accepted meanings such as the context implies.
AREA, BUILDING. The area included within surrounding exterior walls (or exterior walls and fire
walls) exclusive of vent shafts and courts. Areas of the building not provided with surrounding
walls shall be included in the building area if such areas are included within the horizontal projection of
the roof or floor above.
FLOOR AREA, GROSS. The floor area within the inside perimeter of the exterior walls of the
building under consideration, exclusive of vent shafts and courts, without deduction
for corridors, stairways, ramps, closets, the thickness of interior walls, columns or other features. The
floor area of a building, or portion thereof, not provided with surrounding exterior walls shall be the
usable area under the horizontal projection of the roof or floor above. The gross floor area shall not
include shafts with no openings or interior courts.
FLOOR AREA, NET. The actual occupied area not including unoccupied accessory areas such
as corridors, stairways, ramps, toilet rooms, mechanical rooms and closets.
Part 2 - California Building Code n Part 2, Volume I (HTML
(hmp:. codesiccsa fe.Qrg/ 'I)ook-,,too .i'201('aliforniaBuildinp-%2OVolutne%201�iiidex,litilii_
))
Using the State of California Building Code definitions makes it clear that the parking garages for retail and
office would be included along with the utility areas for retail and office.
17
The Applicant also chose to ignore a competing definition, "gross building area" in CMC § 03.32.020 (D) that
would have excluded all the parking garages in the project.
D. "Gross building area," as used in this chapter, means the area of the several floors of a building
included within the surrounding exterior walls of a building or portion thereof exclusive of
noncommercial pat -king garages. Parking garages that obtain their primary source of income from the
parking of vehicles for a fee shall be considered commercial parking garages. Other types of garages
shall be considered noncommercial. The floor area of a building, or portion thereof, not provided with
surrounding exterior walls shall be the usable area under the horizontal projection of the roof or floor
above.
CMC § 03.32.020 (D) "gross building area" definition would have excluded all parking garages in the proposed
project, and therefore would have avoided the inconsistency found in Municipal Code 19.08.030's "floor area"
definition. The Applicant should have used this definition.
It is only with the inconsistent treatment of parking garages that the project meets the two- thirds residential use
threshold required by SB 35. When all parking garages are consistently included or consistently excluded, the
project does not meet the two-thirds threshold required by SB 35.
Table 4: Calculation of Total Residential Square Feet, SF including parldrig and amenities
1041 1Y.11
TOTAL RESIDENTIAL, RETAIL, RES. PKG.
LESS RETAIL SF
TOTAL RESIDENTIAL + RESIDENTIAL
PARKING
Gross SF
Land Use
352,000
Residential, Retail, Residential Parking
750,000
Residential, Retail, Res. Parking
1,380,000
Residential, Retail, Res. Parking
700,000
Residential, Retail, Res. Parking
538,000
Residential, Retail, Res. Parking
710,000
Residential, Res. Parking
654,000
Residential, Res. Parking
5.084,000
4,684,000
W]
Table 5: Residential Square Footage Totals
Residential Square Footage Totals
Unit #
Avg Size SF
Total SF
1,057
423
447,111
488
654
319,152
71
1,117
79,307
71
1,450
102,950
50
2,015
100,750
45
1,539
69,255
26
1,923
49,998
9
2,310
20,790
67
1,085
72,695
58
1,395
80,910
105
1,705
179,025
53
2,170
115,010
59
1,508
88,972
44
1,842
81,048
67
2,177
145,859
32
1,412
45,184
16
1,712
27,392
74
2,255
166,870
10
4,646
46,460
2,402
2,238,738
Avg. Unit Size
932.03
SF
Residential Total SF
(including parking and
amenities)
4.68M SF
Usable Square Feet
"In a nutshell, usable square footage is the actual space you occupy from wall to wall. Usable square footage
does not include common areas of a building such as lobbies, restroorns, stairwells, storage rooms, and shared
hallways. For tenants leasing an entire floor or several floors, the usable square footage would include the
hallways and restrooms; exclusively serving their floor(s)" Source: op r i N Jetrios.
Including the residential amenity space, when following the Cupertino Municipal Code definitions, results in an
unfair and inconsistent allocation of parking area and massive amenities shown under the roof structure and a
two -floor huge residential walk -way over Wolfe Rd. and encourages the developer to 'fabricate' amenities to
further increase the size. This could be done for a variety of reasons which are not related to obtaining a
reasonable rate of return for the project, but to protect certain unwelcome portions of a project (office space) and
maintain the 2/3 residential ratio. The office space totals did not have parking spaces added, for example.
In
The following table summarizes the percentage of residential when considering the Gross SF, Net SF (assuming
a 15% load factor for common areas in the retail and office component, the Net SF is given for residential), and
comparing these figures to the VTC SB 35 calculations. The Net and Grass SF calculations both yield a non
compliant result of 54% and 46% respectively.
Table 6: Comparison of 2/3 Calculation Methods - VTC SB 35 Not Compliant
Comparison of 2/3 Calculation Methods: Net SF vs. VTC SB 35 Methodology vs. Gross SF
Non -Residential Uses
Total SF Non -Residential
% Residential
SB 35
Retail SF
Office SF
Residential Uses
plus Residential SF
By Each
Compliant? (>
Method
2/3, 66%?)
SF
400,000
1,810,000
2,238,738
1,478,000
SF Parking
1,906,000
SF Parking Plus Amenities
2,445,262
Subtotal Net SF (Subtract
15%Load for Common
340,000
1,538;500
2,238,738
Areas)
Calculation Method
Total Net SF (Subtract
15% Load for Common
1,878,500
2,238,738
4,117,238
54%
No
Areas -Office and Retail)
Total SF By VTC SB 35
Methodology (CMC §
19.08.030) Eg. Not
2,210,000
4,684,000
6,894,000
68%
Yes
Counting Retail and
Office Parking
Gross Total SF (Including
5,594,000
4,684,000
10,278,000
46%
No
Parking and Amenities)
KE
Figure 2: Cross Sections Illustrating Excluded Square Footage in SB 35 Application
21
Figure 3: Plan View of Parking Illustrating Garages Excluded in Square Footage in SB 35 Application
22
The Project does not comply with the criteria of SB 35 in that the General Plan requirement for ground floor
retail and active uses with residential allowed on upper floors is not met, and thus it does not comply with Gov.
Code § 65913.4(a)(5).
Chapter 3 of the 2014 GP ("archived" at http://www.cupertino.org/home/showdocument?id=9150) describes
uses for the "Vallco Shopping District Special Area" as follows.
Strategy LU -19.1.4: Land use. The following uses are allowed on the site (see Figure LU -1 for
residential densities and criteria):
1. Retail: High -performing retail, restaurant and entertainment uses. Maintain ...
2. Hotel: Encourage a business class hotel ...
3. Residential: Allow residential on upper floors with retail and active uses on the ground floor.
Encourage a mix of units for young professionals, couples and/or active seniors who like to live in an
active "town center" environment.
4. Office: Encourage high-quality office space ...
Chapter 2 of the 2014 GP (p. 9) similarly provides:
The City envisions this area as a new mixed-use "town center" and gateway for Cupertino.
VTC SB 35 Architectural Site Plans, Building Plan Street Level P-0800.01 have shaded retail in pink,
residential in yellow, and office in blue. The retail includes active uses and is shaded pink in the plans. The
retail is nearly all clustered on the west property and on the south end adjacent to Stevens Creek Blvd. (lower
right on the plan). The residential areas are on both the east and west property and there are two buildings on
the west property with no ground floor retail (blocks 09 and 10). Blocks 03, 05, 04N and 04S have only some
ground floor retail.
W
Figure 4: VTC SB 35 Architectural Site Plans, Building Plan Street Level P-0800.01
VI. COMPLIANCE TEST EXCLUDING CONCESSIONS: NOT COMPLIANT
The Project does not comply with the criteria of SB 35, in that when the concession provided by the Density
Bonus Law are excluded, the project does not comply with objective standards and thus does not comply with
Gov, Code § 65913.4(a)(5):
(5) The development, excluding any additional density or any other concessions, incentives, or waivers
of development standards granted pursuant to the Density Bonus Law in Section 65915, is consistent
with objective zoning standards and objective design review standards in effect at the time that the
development is submitted to the local government pursuant to this section. For purposes of this
paragraph, "objective zoning standards" and "objective design review standards" mean standards that
involve no personal or subjective judgment by a public official and are uniformly verifiable by reference
to an external and uniform benchmark or criterion available and knowable by both the development
applicant or proponent and the public official prior to submittal. These standards may be embodied in
alternative objective land use specifications adopted by a city or county, and may include, but are not
limited to, housing overlay zones, specific plans, inclusionary zoning ordinances, and density bonus
ordinances, subject to the following:
24
(A) A development shall be deemed consistent with the objective zoning standards related to housing
density, as applicable if the density^proosed is compliant with the maximum density allowed within
that land use designation, notwithstanding any specified maximum unit allocation that may result in
fewer units of housing being permitted.
(B) In the event that objective zoning, general plan, or design review standards are mutually
inconsistent, a development shall be deemed consistent with the objective zoning standards pursuant to
this subdivision if the development is consistent with the standards set forth in the general plan. (t
S 3 5
-L
Law,
The development, excluding additional density, concessions, and incentives is not consistent with objective
zoning standards:
1. Plan is inconsistent with objective zoning standards: site is not zoned residential. Additionally, the
General Plan does have a conditional use permit process which would allow the movement of
residential units between priority housing sites, however, there is not enough housing in the city-wide
pool for housing over 800 residential units. The General Plan EIR studied 800 residential units at
Vallco and approximately 400 remain in the city-wide pool.
2. Plan is not consistent with 1:1 setback.
3. Plan exceeds height limits in place without the Specific Plan which are 85' and 30'
4. BMR units are not dispersed throughout the project as required, before (and after) adding the Density
bonus units.
5. Easements may not be ministerially vacated for project, this requires a plan redesign.
6. BMR units are not same size and number of bedrooms as Market Rate Units, as required.
7. BMR units have different finishes, as required, normally a City Council decision.
8. Retail may not be reduced below General Plan minimum 600,000 SF, as required.
9. Park Land requirement not met.
10. Protected Tree and Street Tree removal requires permits and posting, a subjective concession.
11. (Alternative plan submitted requires a second submission package to fill in missing information.)
DENSITY BONUS IS NOT ALLOWABLE — EXCEEDS CITY-WIDE EIR STUDIED TOTALS
Vallco Specific Plan DEIR Indicates Inability to Arrive at Number of Residential Units through General Plan.
On May 24, 2018, the City of Cupertino circulated the Draft Environmental Impact Report (DEIR) for Vallco
Specific Plan.
The DEIR, p. 15 PDF p 51, states in 2.4.2:
"The General Plan, however, controls residential development through an allocation system.
This alternative [General Plan Buildout with Maximum Residential Alternative] assumes that
there are no residential allocation controls in place and development can occur at the maximum
density allowed by the General Plan". (N,'a11co_DE,,1R, p. 15, PDF p 5 1)
The number of units in the SB 35 application cannot be met, because there are only about 400 residential units
in the residential allocation 'pool' remaining, according to City Assistant Manager Aarti Shrivastava, June 4,
2018 during the Vallco Specific Plan City Council Study Session, and that a General Plan Amendment would be
needed to have such number of units.
N
SB 35, while negating the allocations the city imposed on Vallco (389 residential units per General Plan Table
LU -1), does not consider that the allowable density would result in more housing than was studied and accepted
by the City Council across the entire city in the General Plan EIR. Fora large city, it would likely be difficult to
,swallow up' the entire housing supply offered by one SB 35 project, but Cupertino is a small city with only
1,882 residential units available city-wide, residential units cannot materialize with no environmental review,
along with the review of all sites city-wide which may be eligible for SB 35. The result in SB 35 removing local
control results in an immeasurable amount of "by right" development, and brings chaos to the General Plan and
jobs : housing balance with no horizon.
VII. NUMBER OF DWELLING UNITS INCONSISTENT WITH TABLE LU -1 - EXCESSIVE
Table LU -1 shows a citywide available number of units of 1,882. The total number of units was studied in the
General Plan EIR, going beyond that amount studied would be unacceptable.
WHEREAS, on October 20, 2014, the Planning Commission recommended on a 4-0-1 (Takahashi
absent) vote that the City Council certify that the Final EIR has been completed in compliance with the
California Environmental Quality Act, Public Resources Code Section 21000 et seq., and reflects the
independent judgment and analysis.of the City, adopt the Findings and Statement of Overriding
Considerations, adopt the Mitigation Measures, and adopt the Mitigation Monitoring and Reporting
Program, in substantially similar form to the Resolution presented (Resolution no. 6760); adopt the
General Plan Amendment (GPA -2013-01) (Resolution no. 6761); authorize staff to forward the Dratt
Housing Element to the State Department of Housing and Community Development for review (GP A-
2013-02); approve the prioritized list of potential Housing Element sites in the event amendments are
needed to the proposed Housing Element sites upon HCD review (Resolution no. 6762); approve the
Zoning Map Amendments, Z-2013- 03, in substantially similar form to the Resolution presented
(Resolution no. 6763); approve the Municipal Code Amendments to make changes to conform to the
General Plan and Housing Element and other clean up text edits (MCA-2014-01)(Resolution no. 6764);
approve the Specific Plan Amendments, SPA -2014-01, in substantially similar form to the Resolution
presented (Resolution no. 6765); and ...NOW, THEREFORE:
After careful consideration of the, maps, facts, exhibits, testimony and other evidence submitted in this
matter, the City Council hereby finds:
1. The General Plan is necessary to prescribe reasonable controls and standards for
affected land uses to insure compatibility and integrity of those uses with other uses;
2. The General Plan provides reasonable property development rights while protecting
environmentally sensitive land uses and species;
3. The General Plan identifies standards and policies for use throughout the City;
4. The General Plan conforms with requirements of State Law and The General Plan is
necessary to protect the general public health, safety, or welfare of the community as a whole,
(Cupertino City Council Resolution 14-211, December 4, 2014.)
M
Figure 5: VTC SB 35 Table LU -1 Consistency Analysis
Table LU -1: Citywide
Residential allocation Consistent. The Projectwill include 2,402 units,
Development Allocation
not required. The 389 which is allowed based on the standard of 35 units
Between 2014-2020: 389
unit allocation is per acre plus the density bonus.
residential units will be
inapplicable because SB
allocated to Vallco, as a Priority
35 deems a project
Housing Element Site (see also
"consistent with the
HE -1.3.1 and Table HE -S).
objective zoning
389
standards related to
Diistrkt-
housing density, as
applicable, if the density
Figure 6: Land Use Table LU -1, GP -2014
Heart of the 1,351,730 2,145.000 793270 2,447,500 2,464,613 17,133 404 526
122 1,336
1,805
469
City
V44co
Shopping 1,207,774 1207,774 - ZOOOOOO 2,ODO.000 148 339
191 -
389
389
Diistrkt-
Homestead 291,408 291,508 69.550 69,550 126 126
- 600
750
ISO
N. Dee Anza 56,708 56,708 2,081,021 2,081,021 123 123
49
146
97
N. Vallto 133,147 133,147 3,069,676 3,069.676 315 31S
554
1,154
60D
S. De Anza 352,283 352,283 130,708 130,708 -
6
6
- 444,753 "4,753
-
-
Morris, v1ste 94,051 99,1698 5,647 443,1410 456,735 11595
828
878
so
Wage
oth& 144,964 144,964 119,896 119,896 -
18,039
18,166
127
LBubb
Major - - 109,935 633,053 523,118
-
-
Employers
Citywide 3,632,065 4,430,982 798,917 8,916,179 11,470,005 2,SS3,826 1,116 IA29
313 21,412
23,294
1,882
w* Suildbut totah for tYfke and Residential Allocation within the VaIlto Shopping Disinkt are tortingeAt up" a Spelific
Plan being adopted for titin area by May 31, 2018- If a Specific Plan is rate, Adopted by that date, City will consider the
removal of the Office and Residential allocations for Wks, Shopping District- See the Housing Element (Chapter 4) for
additional Worm abon and requirements within the Valloo Shopphig District.
NN
VIII. DENSITY BONUS CONCESSIONS: NOT COMPLIANT (EXCEEDS MAXIMUM)
The Project does not comply with the criteria of SB 35, in that the number of concessions requested under the
Density Bonus Law, which are an allowable three, are exceeded and thus does not comply with Gov. Code §
65915(d)(1) and CMC § 19.56, and Gov, Code § 65913.4(a)(5)(A).
The following is from the Vallco Town Center SB 35 Development Application, Appendix A: SB 35 Eligibility
Checklist, Item 8, p. 3, PDF 22:
The Project as proposed is consistent with all applicable objective standards, excluding the two
concessions allowed under the State Density Bonus Law, Gov. Code § 65915(d)(1) and CMC § 19.56.
The Project qualifies for 3 concessions based on the inclusion of 15% of the total units for very income
households. As described in the Project Description, one concession will be used to allow 400,000
square feet of retail in the Project, as opposed to the 600,000 square feet of retail stated in the General
Plan and a second concession will be used to waive the requirements of CMC § 19.56.050(G).
Summary of Concession for Density Bonus Units:
I Plan is inconsistent with objective zoning standards: site is not zoned residential, Additionally, the
General Plan does have a conditional use permit process which would allow the movement of
residential units between priority housing sites, however, there is not enough housing in the city-
wide pool for housing over 800 residential units. The General Plan EIR studied 800 residential
units at Vallco and approximately 400 remain in the city-wide pool.
2. Plan is not consistent with 1:1 setback.
3. Plan exceeds height limits in place without the Specific Plan which are 85' and 30'
4. BMR units are not dispersed throughout the project as required, before (and after) adding the
Density bonus units.
5. Easements may not be ministerially vacated for project, this requires a plan redesign.
6. BMR units are not same size and number of bedrooms as Market Rate Units, as required.
7. BMR units have different finishes, as required, normally a City Council decision,
8. Retail may not be reduced below General Plan minimum 600,000 SF, as required. Retail reduction
letter is insufficient to justify necessity to reduce retail.
9. Park Land requirement not met.
10. Protected Tree removal requires permits and posting. Development Trees were not delineated in
plans as "Protected Trees" and possibly hundreds qualify. Plans show removal of city owned street
trees,
11. Review of Financial Statements for Concessions: no financial statements provided
11 (Alternative plan submitted requires a second submission package to fill in missing information.)
13. Heights are limited by zoning and previous General Plan
14. Density Bonus Units Not Allowed — Health Impacts shown in DEIR
State Density Bonus Law, Gov. Code § 65915(d)(1) and CMC § 19.56 allow the maximum three concessions if
certain criteria are met with regards to the percent of low and very low income units. VTC SB 35 qualifies for
the maximum 3 concession and a 35% density bonus for housing. However, the actual plan requires an
excessive amount of concessions and is not compliant,
W
The SB 35 application states that the project qualifies for three concessions derived from the density bonus as
follows:
Waive the requirement in Cupertino Municipal Code Section 19.56,050.E to have the identical design
as market rate units. ' This reduces the costs of constructing the affordable units to design them to a
specification consistent with other affordable housing projects, including different materials and finish
quality. Purpose-built affordable housing projects typically include more cost-effective finishes
including appliances, cabinetry, lighting, counter tops, fixtures, windows and other items. To the extent
such finishes are different from those used in market rate units, the cost will be reduced for the
affordable units.
3 The Project has been designed to comply with the "dispersal" requirement, as affordable units are located throughout the
Project. (The one area that is an exception is that the 623 density bonus units are geographically separate, as permitted by state
law and Cupertino Municipal Code section 19.56.030.F.7.) While the Project complies with this code provision, it is not
obligated to under SB 35 because the requirement to be "dispersed throughout the project" is not objective because it involves
personal judgment and there are no "uniform benchmark or criterion available and knowable by both the development applicant
or proponent and the public official prior to submittal." For these reasons, a concession is not needed for this requirement.
Nonetheless, the following provides a brief explanation for why relief from a requirement to uniformly disperse would achieve
cost reductions. Separating the affordable units into distinct areas that can be included as separate condominiums allows them
to be financed separately and with lower cost financing. Because the cost of capital is a significant component of the overall
project cost, obtaining more favorable financing represents a clear and identifiable cost savings to the Project.
2. The Project proposes 400,000 square feet of retail, a reduction from the minimum amount of retail
specified in the General Plan of 600,000 square feet. According to a recent Retail Opportunity Analysis
of the trade area in which the Project is located summarized in Appendix K — Retail Reduction
Justification Letter, in order to achieve stabilization of 600,000 square feet of retail, the Project would
have to capture 100% of the existing retail demand in the trade area, an unrealistic scenario given the
tenant types and pricing realities of the high quality retail product to be delivered at the Project. As
such, the analysis recommended a maximum of 400,000 square feet of retail at the Project. Building in
excess of 400,000 square feet would result in additional and unrecoverable costs to VPO in the form of
extraordinary transaction costs (i.e. excessive monetary contributions for tenant improvements and/or
lease procurement brokerage fees), extraordinary construction costs (i.e. turn -key buildouts or other
non-standard improvements for tenants, or construction of un -leasable space), and/or extraordinary
operating losses (i.e. operating costs in excess of rental income as a result of heavy discounts or vacant
space) and cannot be offset by other Project revenues given the composition of its uses, including but
not limited to the Project's affordable housing component. Limiting the retail component of the Project
to 400,000 square feet would facilitate cost reductions and, in concert with other strategies, should allow
VPO to offer the affordable rents contemplated by the Project's housing component.
3. If the City properly identifies an inconsistency with an objective zoning standard and waiving that
standard would achieve cost reductions, this final concession is reserved for such purposes. (Va lqq Sly
L5, pp. 15-16, PDF 15-16)
DISCUSSION OF THREE CONCESSIONS
Concession I and footnote 3 From VTC SB 35 application requests to "Waive the Cupertino Municipal Code
Requirement to have identical designs as market rate units. 19.56.050.G." G,Alco:il_U 5, p.15 PDF 15) This
requirement for "identical designs as market rate units" is regarding finishes, however the BMR housing units
are of different sizes than the market rate units. That does not appear to be following the Cupertino Municipal
Code for affordable units which they reference in the concession. In the footnote they claim that another part of
the Cupertino Municipal Code, 19.56.030.F.7 allows them to ignore the dispersal requirement, however that
portion of the code is for calculating density bonus and is not an allowance to not disperse the units.
PH
7. For purposes of calculating a density bonus, the residential units do not have to be based upon
individual subdivision maps or parcels. The bonus units shall be permitted in geographic areas of the
housing development other than the areas where the affordable units are located. (Ord. 16-2149, § 8,
2016) (T)J.Ini C'ode, 19.56.030.F.7)
MMURESMI
2. For purposes of this chapter, permissible incentives or concessions include, but are not limited to:
a. A reduction of development standards or a modification of zoning code requirements or
architectural design requirements that exceed the minimum building standards approved by the
California Building Standards Commission as provided in Part 2.5 (commencing with Section 18901) of
Division 13 of the Health and Safety Code, including but not limited to, a reduction in setback
requirements, square footage or parking requirements, such that the reduction or modification results in
identifiable, financially sufficient, and actual cost reductions.
b. Approval of mixed-use zoning in conjunction with the housing development if commercial,
office, industrial or other land uses will reduce the cost of the housing development, and if the
commercial, office, industrial or other land uses are compatible with the housing development and the
existing or planned development in the area where the proposed housing development will be located;
c. Other regulatory incentives or concessions proposed by the developer or the City, which result
in identifiable, financially sufficient, and actual cost reductions.
3. Nothing in this section requires the provision qfdirect financial incentives for the housing
development, including but not limited to the provision of financial subsidies, publicly owned land by
the City or the waiver of fees or dedication requirements. The City, at its sole discretion, may choose to
provide such direct financial incentives;
4. A housing development which requests incentives or concessions must demonstrate, in
compliance with Section 19.56 060B, that the requested incentives or concessions are required to
provide for affordable rents or affordable housing costs, as applicable.
CMC § 19.56.050:
G. Affordable units shall be provided as follows:
1. Affordable units shall be dispersed throughout the project;
2. Affordable units shall be identical with the design of*any market rate rental units in the project
with the exception that a reduction of interior amenities for affordable units will be permitted upon prior
approval by the City Council as necessary to retain project affordability. 19.56.050)
BI IR UNITS NOT DISPERSED: NOT COMPLIANT WITH GOV. C'ODE § 65913,4(A)
The Project does not comply with the criteria of SB 35 in that the BMR units are not dispersed throughout the
project, the units are not in the towers, floors I and 2 and in floors 10 through 23, and the units are clustered in
the center parts of each floor. Part of the reason this occurred is because the Applicant chose to cluster the 623
density bonus units, while there are 1,201 BMR units, then farther limited locations where SMRs would be
placed relegating them to the 3'- 91h floors. By segregating the BMR units in objectively identifiable areas
geographically, in the project, the project does not comply with Ca. Gov. § 65580, CMC § 19,56.060(G) and
CMC § 19.172, and Gov. Code § 65913.4(a)
The city's Below Market Rate (BMR) Housing Mitigation Program Procedural Manual, 2015, authorized by
CMC § 19.172 Below Market Rate Housing Program, reiterates the dispersal requirement of CMC § 19,172:
0
A. BMR units shall be comparable to market rate units in terms of unit type, number of bedrooms per
unit, quality of exterior appearance and overall quality of construction.
B. BMR unit size should be generally representative of the unit sizes within the market -rate portion of
residential project.
C. Interior features and finishes in affordable units shall be durable, of good quality and consistent with
contemporary standards for new housing.
D. The BMR units shall be dispersed throughout the residential project, (B.\4R Manual., p5, PDF 9)
Figure 7: Location of Below Market Rate Units in SB 35 application
Total of 7
Luxury
Towers
HaAng No
BNIR Units
35 Plan, P-0831, PDF 3)
Block 10 example from the plan set, following, shows that building has no BMR units on the Ground and 2"'
floor, BMRs are side by side and in the center portions of floors 3-9 and there are no BMR units in floors 10-23.
This is typical for every block which has BMR units in the plan. That is an objective, identifiable failure to
comply with the BMR standards. The following Plan Views of Block 10, of Architectural Plan Set I are
representative of every residential block which has BMRs in it:
a
Figure 8: Gound Floor, No BMRs
Figure 9: 2nd Floor, No B
32
Figure 10: 3rd Floor, SMRs in Middle Portion of Floor
Figure 11: 4th Floor, BMRs in Middle Portion of Floor
W
Figure 12: 5th Floor, BMRs in Middle Portion of Floor
Figure 13: 6th Floor, BMRs in Middle Portion of Floor
34
Figure 14: 7th Floor, BMs in Middle Portion of Floor
35
Figure 16: 9th Floor, BMRs in Middle Portion of Floor
Figure 17: 10th Floor, No BMRs
m
Figure 18: 11th Floor, No BMRs
Figure 19: 1211 floor — "Terrace Level 0111 no BMRs
37
Figure 20: 13th floor — "Terrace Level 0211 no BMRs
Figure 21: 14th floor — "Terrace Level 0311 no BMRs
Figure 22: 15th floor — "Tower Level 1" no BMRs, has swimming pool
38
Figure 23: 16th floor - "Tower Level 2" no BMRs
Figure 24: lith floor — "Tower Level 311 no BMRs
Figure 25: 18th floor — "Tower Level 4" no BMRs
39
Figure 26: 19th floor — "Tower Level 51' no BMRs
Figure 27: 20th floor — "Tower Level 6" no BMRs
Figure 28: 21st floor — "Tower Level 7" no BMRs
40
Figure 29: 22nd floor — "Tower Level 8" no BMRs
Figure 30: 23th floor — "Tower Level 911 no BMRs
Figure 31: 24th floor — Green roof
41
Typical level with BMRs shows them side by side and in the center portion of buildings.
Figure 32: BMRs Typical Location
BMR UNITS AND MARKE"FRATE UNITS ARE NOT IDENTICAL SIZE OR NUMBER OF
BEDROOMS: NOT COMP LIANT
The proposed affordable BMR units have a studio and a one bedroom floor plan. There is a traditional (TRD)
studio market rate floor plan, a TRD one bedroom market rate floor plan, and a loft one bedroom market rate
floor plan which are each larger than their equivalent BMR floor plan. There are no BMR equivalents for the
2,3,4, and 5 bedroom plans which is in violation of CMC 19.56.050(G)(2) and the city's Below Market Rate
(BMR) Housing Mitigation Program Procedural Manual, 2015 quoted in the above section.
EN
111 11J111rqJ1!!111
J
Residential Unit Size Comparison of BMR (Affordable) and
Market Rate in Square Feet (SF)
Residential Unit Type Size of Unit, SF
Studio BMR (affordable unit)
388 SF
Traditional (Ii)) Studio (Markel Rate)
620 SF
One Bedroom BMR (affordable unit)
528 SF
One Bedrooyn'YRD (Market Rate)
86") SF
One Bedroom Loft ('Market Rate)
1085 SF
'Two Bedroom Market Rate -
Traditional
1,117
Townhouse
1,539
L oft,
395
'rerrace
1,508
Tower
1,412
oom arket Rate.
Three BedrM
Traditional
1,450
Townhouse
1,923
Lott
1,705
Terrace
1 ,842
Tower
1,712
Four Bedroom Market Rate:
Townhouse
2,310
Loil
2,170
'rerrace
2, 177
Tower
2.25 5
Five Beds oomMarket Rate:
co. -Housing
2015
Toivers Full Floor
4,646
FLOOR PLANS OF BMR AND MARKET RATE UNITS: NOT EQUIVALENT
The Project is not compliant with the requirements for BMR units to be equivalent to market rate units. The
following floor plans are for BMR and Market Rate and their sizes are tabulated in Table 7 above:
43
Figure 33: BMR Studio, SB 35 Architectural Plans, 388 SF
UNI Ti fIC Al *W4
�L
(S1, ',L Y<, P-0$71, PDF 13)
45
FLOOR PLANS OF MARKET RATE UNITS — DO NOT MATCH BELOW MARKET RATE
UNITS IN SIZE OR NUMBER OF BEDROOMS
Figure 35: Traditional (TRD) "Market Rate" Studio: 620 SF
0 FOP, REFEREN(,-,E AND
PERMTS
VN,11 LOXAT, iO�4
EN
46
�!�Illlllil Jill 11111, 111111111�11111111111111 III
ii LGCAT�ONS
...,,m h y r 'fie?"I'M+ SE" a T g :.
(t 5_j'l cj, P-0872, PDF 14)
m
r4aA
ti
"°twlC&,,� Tex 4 t m'R ±,Si �._.
P'0875
(if -1-3 E lari„ P-0875, PDF 17)
48
Figure 38; 2 BR Market Rate TDR unit 1117 SF
('!J335 Plat , P-0872, PDF 14)
.......�.,....�.. . UNITLOCATIONS
ENLARGED LFNT FLOOR PLAN - 2 SEDROOM UNPT (1117 SF) TDR
I C-I,D Ld
M
Figure 39: 5 BR Market Rate Co -Housing, 2,015 SF
UNIT PLANS ARE PROVIDED FOR REFERENCE AND
0 CHANGE FOR DRAWING PERMITS
(155flaLi, P-0873, PDF 15)
U13£ ttk"RTtxt3
50
11151111
113-3-5--flarl, P-0874, PDF 16)
51
Figure 41: Market Rate 3 BR Townhouse, 1,923 SF
52
Figure 42: Market Rate 2 BR Townhouse, 1,539 SF
(11_3-5_Phin, P-0874, PDF 16)
53
Figure 43: Market Rate 2 BR Loft 1,395 SF; Market Rate 3 BR Loft 1,705 SF
54
Figure 44: Market Rate 4 BR Loft 2,170 SF
(513, 35 E an, P-0876, PDF 18)
55
Figure 45: Market Rate 4 BR Terrace unit 2,177 SF
B-35 Plan, P-0877, PDF 19)
56
Figure 46: Market Rate 3 BR Terrace unit 1,842 SF
El
(Sti 35,11-lan, P-0877, PDF 19)
W1 lllCAl
rOVTENR�"CEWIMZS?IRC
-,l 2
57
AL.
LOSET:
iKITtHEN
L Z
FOYER
P
11 EIAT+6+OA*
R6$M
m, hi:,
BATHR
-'A
-2
-
WIC
CLOSET
C
DINING
ZIJ
BEDROOM
LIVING
I BEDROOM
BEDROOM
El
(Sti 35,11-lan, P-0877, PDF 19)
W1 lllCAl
rOVTENR�"CEWIMZS?IRC
-,l 2
57
Figure 47: Market Rate 2 BR Terrace unit 1,508 SF
AND ARE SUBJECT TO CHANGE FOR DRAWING PERMITS.
E%LkRG
-jLP-0877, PDF 19)
'L
,
58
59
Figure 49: Market Rate 2 BR Tower unit 1,424 SF
N� -
scs
hMT �,SC4L LKIT VW4 AM PHCl,=C, TW. R TOW4=AP&I
ARE %amr.cT '+O cl 101%= rl", c&�`RWhG
(S1,13,315-PPall, P-0878, PDF 20)
60
M MEMI 10", RVI I lLl!rFlTi•fill, I' ITT I I
a
Table 8: Vallco Town Center SB 35 Site Plan Residential Units
BONUSDENSITY UMMARY
AFFORDABILIT
s
I MED 1;<
_
a ," T
s o-
u,.
FS
.
asB
�€
&V 1.60
4
�
. w .LAS 25%
FWTC Ate,
ce60hus W75s'
sL
270
ALLOWED NUMB" OF COWESS'ONS
90
RESIDENTIAL PROGRAM DISTRIBUTION
BLOCK TIM Me
,:mowtultklm
�
A
C = c co, 4-q
css f : * ;c
LOMI
ws 4
TE .,
TERRACES( a
TATTOTAL
MR�
-, L ," _ 193
13
14
166
MOF
mm
.°Liix'"Tsac4w\� A 61A F
c i49
TOTAL
exc
b�
36,
b
Troom s i "( a
To o y:
1
93
360 93
3 r.SxjT
'..b
"
LOFTS ;tT"
Lo
44
—RFLAcf5(-Kc) 64
pLT)
Te
36
'TOTAL W
TOTS
414
LE WTS MARM fKAIM
LOFT ("T3 50
T.A ACQ r;".0 ....
TOTALTAT
m
RESIDENTIAL PROGRAM TYPES
UNITS f
.. .. .. .. -
Uh,
'A
v >i
...... ......
fa 0%
1,0ST
8F0
29 0%
40
4 KED
3SED
40%
Ti 1,4!,o
TOTAL
10D %
i 1687
—J
TOTAL
nmAm (TRC)
LNIT %
L041T #T SSA
CO3HMUNG
V 2 M
iaiTv SF
J TT T %
.. . ........
UW 4
.
�AVE SWE �SF)j
ED
347%
59
15M
LNWTS SF
UNIT %
UNIT 9
ABED
25 9%
44
2 T
4 BED
1,539
3 1
5%
1 6 1
!00%
4@ T
9 2310
TOM
WTSSF
IT110TE
(I SEE PROF C T SES MN FOR 1AFORWAT" RELENTED TE F ORDME HOUSONG
V2) THE RESOENTLk TYPE 3E.0 N TWSE TABLES An DISIRSUTED AMONGST THE D 1,FfERENT "LVING BLOCKS ASMI TED V,14E 7 ABLES VE LYMV
(3) THE DIST MUTM OF RESIMN nAL WVTS RS SIMN FOR REFERME A?O SMECT TO CHANCE N SURSEWENTRUNIM.NG PERWT APPL X., AWKS
The "Residential Program Types" table above does not clearly state that the BMR units' quantity are mixed in
with the Traditional (TRD) totals in the upper left. That is determined by working backwards looking at the
floor plans and checking off the avg. square footage until the studio and I bed values for TRD do not match the
square footage of the floor plans. The average sizes listed are weighted averages and give the appearance that
the BMR units are the same as the TRD studio and one bedroom units and one bedroom loft units at market rate.
Concession 2: reduce retail. The inadequate justification for reducing retail is that the Project would have to
"...capture 100% of the existing retail demand in the trade area" (VTC SB 35, however this is due to an alleged
qualification of future retail which is not a part of the SB 35 application. In other words, the types of retail in
the future are unknown. The retail is further encumbered by the affordable housing component from the SB 35
application, which is a scenario not in the General Plan. The SB 35 application, by its size and configuration,
may in fact increase retail demand significantly to the area, particularly the entertainment, supermarket, basic
necessities, restaurant, and clothing needs (particularly athletic and office wear).
San Jose repeatedly generates an excellent Market Analysis and Cupertino needs to provide the same
4
data: S, -Sf ggy, Docutnent("ciAcrYiew/ 3 72) This document includes information on
99
..... ......... 0
19 '%
.. .. .. .. -
Uh,
'A
v >i
...... ......
67
2 BED
5%
s .4
4 KED
18,m�
53
2.910
TOTAL
nmAm (TRC)
iaiTv SF
J TT T %
.. . ........
UW 4
.
�AVE SWE �SF)j
ED
347%
59
15M
. ..... . .. ......
ABED
25 9%
44
84,�
4 BED
344%
7" 1 rr
TOTAL
!00%
TOMS (M74
WTSSF
1AVE
WT%
UhfT#
WE
24-k'%
32
1412
3 SED
121%
1712
4BBEE
i 561%
T4
2,22M i
FULL FLOOR
7 W,4
I 1
4446
.... ..
....
TOTAL
-----------------
T,:0 %
13:1
IT110TE
(I SEE PROF C T SES MN FOR 1AFORWAT" RELENTED TE F ORDME HOUSONG
V2) THE RESOENTLk TYPE 3E.0 N TWSE TABLES An DISIRSUTED AMONGST THE D 1,FfERENT "LVING BLOCKS ASMI TED V,14E 7 ABLES VE LYMV
(3) THE DIST MUTM OF RESIMN nAL WVTS RS SIMN FOR REFERME A?O SMECT TO CHANCE N SURSEWENTRUNIM.NG PERWT APPL X., AWKS
The "Residential Program Types" table above does not clearly state that the BMR units' quantity are mixed in
with the Traditional (TRD) totals in the upper left. That is determined by working backwards looking at the
floor plans and checking off the avg. square footage until the studio and I bed values for TRD do not match the
square footage of the floor plans. The average sizes listed are weighted averages and give the appearance that
the BMR units are the same as the TRD studio and one bedroom units and one bedroom loft units at market rate.
Concession 2: reduce retail. The inadequate justification for reducing retail is that the Project would have to
"...capture 100% of the existing retail demand in the trade area" (VTC SB 35, however this is due to an alleged
qualification of future retail which is not a part of the SB 35 application. In other words, the types of retail in
the future are unknown. The retail is further encumbered by the affordable housing component from the SB 35
application, which is a scenario not in the General Plan. The SB 35 application, by its size and configuration,
may in fact increase retail demand significantly to the area, particularly the entertainment, supermarket, basic
necessities, restaurant, and clothing needs (particularly athletic and office wear).
San Jose repeatedly generates an excellent Market Analysis and Cupertino needs to provide the same
4
data: S, -Sf ggy, Docutnent("ciAcrYiew/ 3 72) This document includes information on
99
numbers of workers in various companies' which provided real data of existing businesses and their
names. Retail market analysis is included which covers the West San Jose Area. San Jose has no qualms about
capturing our retail leakage, and still builds more.
This one paragraph from the "Retail Reduction Justification Letter" is the sum total reason for reducing retail in
the project, and in turn, increase the office component by 200,000 SF, which at a low I employee per 300 SF
amount, would result in an additional 667 employees at the site. From a jobs:housing standpoint, this choice
worsens the housing shortage. Retail generates fewer employees than office, and the retail employees would be
more likely to qualify for the BMR units than the office employees.
Figure 51: VTC SB 35 Project Description Part 4, p. 1, PDF 9, Retail Reduction Justification Letter Excerpt
In March 2018 TCG performed a Retail Opportunity Analysis in connection with the redevelopment of
the Vallco Shopping, Mall property (the "Vallco Town Center Project" or "Project") on behalf of Vallco
Property Owner, LLC ("VPO"). This analysis determined, among other things, that in order to achieve
stabilization of 600,000 square feet of retail (as required by the City of Cupertino's General Plan for the
Vallco site), the Vallco Town Center Project would have to capture 100% of the existing retail demand In
the trade area, an unrealistic scenario given the tenant types and pricing realities of the high quality retail
product to be delivered at the Project. As such, TCG recommends building a maximum of 400,000
square feet of retail at the Project. Building in excess of 400,000 square feet would result in additional and
unrecoverable costs to VPO in the form of extraordinary transaction costs (i.e. excessive monetary
contributions for tenant improvements and/or lease procurement brokerage fees), extraordinary
construction costs (i.e. tum -key buildouts or other non-standard improvements for tenants, or construction
of un -leasable space), and/ or extraordinary operating loss (i.e. operating costs in excess of rental income
as a result of heavy discounts or vacant space) and cannot be offset by other Project revenues given the
composition of its uses, including but not limited to the Project's affordable housing
component. Limiting the retail component of the Project to 400,000 square feet would facilitate cost
reductions and, in concert with other strategies, should allow VPO to offer the affordable rents
contemplated by the Project's housing component.
Retail reduction justification letter, VTC SB 35 Project Description Part 4, Appendix K, Retail Reduction
Justification Letter, p. 1, PDF 9:
Z
Figure 52: Retail Reduction Justification Letter
4EW THE GROUP
VALLCO PROPERTY OWNEI?, LLC
Attn: Reed Moulds, -Managing Director
Sand Ifill Property Company
965 Page Mill Road
Palo Alto, CA 94304
Dear Moulds,
With offices across the nation, The Concord Group ('7C(Y-,) offers a comprehensive range of real estate
advisory services for all asset classes, product types. and investment scenarios. We excel at a variety of
scales and time horizons, from lughest and best use analysis of a single site to portfolio valuations
spammigg multiple markets, from assessment of unmediate, investment opportunities to long-range
programming for mastin-planned comanumies. Through incisive research, analytical rigor, and creative
problem -sol--, g. we empower our clients to capitalize upon market opportunities and manage risks
associated with each phase of the cycle.
In March 2018 TCG performed a Retail Opportunity Analysis in connection with the redevelopment of
the Vallco Shopping Mall property (the "Vallco Town Center Project" or "Project") on behalf of Vallco
Property Owner, LLC This analysis determined, among other things, that in order to achieve
stabilization of 600,000 square feet of retail (as required by the City of Cupertino -'s General Plan for the
Vallco site), the Vallco Town Center Project would have to capture 100% of the existing retail demand in
the trade area, in unrealistic scenario given the tenant types and pricing realities of the high quality retail
product to be delivered at the Project. As such,, TCG recommends building a maximum of 400,000
square feet of retail at the Project. Building in excess of 400,000 square feet would result in additional and
unrecoverable costs to VPO in the form of extraordinary transaction costs (i.e. excessive, monetary
contributions for tenant improvements and/or lease procurement brokerage fees), extraordinary
construction costs (i.e. turn-k-ey buildouts or other non-standard iniprov ements for tenants, or construction
of un -leasable space), and/ or extraordinary operating loss (i.e- operating costs in excess of rental income
as a result of heavy discounts or vacant space) and cannot be offset by other Project revenues given the
composition of its uses, including but not limited to the Project's affordable housing
component. Limiting the retail component of the Project to 400,000 square feet would facilitate cost
reductions and, in concert with other strategies, should allow VPO to offer the affordable rents
contemplated by the Project's housing component.
Very Truly Yours,
Tim Corowell
Principal
The Concord Group
Tbn C677nrell is a Principal in tile Sall FrwlCiSCO office. Mr. COMWell is an eApert in inark-er-based urban
infill development strategov, delivering, a bert4n-class quandtativelqualitative approach to solving inacro-
and inicro-econonfic challens�esfiachurbmi redevelopment around the United States. 7 -un is aftequent
speaker on nutIfi-fanfili, de-velopment, arban kfill trends and issues facing his Gen Ypeers, and is active
ivith the Urban Land Institute, SPUR and other industri4eading o7Fanizations. In addition to the market
worksinninanted above, -Mr. Conni-ell leads 71he Concord Group's a#brdable housing practice,
completing more brain for engagements annualdir in supportfunding applications, acquisitions and
planning i {forts. Tina, a native of the San Francisco Bal'Area is a graduate of omona Colkge ivith a
degree in international relations and econoinics.
Vallco Proper• OiNner, LLC Page I March 2018
RE
Concession 3 states essentially that if the City finds any inconsistency with an objective zoning standard and
waiving that standard would achieve cost reductions, this final concession is reserved for such purposes. The
problem with this concession is that there may be multiple objective zoning standard not found to be consistent
with the SB 35 application which could have cost reductions. For instance, the number of units calculated does
not appear consistent, reducing them would be a cost reduction. The General Plan does not appear to allow
housing without a Specific Plan which will not be adopted according to the SB 35 application, this inconsistency
results in no SB 35 project, a huge cost savings.
Source: Vallco Property Owner, Vallco Town Center Project Description, March 27, 2018, p. 16
y�ur qlip_eLtino,or home shoe docurnent?i613.
IX. PARK LAND REQUIREMENT NOT MET IN VALLCO SB 35
The Project does not comply with the criteria of SB 35, in that there is inadequate parkland provided, there
would need to be 21.2 acres of parkland dedicated, while the project calculations state there would need to be
12.96, and provides park space on the roof of the subterranean garage and on the green roof. The applicant does
not state how much "at -grade" park space is actual park land, only stating 4 acres of at -grade space will be
provided, thus the parkland is not compliant with the Density Bonus Law, Ca. Gov. Code § 65915 and CMC §
18.24.030.
The Project does not The City of CMC park land requirement is inconsistent with the Quimby Act and the text
of the Municipal Code: The Municipal Code Table 13.08.050: Park Land Dedication Formula Table does not
result in 3 acres park land per 1000 residents, it ends up with less. For instance, Vallco SB 35 would have 6,798
residents according to their application showing 2.83 residents/DU. However, the General Plan EIR states the
multiplier is 2.94 residents per dwelling unit. This would require 21.2 acres of park land, but the table results in
just 12.96, which is incorrect. The text is what must be followed. We must insist we have park land on the
ground for safe play spaces shielded from the noise and air pollution of the freeway.
Population is calculated by 4,421 units times 2.94 persons per household, which is the ABA G 2040
estimated generation rate. (GP EIR p. 3 -12, PDF 46)
VTC SB 35 shows 2,402 residential units times 2.94 persons per household yields 7,062 residents. This would
require 21.2 acres of park land.
The following SB 35 application statement regarding park land indicates 12.96 acres of park space, this is not
the same as the requirement for park land. The 'at — grade' park space mentioned is on the roof of the
subterranean garages and at a fictional 'at grade' location determined by the plan. The roof park space is 95' in
the air,
The City's General Plan park standard is three acres of park per 1,000 residents (RPC -1.2). Pursuant to
Cupertino Municipal Code requirements for household size, the Town Center would generate the need
for 12.96 acres of park space. The Town Center Project will provide a 30 -acre rooftop park and up to
26 acres of publicly -accessible open space, including 2 acres of at -grade park space and children's play
area adjacent to Perimeter Road, 2 acres in two Town Center plazas, and 14 to 22 acres of publicly
accessible green roofs on all blocks connected by bridges (the final amount of public green roof space
depends on office tenant needs). The Project will also include almost 14 acres of private open space for
66
residents of the Town Center. As such, the Project complies with (and exceeds) the General Plan park
standard. 3 35, p. 8, PDF 8)
Figure 53: VTC SB 35 Application Park Land Total Incorrect with 2.83 residents/unit
Source: Vallco Property Owner, Vallco Town Center Project Description, March 27, 2018, Appendix B: City
Standards Consistency Analysis p. 26 ��Aw. calpertig, Q� i,
IL _ -gjiQqie'showdocument` i&
Please note that the first page of the SB 35 plans from where the following table is copied, shows up blurred at
the city website and following pages do not.)
Figure 54: VTC SB 35 Site Plans: Private Residential Open Space, Public Green Roof Park Space
4 o Ae P'n" q
Vin..,,
P441"',
Al,
tv 0, N& tklt "A
1 CA, A,"s"r.�,,V1 114 1%44f,
Source: Vallco Property Owner LLC, Vallco Town Center Site Plans, Project Information Data Table, P-0101,
O.Oria,horne,',sho"-docLiriient'?i_di -- 19614
UN
cy RPC -1.2: Parkland
Applicable. The parkla
The Project exceeds the City's park
dards. Continue to
acquisition requiremen
Based on the City's average household
fernent a parkland
do not require subjecti
3 in the proposed 2400 units, the Project
acquisition and
judgment and are based
will enerate the need for 12.96 acres of parkland.
implementation program that
on uniformly verifiable
The Proje includes up to 26 acres o on ic y -
provides a minimum of three
criteria and thus are
accessible open space, including 4 acres of at-gerade
acres per 1,000 residents.
objective and applicable.
park space and two plazas, and 14 to 22 acres of
publicly accessible green roofs on all blocks
connected by bridges (final arriount depends on
tenant needs). As such, the Project complies with
J
(and exces) the General Plan park standard.
ed
Source: Vallco Property Owner, Vallco Town Center Project Description, March 27, 2018, Appendix B: City
Standards Consistency Analysis p. 26 ��Aw. calpertig, Q� i,
IL _ -gjiQqie'showdocument` i&
Please note that the first page of the SB 35 plans from where the following table is copied, shows up blurred at
the city website and following pages do not.)
Figure 54: VTC SB 35 Site Plans: Private Residential Open Space, Public Green Roof Park Space
4 o Ae P'n" q
Vin..,,
P441"',
Al,
tv 0, N& tklt "A
1 CA, A,"s"r.�,,V1 114 1%44f,
Source: Vallco Property Owner LLC, Vallco Town Center Site Plans, Project Information Data Table, P-0101,
O.Oria,horne,',sho"-docLiriient'?i_di -- 19614
UN
Figure 55: CMC 13.08.050 Park Land Dedication
N-4113.08.040 Reserved.
A. 11"here the City deters es that a park- or recreational facilitv is to be located in whole or ur part within the
)roposed development, land sufficient in tovojzravhv� and size sliail be dedicated ver the fortnula below.
C, Park land dedication based on development density- Table 13.08,050 indicates the average park- land
dedication required per divelling unit based on development density per the forirrula above (Section 13 08,050.A),
Table 13.0.050: Park Land Dedication Formula Table
Density (DU/acre) Average number of persons./DU Average Park Land Dedication/
DU (in acres)
0-5 '0105
5 - 10 20 .0060
10-20 2,0 0060
20- L8 0054
10- L8 .0054
Senior Citizen Housing I'S '0030
(Or& 14-2125.
I (part) -2014)
....... ...
D1,'NS1TY BONUS DOES NOT ALLOW A PARK. LAND DEDICATION CONCESSION
CMC §19.56.040(3):
Nothing in this section requires the provision of direct financial incentives for the housing development,
including but not limited to the provision of financial subsidies, publicly owned land by the City or the
waiver of fees or dedication requirements. The City, at its sole discretion, may choose to provide such
directfinancial incentives; ()Njjjiji_Qo-dc,, 19.46.040A(3))
TENTAT1V.E'N4AP PROCESS DOE�S NO'f ALLOW A PARK LAND DEDICAT[ON CONCESSION
VTC SB 35 includes a Tentative Map. Cupertino Municipal Code indicates that a subdivider, shall provide park
land pursuant to CMC § 13.08,050.
68
General.
As a condition of approval of a map, the subdivider shall reserve sites, appropriate in area and
location, for parks, recreational facilities, fire stations, libraries or other public uses according to the
standards and formula contained in this article.
(Ord. 14-2125, § 2 (part), 2014; Ord. 2085, § 2 (part), 2011; Ord. 1384, Exhibit A (part), 1986)
CMC § 18.24.030 Requirements.
A. As a condition of approval ofafinal subdivision map orparcel map, the subdivider shall dedicate
land, pay afee in lieu thereof, or both, at the option of the City, for park or recreational purposes at the
time and according to the standards and formula contained in this chapter.
B. The provisions of this chapter are not applicable to the following land use categories:
1. Commercial or industrial subdivisions;
2. Condominium conversion projects or stock cooperatives which consist of the subdivision of air
space in an existing apartment building which is more than five years old when no new dwelling units
are added;
3. Convalescent hospitals and similar dependent care facilities.
(Ord. 14-2125, § 2 (part), 2014; Ord. 2085, § 2 (part), 2011; Ord. 1384, Exhibit A (part), 1986)
CMC 18.24.040 General Standard.
The Park Land Dedication shall be as identified in the City's General Plan and Chapter 13.08.
(Ord. 14-2125, § 2 (part), 2014; Ord. 2085, § 2 (part), 2011; Ord. 1384, Exhibit A (part), 1986)
CMC 18.24.050 Dedication of Land.
A. Where a park or recreational facility has been designated in the open space and conservation
element of the General Plan of the City, and is to be located in whole or in part within the proposed
subdivision to serve the immediate and future need of the residents of the subdivision, the subdivider
shall dedicate land for a local park sufficient in size and topography to serve the residents of the
subdivision.
B. The formula for determining acreage to be dedicated shall be pursuant to Section 13.08.050.
(Ord. 14-2125, § 2 (part), 2014; Ord. 2085, § 2 (part), 2011; Ord. 1384, Exhibit A (part), 1986)
GENERAL PLAN R-ECREATION, PARKS, AND COMMMUNITY SERVIC1,"S ELEMENT
General Plan 2014 Recreation Parks and Community Services Element, Chapter 9:
Strategy 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.
Strategy RPC -2.2.2: New Facilities:
If public parkland is not dedicated, require park fees based on a formula that considers the extent to
which the publicly -accessible facilities meet community need.
69
VALLCO SB 35 PARK CROSS SECTION: TOO SLOPED FOR MANY tJSES
Figure 56: Roof Too Sloped
The amount of park space required at Vallee needs review and very clear information needs to be provided
about what roof areas would be forced on the city residents to pay, and 'accept' as park space under the General
Plan,
XSB 35: PREVIOUS GP CONFLICT WITH PLAN HEIGHTS: NOT COMPLIANT
The Project does not comply with the criteria of SB 35 in that the heights are above those allowable in the
General Plan and thus does not comply with the General Plan and Municipal Code. The Vallco SB 35 Proposal
has to comply with the zoning requirements in Cupertino Municipal Code unless the Municipal Code conflicts
with Cupertino's General Plan. When there is a conflict, Municipal Code is subordinate to the General Plan.
There are two parcels, 316 20 080 and 316 20 081, within the proposed Vallco SB 35 Plan area that are zoned
P(CG). The other parcels in the plan area are all zoned P(Regional Shopping) (QqRqqiqo_tic neral Plan
(`otnarunity Vision 2015-2o ,04(-Ap
�
--- ----MLidj2cjj: Housing Element Technical Report pages 154-155)
Cupertino Municipal Code Table 19.60,060 sets the maximum height for General Commercial (CG) zones at "
30 feet unless otherwise permitted by the General Plan or applicable Specific Plan." "Regional Shopping" has
no defined maximum height in Cupertino Municipal Code. 19.60.060)
The Cupertino General Plan on page LU -17 defers to the Specific Plan for the Vallco Shopping District Special
Area's maximum height. ((LP L .LLQ, p 17, PDF 17) There is no Specific Plan for the Vallco Shopping District
Special Area, Therefore, the General Plan does not set a maximum height for the Vallco Shopping District
Special Area.
Parcels zoned P (Regional Shopping) in the Vallco Shopping District have no maximum height, because neither
Municipal Code nor the General Plan set a maximum height for P (Regional Shopping), However, the
maximum height for parcels zoned P(CG) within the Vallco Shopping District is set by CG zoning and
Municipal Code sets the maximum height for CG zones at 30 feet. Therefore, the two parcels zoned P(CG) in
the Special Area have a 30' maximum height.
The two parcels mentioned are on the West side of Wolfe Rd adjacent to Stevens Creek Blvd. The Vallco SB
35 Proposal has several buildings taller than 30 feet proposed for that area, and that is not allowed by Municipal
Code.
am
Figure 57: County Assessor's Map, Vallco Area
lH
arrro
T,
0 2'"
x sjy
ILI
l_
If7
VALLCO
R-3
— L
CREEK
0
(QqMr1.in�>_1°_ropqqy In immion)
The Project is entitled to concessions under the State Density Bonus Law. On pages 15 and 16 of the Vallco
Town Center SB 35 Development Application Project Description, March 27, 2018, it specifically requests that
(1) Cupertino Municipal Code 19.56.050.E and (2) the minimum square footage of retail specified in the
General Plan be waived. The third request is, "If the City properly identifies an inconsistency with an objective
zoning standard and waiving that standard would achieve cost reductions, this final concession is reserved for
such purposes." Reducing height would result in a cost reduction, especially considering the narrow based -
design of the residential towers which are less than 70' square.
Cupertino DEIR Vallco, p. 162, PDF 198, circulated May 24, 2018:
"Cupertino Municipal Code
The Vallco Special Area is zoned P(Regional Shopping) — Planned Development Regional Shopping
north of Vallco Parkway, and P(CG) — Planned Development General Commercial south of Vallco
Parkway (west of North Wolfe Road). The Planned Development Zoning District is specifically
intended to encourage variety in the development pattern of the community. The Planned Development
Regional Shopping zoning designation allows all permitted uses in the Regional Shopping District,
which include up to 1,645,700 square feet of commercial uses, a 2,500 seat theater complex, and
buildings of up to three stories and 85 feet tall.81
81 Council Actions 31-U-86 and 9-U-90. The maximum building height identified was in conformance
with the 1993 General Plan and were identified in the Development Agreement (Ordinance 1540 File
no. I -DA-90) at that time (Val 1co QhJR, p. 162, PDF 198)
71
Z
U 57
The Project is entitled to concessions under the State Density Bonus Law. On pages 15 and 16 of the Vallco
Town Center SB 35 Development Application Project Description, March 27, 2018, it specifically requests that
(1) Cupertino Municipal Code 19.56.050.E and (2) the minimum square footage of retail specified in the
General Plan be waived. The third request is, "If the City properly identifies an inconsistency with an objective
zoning standard and waiving that standard would achieve cost reductions, this final concession is reserved for
such purposes." Reducing height would result in a cost reduction, especially considering the narrow based -
design of the residential towers which are less than 70' square.
Cupertino DEIR Vallco, p. 162, PDF 198, circulated May 24, 2018:
"Cupertino Municipal Code
The Vallco Special Area is zoned P(Regional Shopping) — Planned Development Regional Shopping
north of Vallco Parkway, and P(CG) — Planned Development General Commercial south of Vallco
Parkway (west of North Wolfe Road). The Planned Development Zoning District is specifically
intended to encourage variety in the development pattern of the community. The Planned Development
Regional Shopping zoning designation allows all permitted uses in the Regional Shopping District,
which include up to 1,645,700 square feet of commercial uses, a 2,500 seat theater complex, and
buildings of up to three stories and 85 feet tall.81
81 Council Actions 31-U-86 and 9-U-90. The maximum building height identified was in conformance
with the 1993 General Plan and were identified in the Development Agreement (Ordinance 1540 File
no. I -DA-90) at that time (Val 1co QhJR, p. 162, PDF 198)
71
Therefore, the building height limits at the Vallco site are:
P(Regional Shopping): 85'
P(CG): 30'
However, there is an air rights easement still in effect which limits part of the site to 26' and has a subterranean
easement:
Figure 58: Air Easement, 26'
granted. Vallco hereby excepts and reserves all rights, title and
interest above the upper plana (i.e. twenty-six (26) feet abovs said
portion of Vallco's real_ property) of the air rights easement and
below the bottom plane of -the subterranean easement hereinabove
offered.
(Perpetual and Exclusive easements Recorded 6/19/1974, Book B135 OR. 370, and Book B135 O.R.
370/Document Number 4877118, City of Cupertino and Vallco Park Ltd.)
Some portions of the air rights easement were intended to be vacated by Cupertino City Council Resolution 06-
007, January 3, 2006. In retrospect, because the cause to vacate (no longer anticipated a transit hub and
associated parking on the site) has returned to the General Plan at some point, and is in the plan today.
X1. SB 35 OBJECTIVE STANDARD FOR TRANSIT HUB NOT COMPLIANT
The Project does not comply with the criteria of SB 35 in that there is no transit hub and thus does not comply
with the General Plan, and Gov. Code § 65913.4 (a).
The General Plan sought to place a transit transfer station at Vallco. The DEIR for Vallco (p 301, PDF 337)
indicates there is a current "...a transfer center for VTA bus routes, and as a transit hub for private shuttles
operated by large companies for employee pick up and drop off. In addition, these employees utilize the mall's
parking garages as park-and-ride lots." The lack of a transit hub is inconsistent with the General Plan.
General Plan Amendments, October 20, 2015 have the following Mobility Policy for Vallco:
Policy M -4.X: Vallco Shopping District Transfer Station. Work with VTA and/or other
transportation service organizations to study and develop a transit transfer station that incorporates
a hub for alternative transportation services such as, car sharing, bike sharing and/or other services.
Unofficial GP, CH 5: Mobility, p. M-19, PDF 19:
POLICY M4.7: VALLCO SHOPPING DISTRICT TRANSFER STATION Work with VTA and/or
other transportation service organizations to study and develop a transit transfer station that incorporates
a hub for alternative transportation services such as, car sharing, bike sharing and/ or other services,
The DEIR for Vallco States:
im
Currently, the project site acts as a transfer center for VTA bus routes, and as a transit hub for private
shuttles operated by large companies for employ=ee pick up and drop of
,f In addition, these employees
utilize the mall's parking garages as park-and-ride lots. As part of the Specific Plan, the existing transit
hub would be upgraded and include additional features such as an information center, drop-off point,
and a bike sharing distribution point. The upgraded transit hub would continue to be used by employer
shuttles to pick up and drop off employees, and is expected to serve residents of the site and employees
living near the site in Cupertino and surrounding local jurisdictions. As part of the project (and General
Plan Buildout with Maximum Residential Alternative and Retail and Residential Alternative), the
upgraded transit hub is assumed to generate the same numbers of shuttle trips and shuttle -related vehicle
trips into the site. The existing shuttle related vehicle trips were estimated from driveway counts and
field observations of shuttles and employee vehicle trips to the site and park-and-ride locations collected
in January 2018. (Vallco DEIR, p. 301, PDF 3 3 7)
VTC SB 35 provides no transit hub and additional parking which would be required according to the General
Plan.
XII. FINANCIAL ANALYSIS FOR DBU CONCESSIONS MISSING: NOT COMPLIANT
The Project does not comply with the criteria of SB 35 due to the missing Financial Analysis for the Density
Bonus Unit concessions required by CMC § CHAPTER 19.56, and especial necessary given the 7 228' towers
above the expansive green roof. The missing Financial Analysis results in the project not complying with Ca.
Gov. Code 65913.4(a). The missing Financial Analysis results in the project not complying with CMC §
19.56.070(5), CMC § 19.56.070 (6), CMC § 19.56.070 (7).
The Project is ineligible for the density bonus requested because the number of concessions exceeds three (CMC
§ 19.56.070 (1)).
Cupertino Municipal Code § CHAPTER 19.56: DENSITY BONUS
"19.56.060 Application Requirements.
a. A project financial report (which may be in the form of a pro forma) demonstrating that the
requested incentive(s) or concession(s) will result in identifiable, financially sufficient, and
actual cost reductions to the housing development and that they are required to provide for
affordable rents or affordable housing costs, as applicable. The financial report shall include the
capital costs, operating expenses, return on investment, loan -to -value ratio and the debt
coverage ratio including the contribution(s) provided by any applicable subsidy program(s);
b. An appraisal report indicating the value of the density bonus and of the incentive(s) or
concession(s); and
c. A use of funds statement identifying the financial gaps for the housing development
with the affordable housing units. The analysis shall show how the funding gap relates to the
incentive(s) or concession(s);
The acceptance of the density bonus application would be based on a subjective decision by the city. See
A. Before approving an application that includes a request for a density bonus, incentive or
concession, waiver or reduction in parking standards, pursuant to this chapter, the decision-making body
shall determine that the proposal is consistent with State Law by making the following findings, as
applicable:
1. That the housing development is eligible for the density bonus requested and any incentives or
concessions, waivers or reductions in parking standards requested.
In
G..)
5. That the requested incentive(s) or concession(s) will result in identifiable, financially sufficient,
and actual cost reductions based upon the financial analysis and documentation provided by the
applicant and the findings of the peer -reviewer, if incentive(s) or concession(s) are requested (other than
mixed use development),
6. That the proposed non-residential land uses within the proposed development will reduce the
cost of the housing development and are compatible with the housing development and the existing or
planned development in the area where the proposed development will be located, if an incentive or
concession is requested for mixed use development.
7. That the development standard(s) for which the waiver(s) are requested would have the effect of
physically precluding the construction of the housing development with the density bonus and
incentives or concessions permitted, if a waiver is requested,
B. If the findings required by subsection (A) of this section, as applicable, can be made, the decision-
making body may deny an application for an incentive or concession or waiver requested pursuant to
Section 19.56.040 only if one of the following written findings as applicable to each type of application,
supported by substantial evidence:
( ... ) 2. That the incentive or concession, or waiver would have a specific, adverse impact upon
public health or safety or the physical environment, and there is no feasible method to satisfactorily
mitigate or avoid the specific, adverse impact without rendering the residential project unaffordable to
low and moderate income households. For the purpose of this subsection, "specific, adverse impact"
means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, written
public health or safety standards, policies, or conditions as they existed on the date that the application
for the residential project was deemed complete; or
3. That the incentive or concession, or waiver is contrary to state or federal law. (N4uni Code,
19.56.070)
XIII. VALLCO SB 35 VIOLATES STATE DENSITY BONUS LAW AND HOUSING
ACCOUNTABILITY ACT- SPECIFIC ADVERSE IMPACTS — SEE VALLCO DEIR
S TATE' DENSITY BONUS LAW REQUIREMENTS PER VALLCO S -B 35 APPLICATION:
Under the State Density Bonus law, the City can only deny an incentive or concession if it finds that an
incentive or concession does not result in identifiable and actual cost reductions; would have a specific,
adverse impact on public health and safety or the physical environment; or would violate state or
federal law. It is the City's burden to provide the evidence supporting such findings. (N7. alis S 3 p.
16, PDF 16)
Gov. Code § 65589.5(d)(2):
(2) The housing development projector emergency shelter as proposed would have a specific, adverse
impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or
avoid the specific adverse impact without rendering the development unaffordable to low- and
moderate -income households or rendering the development of the emergency shelter financially
infeasible. As used in this paragraph, a "specific, adverse impact" means a significant, quantifiable,
direct, and unavoidable impact, based on objective, identified written public health or safety standards,
policies, or conditions as they existed on the date the application was deemed complete. Inconsistency
74
with the zoning ordinance or general plan land use designation shall not constitute a specific, adverse
impact upon the public health or safety.
The State Density Bonus Law requirements have not been met for the fallowing reasons:
1. Concessions requested are in excess of allowable. See Section V of this document.
2. Actual cost reductions were not presented to the city in a financial analysis. See Section VII of
this document.
3. Smaller, alternative projects studied in the Vallco Specific Plan Draft Environmental Impact
Report circulated for review May 24, 2018 show multiple significant negative impacts with
mitigation which will have an adverse impact on public health and safety or the physical
environment.
HOUSING ACC OUNTABIL` Y ACT REQUIRENIEN 1'S PER -\ALLCO SB 35 APPLICATION:
The Vallco SB 35 Applicant states the following:
The City is only permitted to reject a project under these circumstances if there is a preponderance of
evidence that the project would have a significant, unavoidable, and quantifiable impact on "objective,
identified written public health or safety standards, policies, or conditions." Gov. Code §65589.50).
There is no evidence, let alone a preponderance of evidence, that the Project would have any impact on
public health and safety that cannot be feasibly mitigated. A broad range of plaintiffs can sue to enforce
the Housing Accountability Act, and the City would bear the burden of proof in any challenge. Gov.
Code § 65589.5(k). As recently reformed in the 2017 legislative session, the Housing Accountability
Act makes attorney's fees and costs of suit presumptively available to prevailing plaintiffs, requires a
minimum fine of $10,000 per housing unit for jurisdictions that fail to comply with the act within 60
days, and authorizes fines to be multiplied by five times if a court concludes that a local jurisdiction
acted in bad faith when rejecting a housing development. (Vallco SB 35, p. 17, PDF 17)
The Housing Accountability Act requirements have not been met for the following reasons:
I. Vallco SB 35 plan does not comply with the City's objective standards and criteria.
2. Vallco SB 35 plan does not comply with SB 35 (not zoned residential, not 2/3 residential SF, is on a
hazardous materials list).
3. There is "...a preponderance of evidence that the project would have a significant, unavoidable, and
quantifiable impact on "objective; identified written public health or safety standards, policies, or
conditions." Gov. Code §65589.50)" (�_ailce S __5, p. 17, PDF 17)
VALLCO SPECIFIC PLAN DRAFT ENVIRONMENTAL IMPACT REPORT SUMMARY
The Environmental Impact Report for the Cupertino General Plan Community Vision 2015-2040, certified
December 4, 2014 studied the following scenario at Vallco:
The General Pian EIR analyzed the demolition of the existing 1,207,774 square foot mall and
redevelopment of the site with up to 600,000 square feet of commercial uses, 2.0 million square feet of
office uses, 339 hotel rooms, and 800 residential dwelling units within the Vallco Special Area (',illco
1 1 IR, p. xiii, PDF 14)
The SB 35 plan was not studied, nor anything remotely close to it, in the General Plan EIR. The General Plan
EIR, however, found significant unavoidable impacts with mitigation to air quality (AQ -1, AQ -2, AQ -3, AQ -6),
75
noise (NOISE -3, NOISE -5), and traffic (TRAF-1, TRAF-2, and TRAF-6) as tabulated in EIR Table 2.2,
Executive Summaty, Stunmai-
y of Impacts and Mitigation Measures. )LJR, pp. 8-28, PDF 14-34). The
_
DEIR for Vallco Special Area has numerous significant and unavoidable impacts with mitigation, and indicates
the site is on a hazardous materials listing pursuant to Gov. Code § 65962.5
The Draft Environmental Impact Report for the Vallco Special Area Specific Plan, a.k.a. Vallco Shopping
District Specific Plan, circulated for public 45 day review May 24, 2018 studied the following Proposed Project
and project alternatives:
Table 10: Vallco DEIR Summary of Project and Alternatives
Summary of Project and Project -Alteimative Development
Land Uses
Commercial
Office
Hotel
Residential
CiA!c
Green
(square
(square
(rooms)
(dwelling
Space
Roof
footage)
footage)
imits)
(square
(acres)
feet)
Proposed Specific Plan
1 600,000
2,000,000
339
goo
657000
30
Project Alternatives
General Plan Buildout
with Maximum
600,000
1,0001000
339
2,640
65,000
30
Residential Alternative
Retail and Residential
-Altertiative
600,000
0
339
4,000
0
0
OccUllnediRe-Tenanted
Mall Alternative
1,207,774
0
148
0
0
0
(V' I �IL qp 9, p. xiii, PDF 14)
-JJE1
The Vallco SB 35 application has 2,402 residential units, 400,000 SF retail, 1,8 10,000 SF office and a roof park.
The Vallco SB 35 configuration is similar to the Vallco DEIR Project Alternative "General Plan Buildout with
Maximum Residential Alternative" which has 2,640 residential units, 600,000 SF retail, 339 hotel rooms and
only 1,000,000 SF office. Note that 148 of the 339 hotel rooms are under construction and nearing completion.
The Vallco Project Alternatives were based on the Vallco SB 35 plans and the results of the Vallco DEIR apply
to the Vallco SB 35 plan, although, due to the number of significant negative impacts with mitigation, the
Vallco SB 35 plan warrants an environmental impact report on its' specific configuration.
76
Comparison of i:; 35 Plan to Projects studied in varioust
Projects at Vallco Studied in GP EIR or Vallco Special Area DEIR vs. SB 35 Plan
Commercial
Office SF
Hotel Rooms
Residential
Civic
Green
Roof
SF
Dwelling Units
Space
(acres)
General Plan EIR 2014
600,400
2,040,004
339
800
no
no
Vallco Special Area :DEIR 2018
Proposed
600,000
2,000,000
339
800
65,000
30
Project
Project Alternatives
General Plan
Buildout with
Maximum
600.000
t'000,llllll
339
2.640
65,000
30
Residential
Alternative
Retail and
Residential
600,000
0
339
4,000
0
0
Alternative
Occupied/Re-
1207,774
0
148
0
0
0
tenanted Mall
'
Vallco SB 35
4�111,1D1111
l,ll t tl�lltldl
(1.48 under
2,41)2
11
"t p to 26
Plan
construction)
acres'
The Draft Environmental Impact Report for the Vallco Special Area Specific Pian states the following
significant negative impacts with mitigation:
SECTION 6.0 SIGNIFICANT AND UNAVOIDABLE IMPACTS
As discussed in detail in Section 3.0, the project, General Plan Buildout with Maximum Residential
Alternative, and Retail and Residential Alternative would result in the following significant and
unavoidable impacts:
Impact AQ -2: The construction of the project (and General Plan Buildout with Maximum
Residential Alternative and Retail and Residential Alternative) would violate air quality standard or
contribute substantially to an existing or projected air quality violation.
(Significant and Unavoidable Impact with Mitigation Incorporated)
• Impact AQ -3: The operation of the project (and General Plan Buildout with Maximum
Residential Alternative and Retail and Residential Alternative) would violate air quality standard or
contribute substantially to an existing or projected air quality violation.
(Significant and Unavoidable Impact with Mitigation Incorporated)
1 Per Vallco Sl 35 De elo 1tlent ._gip lt',�atipn P. 15 PDF 51
77
• Impact AQ-4: The proposed project (and General Plan Buildout with Maximum Residential
Alternative and Retail and Residential Alternative) would result in a cumulatively considerable net
increase of criteria pollutants (ROG, NOx, PM 10, and/or PM2.5) for which the project region is non-
attainment under an applicable federal or state ambient air quality standard. (Significant and
Unavoidable Impact with Mitigation Incorporated)
• Impact AQ-6: The proposed project (and General Plan Buildout with Maximum Residential
Alternative and Retail and Residential Alternative) would expose sensitive receptors to substantial
construction dust and diesel exhaust emissions concentrations. (Significant and Unavoidable Impact
with Mitigation Incorporated)
• Impact AQ-9: Implementation of the proposed project (and General Plan Buildout with
Maximum Residential Alternative and Retail and Residential Alternative) would cumulatively
contribute to air quality impacts in the San Francisco Bay Area Air Basin.
(Significant and Unavoidable Impact with Mitigation Incorporated)
• Impact NOI- 1: The project (and General Plan Buildout with Maximum Residential Alternative
and Retail and Residential Alternative) would not expose persons to or generation of noise levels in
excess of standards established in the General Plan Municipal Code, or applicable standard of other
agencies. (Significant and Unavoidable Impact with Mitigation Incorporated)
• Impact NOI-3: The project (and General Plan Buildout with Maximum Residential Alternative
and Retail and Residential Alternative) would result in a substantial permanent increase in ambient
noise levels in the project vicinity above levels existing without the project. (Significant and
Unavoidable Impact with Mitigation Incorporated)
• Impact NOI-4: The project (and General Plan Buildout with Maximum Residential Alternative
and Retail and Residential Alternative) would result in a substantial temporary or periodic increase in
ambient noise levels in the project vicinity above levels existing without the project. (Significant and
Unavoidable Impact with Mitigation Incorporated)
• Impact NOI-6: The project (and General Plan Buildout with Maximum Residential Alternative
and Retail and Residential Alternative) would result in a cumulatively considerable permanent noise
level increase at existing residential land uses. (Significant and Unavoidable Impact with Mitigation
Incorporated)
• Impact TRN-I: Under existing with project conditions, the project (and General Plan Buildout
with Maximum Residential Alternative and Retail and Residential Alternative) would conflict with an
applicable plan, ordinance, or policy establishing measures of effectiveness for the performance of the
circulation system; and conflict with an applicable congestion management program, including
standards established for designated roads or highways. (Significant and Unavoidable Impact with
Mitigation Incorporated)
• Impact TRN-2: Under background with project conditions, the project (and General Plan
Buildout with Maximum Residential Alternative and Retail and Residential Alternative) would conflict
with an applicable plan, ordinance, or policy establishing measures of effectiveness for the performance
of the circulation system; and conflict with an applicable congestion management program, including
standards established for designated roads or highways. (Significant and Unavoidable Impact with
Mitigation Incorporated)
• Impact TRN-7: The project (and General Plan Buildout with Maximum Residential Alternative
and Retail and Residential Alternative) would result in a considerable contribution to a significant
cumulative transportation impact. (Significant and Unavoidable Impact with Mitigation
Incorporated) pp. 406-407, PDF 442443)
ill
The following tables from the Vallco Specific Plan DEIR describe the sources and health effects which arrise
from the air pollutants mentioned in the Air Quality portion of the DEIR:
T.h1a I')- TIFID Yloalth Pfforfe of Air Pnflutiante
Table 3.3-1: Health Effects of Air Pollutants
Pollutants
Sources
Primary Effects
Carbon
* Incomplete combustion of fuels and
* Reduced tolerance for exercise
Monoxide (CO)
other carbon -containing substances,
* Impairment of mental filliction
such as motor exhaust
* impairment of fetal development
0 Natural events., such as
# Death it high levels of exposure
decomposition of organic matter
0 Aggravation of some heart
diseases (angina)
Nitro Dioxide
Nitrogen
11
. Motor v
vehicle exhallst
0 Aggravation of respiratory illness
(NO,)
# I-ligh temperature stationary combils-
* Reduced visibility
tion
* Atmospheric reactions
Ozone
0 Atmospheric reaction of organic
0 Aggravation of respiratory and
y
(03)
gases with nitrogen oxides in
cardiovascular diseases
sunlight
* Irritation of eyes
# Impairment of cardlopulmonary
function
Lead
0 Contaminated soil
* Impaimlent of blood functions and
(Pb)
nerve construction
* Behavioral and hearing problems
in children
Suspended
0 Stationary combustion of solid fuels
* Reduced lung function
Particulate
0 Construction activities
* Aggravation of the effects of
Matter
* Industrial processes
gaseous pollutants
(P,M2-i and Mo)
* Atmospheric chemical reactions
0 Aggravation of respiratory and
cardiorespiratory diseases
* Increased cough and chest
discomfort,
* Reduced visibility
Sulfur Dioxide
0 Combustion of sulfur -cont aining
0 Aggravation of respiratory
(SO2)
fossil fuels
diseases (asthina, emphysema)
• Smelting of sullbr-bem*g metal ores
* Reduced lung function
• Industrial processes
* Irritation of eves
* Reduced -visibility
Vallco special Area Specific Plan 51 Draft Emilonmental Impact Report
City of Cupertino Nla� 2018
(�,'alLcoDI-HR, p, 52 PDF 88)
W,
Table 13: DEIR Health Effects of Air Pollutants
Table 3.3-1: Health Effects of -Air Pollutants
Pollutants
Sources
Primail-, Effects
Tome Air
* Cars and trucks, especially diesels
0 Cancer
Contaminants
# Industrial soirees such as chrome
# Chronic eye, hing, or skin tation
platers
0 N-Leurological. and reproductive
0 Neighborhood businesses such as dry
disorders
cleaners and service stations
® Building materials and product
The above significant and unavoidable impacts with mitigation represent: "...a preponderance of evidence that
the project would have a significant, unavoidable, and quantifiable impact on "objective, identified written
public health or safety standards, policies, or conditions." Gov. Code §65589.50)" (YItlqg SIB - 35, p. 17, PDF
17). Setbacks Non -Compliance — Applicant does not Reference Existing Curb
I p��Ili�iip�i III III
Iff, 1 Ill = �� RU Will R* Mi W
The Project does not comply with the criteria of SB 35, in that 475 onsite trees, including misclassified protected
development trees, protected specimen trees, and multiple offsite protected City Street Trees are to be cut down
including trees which are over 40 years old. Approved Development Trees are protected trees under CMC §
14. 18, and Street Trees are protected under CMC § 14.12.080. The Tentative Map and Tree Disposition Plans
show City Street Trees being removed which does not comply with Ca. Gov. Code. 65913.4 (a)(5).
The Vallco site has over 895 trees of which 475 with a diameter greater than 12" are slated to be cut down. The
site design has nearly all of the 50.82 acre site covered with a subterranean parking garage which enables the
developer to maximize the project size. As a comparison, Apple Park has 5.9 Million SF of development on 176
acres while VTC SB 35 is 10.3 Million SF of development on only 50.82 acres. The request to remove nearly
every tree on the property within the subterranean garage footprint is excessive. The Applicant then proposes
trees, however these would be on concrete surfaces in an untested plan with a massive green roof.
The Applicant identifies 6 specimen trees and disregards that "development trees" are also protected specimen
trees and would need to be catalogued with that designation. The location of the development trees is
throughout the project site, ministerial approval to clear cut all but the trees along the perimeter of the site
According to the Vallco DEIR publicly circulated May 24, 2018, the Vallco site has six protected specimen
trees which would require an application and review before removal according to CMC 14.18.
The Vallco SB 35 project application states on Project Application page 8
htr,Cup I or nala' owdocumont?I& 19613
- qqino,/ho
---- g_
"As part of this SP 35 application, a tree removal pen -nit is included to authonize the removal of trees as
further described in the plans and arborist report attached as Appendix
MI
The identified permit is not included as stated in the Vallco 35 Project Application page 8. There is an
application process for the protected trees which are described in the DEIR and the process for their removal is
as follows and contains subjective decision making by the City.
Figure 59: VTC SB 35 Site Plans P-0101, Tree Removal/Replacement - Remove 475 Trees, Relocate 6 Specimen
Trees
Applicant did not disclose the locations of "Approved Development trees" which would have been planted when
the parking lot in front of Sears was remodeled, and all previous permitted projects.
CMC §14.18.020 Definitions.
"Approved development tree(s) " means any class of tree required to be planted or retained as part of
an approved development application, building permit, tree removal permit or code enforcement action
in all zoning districts.
14.18.050 Protected Trees.
Except as otherwise provided in Section 14.18.170, the following trees shall not be removed without
first obtaining a tree removal permit:
B. All mature specimen trees of the following species on private property (see Appendix A):
7. Platanus racemosa (Western Sycamore).
C Approved development trees(s).
CMC §14.18.110 Application and Approval Authority for'Tree Removal Permit.
No person shall directly or indirectly remove or cause to be removed any protected tree without first
obtaining a tree removal permit, unless such tree removal is exempt per Section 14.18.150. An
application for a tree removal permit shall be filed with the Department of Community Development
and shall contain the following information based on the size and type of the protected tree:
The existing protected development trees would have been described in detail in each of the previous
development applications on the Vallco site according to CMC § 14,15: Landscape Ordinance. They must be
catalogued as well. There must be notice and posting per CMC § 14.18.130 for their removal. For example, the
following is the 1975 Landscape Plan for Wolfe Rd. at Stevens Creek Blvd., Vallco Fashion Park Planting Plan
& Details, Wurster, Bernardi and Emmons, Inc. Architects, August 6, 1975, Sht. L-11, PDF 66 of City of
Cupertino plan file:
�yjv )pb oL— ��qjjj �Li, ciav4�,�,lic,,a�-t57,AAC�)i8vI)XI KJY vUTn5EK7Ga?d1=N yiew=ASBUJL
__ I _ A �c _ — ---------
T— 5 I %2CO7 5jjff,'
81
QUANtin,
r
h E-,, `,E; Far, ki E1* ,.. V-"'
1AK � 1
T NX P, 7R, A, 1 �Mff rr AIN2-1 TX.`z
Applicant did not disclose the locations of "Approved Development trees" which would have been planted when
the parking lot in front of Sears was remodeled, and all previous permitted projects.
CMC §14.18.020 Definitions.
"Approved development tree(s) " means any class of tree required to be planted or retained as part of
an approved development application, building permit, tree removal permit or code enforcement action
in all zoning districts.
14.18.050 Protected Trees.
Except as otherwise provided in Section 14.18.170, the following trees shall not be removed without
first obtaining a tree removal permit:
B. All mature specimen trees of the following species on private property (see Appendix A):
7. Platanus racemosa (Western Sycamore).
C Approved development trees(s).
CMC §14.18.110 Application and Approval Authority for'Tree Removal Permit.
No person shall directly or indirectly remove or cause to be removed any protected tree without first
obtaining a tree removal permit, unless such tree removal is exempt per Section 14.18.150. An
application for a tree removal permit shall be filed with the Department of Community Development
and shall contain the following information based on the size and type of the protected tree:
The existing protected development trees would have been described in detail in each of the previous
development applications on the Vallco site according to CMC § 14,15: Landscape Ordinance. They must be
catalogued as well. There must be notice and posting per CMC § 14.18.130 for their removal. For example, the
following is the 1975 Landscape Plan for Wolfe Rd. at Stevens Creek Blvd., Vallco Fashion Park Planting Plan
& Details, Wurster, Bernardi and Emmons, Inc. Architects, August 6, 1975, Sht. L-11, PDF 66 of City of
Cupertino plan file:
�yjv )pb oL— ��qjjj �Li, ciav4�,�,lic,,a�-t57,AAC�)i8vI)XI KJY vUTn5EK7Ga?d1=N yiew=ASBUJL
__ I _ A �c _ — ---------
T— 5 I %2CO7 5jjff,'
81
Notice that the following landscape plan is from 1975 and the two driveways were consolidated to one curb cut
after the gas station closed. There has been only one driveway for several decades. The surveyor obfuscated
their plans and showed two driveways in the plan set.
14.18.120 Action by Director.
Upon receipt of a complete tree removal permit application, the Director of Community Development
or his or her authorized representative will:
A. Review the application pursuant to Section 14.18.180;
B. At the Director's discretion, conduct a site visit, within fourteen days, to inspect the tree(s) for
which removal is requested. Priority of inspection shall be given to those requests based on hazard or
disease; and
C. Send notices or schedule a hearing in accordance with requirements in
Section 14.18.130 and Chapter 19.12.
(Ord. 14-2126, § 3 (part), 2014)
14.18.180 Review, Determination and Findings.
A. The approval authority shall approve a tree removal permit only after making at least one of the
following findings:
1. That the tree or trees are irreversibly diseased, are in danger of falling, can cause potential
damage to existing or proposed essential structures, or interferes with private on-site utility services and
cannot be controlled or remedied through reasonable relocation or modification of the structure or utility
services;
2. That the location of the trees restricts the economic enjoyment of the property by severely
limiting the use of property in a manner not typically experienced by owners of similarly zoned and
situated property, and the applicant has demonstrated to the satisfaction of the approval authority that
there are no reasonable alternatives to preserve the tree(s).
D. The approval authority may require tree replacement(s) or accept a tree replacement in -lieu fee
per Section 14.18.160 in conjunction with a tree removal permit.
Tentative Map plan assumes tree removal of public street trees is "by right". Several mature street trees are
planned to be removed along Stevens Creek Blvd. and Wolfe Rd.
CMC § 14.12.080 Prohibited Acts.
It is unlawful and it is prohibited for any person other than the Tree/Right of Way Supervisor or
his/her designee, for any person to engage in, cause or allow any of the following acts:
A. Plant, trim or cause to be planted, trimmed or removed any public tree.
rtm
Figure 60: Vallco Fashion Park Planting Plan & Details, Wurster, Bernardi and Emmons, Inc. Architects, August
6, 1975, Sht. L-11
A
11
S FV ENS CREEK LD
V
7VT R
7
F)
0
3�
t Q
i
?
d
;>
X,
U
3
Ila,
Vl� 4�-
r-,- v\ -L
2
PLANING "LAN, A'4D DEIAJILS VALLCO FASh�ON PARK
• WUBSTER. BERNARD] AND EMMONS, INC
e ARCHITECTS CUPERTINO,' CALIFORNIA fS
(Vallco Fashion Park Planting Plan & Details by Wurster, Bernardi and Emmons, Inc. Architects, Sht. L-11)
VTC SB 35 "Landscape Lighting and Signage" Planset, "TREE DISPOSITION PLAN - EXISTING
PLANTING - STREET LEVEL", P-0602 shows the following for Wolfe Rd. and Stevens Creek Blvd.:
W
Figure 61: VTC SS 35 "Landscape Lighting and Signage" Planset, "TREE DISPOSITION PLAN - EXISTING
PLANTING - STREET LEVEL", P-0602 — Gray colored street trees to be removed.
However, Google maps show nearly 100 development trees in the Sears parking lot not included.
01
Figure 62: Google maps Sears Parld
XV. EASEMENTS NOT MINISTERIALLY CREATED OR VACATED
The Vallco site has multiple easements which would need to be vacated and/or relocated. Easements are not
ministerially vacated and relocated. See CMC § 18.16.060: Action of Planning Commission—Recommending
Denial upon Certain Findings.
The easements onsite include public utilities, waterline, PG&E, Sanitary Sewer, Public Roadway etc. Each one
would need to be studied for their impact on the plan, but some cross the site in such a way that they make the
project impossible to build because of the subterranean garage structure and/or access needs.
Figure 63: Easement Table from VTC SB 35 Civil Drawings Part 1: P®0306
M
Figure 64: VTC SB 35 Civil Drawings Part 1: P-0306, Existing Easements
VALLCO ROADWAY EASEMENTS
There are two roadway easements which encircle the now -vacant TGIFriday's and Alexander's Steak House
buildings on the north end of the properties and adjacent to N. Wolfe Rd.
The following Google Map shows the roadways in question which are the roads directly around the vacant
TGIFriday's building on the west side and vacant Alexander's Steak House building on the east side of N.
Wolfe Rd.
[a
Figure 65: Google Map Roadway Easement
88
ROADWAY EASEMENT RECODED JULY 29, 1975, BK 526 P 74, NO. 5058714 OF SCC
RECORDS
These easements are granted ".,,for public roadway purposes, together with the right to construct, repair,
operate and maintain any and all public utilities and improvements which shall become necessary for
preservation of the public safety, welfare, or convenience..."
Figure 66: Roadway Easement Recoded July 29,1975, Bk 526 P 74, No. 5058714 of SCC records
NO FEE
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VTC SB 35 Site Plans P-0102 states:
7THE VALLCO TOWN CENTER PROPOSES A REVISED ROADWAY EASEMENT TO RATIONAL -E, E— I
THE TRANSECT STREET PLANNING AS REQUIRED BY THE CUPERTINO GENERAL PLAN
STRATEGY LU -19.1.5. IN THE EVENT THE CITY OF CUPERTINO FINDS AND DETERMINES
NOT IN THE PUBLIC INTEREST TO PROCESS AND APPROVE THE VACATION, RELOCATION, AND
RE -DEDICATION OF THE EAST SIDE AND WEST SIDE ROADWAY AND PUBLIC UTILITY
EASEMENTS WHICH CONNECT N. WOLFE ROAD TO PERIMETER ROAD, IN THE PROPOSED
CONFIGURATION IDENTIFIED ON THIS SHEET, AN ALTERNATE SITE AND EASEMENT PLAN ARE
INCLUDED ON • / '
The Vallco SB 35 Proposal proposes to relocate these roadway easements held by the City of Cupertino
89
Technically, these would actually involve a vacation and the establishment of a new easement. The vacation of a
roadway easement is covered under California Streets and Highway Code, CSIL Div. 9, Par 3, Ch. 3 § 8320-
8325.
CSH § 8320 says that a roadway easement vacation requires a noticed, public hearing:
8320(a) The legislative body of a local agency may initiate a proceeding under this chapter in either of
the following ways:
On its own initiative, where the clerk of the legislative body shall administratively seta hearing by
fixing the date, hour, and place of the hearing and cause the publishing and posting of the notices
required by this chapter.
Upon a petition or request of an interested person, at the discretion of the legislative body, except as
provided in subdivision (e) of Section 8321, where the clerk of the legislative body shall
administratively set a hearing by fixing the date, hour, and place of the hearing and cause the publishing
and posting of the notices required by this chapter.
Ca. Streets and Highway Code § 8324 gives the legislative body of the local agency authority to hear evidence
and make a decision at that hearing.
CSH § 8324 (a) At the hearing, the legislative body shall hear the evidence offered by persons
interested.
(b) If the legislative body finds, from all the evidence submitted, that the street, highway, or public
service easement described in the notice of hearing or petition is unnecessary for present or prospective
public use, the legislative body may adopt a resolution vacating the street, highway, or public service
easement. The resolution of vacation may provide that the vacation occurs only after conditions required
by the legislative body have been satisfied and may instruct the clerk that the resolution of vacation not
be recorded until the conditions have been satisfied.
(Amended by Stats. 1998, Ch. 876, Sec. 23. Effective January 1, 1999.)
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Because roadway easement vacations must follow California Streets and Highway Code 8320-8325, none of the
SB 35s requirements that project approval be subject to a "streamlined, ministerial approval process" apply,
because the vacation of a roadway easement is not covered by Cupertino Municipal Code, Roadway vacation is
governed by State Law, and if the Cupertino City Council finds that a roadway easement is "necessary for
present or prospective public use", State Law gives the Cupertino City Council the authority to reject the
request.
Figure 47 below, shows the existing roadway easements and several others which need to be vacated/relocated,
ME
Figure 67: VTC SB 35 Civil Plans Part 1 P-0306, Existing Easements
a
Figure 68: Vallco Roadway Easement Various Plans
M
ROADWAY EASEMENT BLOCKS UNDERGROUND PARKING STRUCTURE BELOW IT
VTC SB 35 — Plans Require a redesign
Site Plans P -0202A, PDF 8, show the alternate building forms should the roadway easements not be
ministerially vacated (which they may not be) however, their plan does not take into account the roadway
easements include not just public ingress/egress rights, but "...the right to construct, repair, operate and maintain
any and all public utilities and improvements which shall become necessary for preservation of the public
safety, welfare, or convenience..." (Roadway Easement Recoded July 29, 1975, Bk 526 P 74, No. 5058714 of
SCC records). The underground parking structure cannot happen due to the utilities rights associated with the
roadway easement.
Figure 69: Site Plans P -0202A, PDF 8
It goes without saying that since the Cupertino City Council has the authority to reject the proposed roadway
easement changes, the City Council has the authority to reject the alternate plan proposed too. The City Council
93
only has to find that the present roadway easements are "necessary for present and prospective public use" to
reject the vacation. No more and no less.
PLANNING COMMISSION AND CITY COUNCIL MAY REJECT TENTATIVE MAP
CMC § 18.16.060: Action of Planning Commission—Recommending Denial upon Certain Findings.
A, The tentative subdivision map may be recommended for denial by the Planning Commission on
any of the grounds provided by City ordinances or the State Subdivision Map Act.
B. The Planning Commission shall deny approval of the tentative map if it makes any of the
following findings:
1. That the proposed map is not consistent with applicable general and specific plans;
2. That the design or improvement of the proposed subdivision is not consistent with applicable
general and specific plans;
3. That the site is not physically suitable for the type of development;
4. That the site is not physically suitable for the proposed density of development;
5. That the design of the subdivision or the proposed improvements are likely to cause substantial
environmental damage or substantially and avoidably injure fish or wildlife or their habitat; provided,
however, the City may approve a tentative subdivision map if an environmental impact report was
prepared with respect to the proposed subdivision and detailed findings were made pursuant to Public
Resources Code Section 2108 1 (a)(3) that specific economic, social, or other considerations make
infeasible the mitigation measure or project alternatives identified in the environmental impact report;
6. That the design of the subdivision or the type of improvements is likely to cause serious public
health problems;
7. That the design of the subdivision or the type of improvements will conflict with easements
acquired by the public at large for access through or use of property within the proposed subdivision. In
this connection, the governing body may approve a map if it finds that alternate easements for access or
for use will be provided, and that these will be substantially equivalent to ones previously acquired by
the public. This subsection shall apply only to easements of record or to easements established by
judgment of a court of competent jurisdiction and no authority is hereby granted to a legislative body to
determine that the public at large has acquired easements for access through or use of property within
the proposed subdivision. This provision does not apply to condominium projects or stock cooperatives
which consist of the subdivision of air space in an existing structure unless new units are to be
constructed or added.
XVI. SB 35 OBJECTIVE
• IA BUILDING SETBACK: INCOMPLETE. NOT COMPLIANT
Applicant is required to maintain a 1:1 view angle according to the General Plan and this requirement is
included in the VTC SB 35 Project Description p. 7, PDF 7:
4.1.2 Building Set Backs
Stevens Creek Boulevard and North Wolfe Road are considered "Boulevard (Arterial)" per the General
Plan Mobility Element Chapter 5, Figure M-2 Circulation Network. The building blocks that front these
streets are designed to meet the General Plans required 1:1 set -back plane from the existing curb.
However, the Applicant makes a subjective decision about the location of the "existing curb" and does not show
the true existing curb location, which results in the plan being non-compliant.
94
Complicating the matter is the fact that the Applicant does not show the dimensions of the existing curb from
the centerline of the street and the distances to the property line and the actual building setbacks. Considering
the shoddy work of the surveyor in the Tentative Maps, and the fact that the curb ends up very close to the
property line, makes the subjective choice an error. Further, the plans call for a widening of Wolfe Rd. with
thorough lanes in portions which would move the curb lines closer to the property line. It would seem that in
applying for street widening in the Tentative Map, that the future curb line should be the starting point for the
setback line.
VTC SB 35 Application, Site Diagrams, P-0508, PDF 8 shows only two cross-sections, one on Wolfe Rd. and
one on Stevens Creek Blvd. for setback compliance. The problem with these sections are that they include too
few dimensions, do not reference the street centerline and property line, and do not locate the existing curb,
which has a variable location in relation to the centerline of N. Wolfe Rd. The City of Cupertino Street Plans
include the N. Wolfe Rd. and Stevens Creek Blvd. "As Built" plans by De Leuw, Cather & Co., see sheets C6 -
C8 which are shown later in this section for reference.
Figure 70: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8
M
Figure 71: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8
Figure 72: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8
0
Figure 73: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8
Curb line on the west side of N. Wolfe Rd is obviously closer to the property line than the Setback Compliance
figures show, and the plans are drawn too poorly, with no dimensions. This is not compliant with city standards.
Figure 74: VTC SB 35 Civil Plan Set 1: Existing Surface Contours, N. Wolfe Rd., P-0302 (North is to left)
"As -Built" Street Plans for Wolfe Road, De Leuw Cather & Co. Shts. C5-C7, 1975, last revision 6177:
jjgpas;_r' v,N f.dr f�L,��xr.cc����'��� c ���a�za� e�_heg457'A� �C=1� b�.i� �)l:aI�IY y�Tt £a��1.1 , Ga'ci1--(& revie ��SB TIL,.
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Figure 75: As -Built Wolfe Rd. Street Plan (Curb Line) 113
(De Leuw, Cather & Co.)
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Figure 76: As -Built Wolfe Rd. Street Plan (Curb Line) 2/3
(De Leuw, Cather & Co.)
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Figure 77: As -Built Wolfe Rd. Street Plan (Curb Line) 313
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100
Figure 78: GPA -2015, LU -1 Community Form Diagram
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COMMUNITY FORM DIAGRAM
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Expanding the Building Planes table in the lower right comer of the Community Form Diagram, we find the 1:1
slope line from the curb requirement. If the project is anticipating a curb redesign, it would be logical that the
new curb location would be where the building plan would be measured from.
Figure 79: GPA -2015, Building Planes 1:1, Expanded View of LU -1: Community Form Diagram
Building Planes:
• Maintain the primary building bulk below a 1:1 slope line drawn from the arter;ailboulevard curb line or lines except for the Crossroads Area.
• For the Crossroads area, see the Crossroads Streetscape Plan.
• Far projects adjacent to residential areas: Heights and setbacks adjacent to residential areas will be determined during project review.
For the North and South Vallco, Park areas (except for the VaRco Shopping District Special Area): Maintain the primary building bulk below a 1.51 (i.e., 7,5
feet of setback for every I foot of building height) slope line drawn from the Stevens Creek Blvd. and Homestead Road curb lines and below 1:1 slope
fine drawn from Wolfe Road and Tantau Avenue curb line.
Rooftop Mechanical Equiptment: Rooftop mechanical equipment and utility structures may exceed stipulated height limitations if they are
enclosed, centrally located on the roof and not visible from adjacent streets,
Priority Housing Sites. Notwithstanding the heights and densities shown above, the maximum heights and densities for Priority Housing Sites
identified in the adopted Housing Element shaft be as reflected in the Housing Element,
While the Applicant references Figure M-2, which does show Wolfe Rd. and Stevens Creek Blvd. as Boulevards
(Arterials), the General Plan Amendment LU -1 Community Form Diagram above, details the 1:1 setbacks.
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Expanding the Building Planes table in the lower right comer of the Community Form Diagram, we find the 1:1
slope line from the curb requirement. If the project is anticipating a curb redesign, it would be logical that the
new curb location would be where the building plan would be measured from.
Figure 79: GPA -2015, Building Planes 1:1, Expanded View of LU -1: Community Form Diagram
Building Planes:
• Maintain the primary building bulk below a 1:1 slope line drawn from the arter;ailboulevard curb line or lines except for the Crossroads Area.
• For the Crossroads area, see the Crossroads Streetscape Plan.
• Far projects adjacent to residential areas: Heights and setbacks adjacent to residential areas will be determined during project review.
For the North and South Vallco, Park areas (except for the VaRco Shopping District Special Area): Maintain the primary building bulk below a 1.51 (i.e., 7,5
feet of setback for every I foot of building height) slope line drawn from the Stevens Creek Blvd. and Homestead Road curb lines and below 1:1 slope
fine drawn from Wolfe Road and Tantau Avenue curb line.
Rooftop Mechanical Equiptment: Rooftop mechanical equipment and utility structures may exceed stipulated height limitations if they are
enclosed, centrally located on the roof and not visible from adjacent streets,
Priority Housing Sites. Notwithstanding the heights and densities shown above, the maximum heights and densities for Priority Housing Sites
identified in the adopted Housing Element shaft be as reflected in the Housing Element,
While the Applicant references Figure M-2, which does show Wolfe Rd. and Stevens Creek Blvd. as Boulevards
(Arterials), the General Plan Amendment LU -1 Community Form Diagram above, details the 1:1 setbacks.
ME
Figure SO: Unofficial GP -2015, Figure M-2, Circulation Network
44
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P-0831 and P-0832 Building Sections, Architectural Plans Part 3, have dimensioning errors where the line
indicating where the existing curb is does not point to where the 1:1 setback should begin. Additionally, the
existing curb line is not from field measurements, but is a subjective sort of averaging which is unacceptable
under SB 35 making the setbacks not compliant,
Figure 81: Building Section, Architectural Plans Part 3, P-0831, indicates 1:1 setback lines,
reference lines do not match up
103
Figure 82 Building Section, Architectural Plans Part 3, P-0831, Walkway over N. Wolfe Rd. Reference lines do not
match up
XVII. SUBDIVISION MAP ACT — NOT COMPLIANT
The Tentative Map was not made public for review until the week of June 10', 2018, prior to that they were
only available by request. The plans were submitted March 27, 2018.
104
The plans violate the Subdivision Map Act:
1. There is a gross error showing an extra existing driveway on Stevens Creek Blvd., with associated
minor errors showing parking striping in said driveway, and a fictitious topographic contour.
2. Violates Gov. Code § 66477: insufficient parkland provided.
XVIII. TENTATIVE MAP AND CIVIL ENGINEERING PLANS SHOW NONEXISTENT
EXISTING DRIVEWAY, AND DO SO INCONSISTENTLY — NOT COMPLIANT
As part of the Tentative Map submittal, the plans are to consolidate parcels at the Vallco site, from the Civil
Plans there are two driveways drawn on the east side of the Sears Building along Stevens Creek Blvd. however,
only one exists. When looking at the official Tentative Map submitted, the nonexistent driveway shows up
again, however it also has confusing parking spaces drawn through it. The plans need to be resubmitted with the
erroneous driveway removed. This gross error give the appearance of extra access to the site which does not
exist, this is not a trivial error.
The city made the Tentative Map submitted available online the week of June 10', 2018. The plans, excluding
the Tentative Map were available the week of May 27".
The plans show a nonexistent existing driveway on Stevens Creek Blvd. This is not allowed under the
Subdivision Map Act, Subdivided Lands Act, and the CMC § 18.16 Tentative Subdivision Maps. Given that
Google Maps allows a person to virtually "walk" up and down the street and verify there is only one driveway
on the east side of the Sears building on Stevens Creek Blvd., this negligence is a sign that a perfunctory site
report was performed. The people of Cupertino deserve more than slapdash work. The people of Cupertino
deserve more than a slapdash Vallco proposal. The following maps share the nonexistent driveway image:
• P-0301 Existing Surface Plan
• P-0302 Existing Surface Contours (with fabricated contours)
• P-0303 Existing Parcels
• P-0305 Existing Offsite Rights
• P-0306 Existing Easements Plan
• The Tentative Map package, TM 2.8
• P-0502 Site Diagrams — Pedestrian Circulation — Street Level
• P-0503 Site Diagrams — Pedestrian Circulation — Green Roof Level
• P-0504 Site Diagrams — Bicycle Circulation
• P-0505 Site Diagrams — Vehicular Circulation (shows car movements in and out of the nonexistent
driveway)
• P-0506 Site Diagrams — Transit Circulation
• P-0510 Site Diagrams — Construction Sequences
The following two maps do not share the nonexistent driveway:
• Tentative Map TM 3.8, Tree Disposition
• Tentative Map TM 4.8 Existing Public and Private Easements and Boundaries
• Tentative Map TM 6.8 Grading and Drainage Plan
SURVEYOR OF RECORD LICENSE INFORMATION
Name: JOHNSON, KELLY SANFORD
License Type: Professional Land Surveyor
License Number: 48759
License Status: Active
First Issued Date: Dec 7 2011
License Issued: Mar 7 2017
Expiration Date: Mar 30 2019
Address: GREENACRES WA 99016
ENGINEER OF RECORD LICENSE INFORMATION
Licensee Name: BROWNING CHAD JAMES
License Type: CIVIL ENGINEER
License Number: 68315
License Status: CLEAR Definition
Expiration Date: September 30, 2019
Address: 778 LAYTON ST
City: SANTA CLARA
State: CA
Zip: 95051
County: SANTA CLARA
Actions: No
What the nonexistent driveway does, is give the appearance that there are two driveways plus Perimeter Rd., a
private road which is on the west side of the Sears Automotive building, Then, when the plans show the two
driveways that have not been at the site for at least 23 years, it looks like very little is modified. Then the
Applicant can claim only a minor modification to Stevens Creek Blvd, and have ministerial approval under SB
35. A driveway is an access point for the property, and worth a lot to the developer, Vallco Town Center
Measure D, upon review of the Environmental Assessment, April 2016, shows the same nonexistent driveway.
However, they also photographed the area, and Google Maps has been offering "street view" for several years
Figure 83: Google Maps Street View - Single Driveway
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Figure 84: VTC SB 35 Civil Drawings Part 1, Existing Parcels, P-0303
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Figure 85: Nonexistent Driveway, Existing Surface Plan, P-0301
In this very confusing expanded and annotated view of Tentative Map TM 2.8 the driveway edge line is drawn,
and the topographic lines are drawn as if there is an object causing it to create a shape, like a curbed planter
perhaps. The plans also show striping for parking spaces across the driveway opening when there obviously can
be no parking there. Additionally, the driveway was embellished with a STOP sign.
Figure 86: Nonexistent Driveway on Tentative Map TM 2.8 - Annotated View
Expanded View of the "fake" driveway shown in the plans, especially the Tentative
Map, TM 2.8.
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109
Figure 87: Nonexistent Driveway on Civil Engineering "Existing Surface Contours" P-0302 of plans — Annotated
View
Expanded View of Civil Engineering Plans "Existing
Surface Contours" P-0302, "fake" driveway shows
throughout planset
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have parking space striping
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110
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Figure 89: Google Map vs. SB 35 P-0302 Existing Surface Contours Plan with Nonexistent Driveway
112
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Figure 90: Nonexistent Driveway, Existing Surface Plan, P-0301 Expanded View — Nonexistent Driveway
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Figure 91: VTC SB 35 Existing Parcels — Nonexistent Driveway
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Figure 92: VTC SB 35 Existing Offsite Rights, P-0305 — Nonexistent Driveway
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Oddly, the Tentative Subdivision Map TM 4.8 does NOT show the nonexistent driveway, and it shows the
parking lot layout more correctly, showing the sidewalk which runs north -south and the curving city owned
sidewalk in the public right of way on the east side of the driveway to the east of the Sears building. Why show
it once correctly? Why have the same surveyor show the driveway configured differently on different plans?
Plan set must be resubmitted with correct driveways.
116
NOT FOR CONSTRUCTION
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Oddly, the Tentative Subdivision Map TM 4.8 does NOT show the nonexistent driveway, and it shows the
parking lot layout more correctly, showing the sidewalk which runs north -south and the curving city owned
sidewalk in the public right of way on the east side of the driveway to the east of the Sears building. Why show
it once correctly? Why have the same surveyor show the driveway configured differently on different plans?
Plan set must be resubmitted with correct driveways.
116
Figure 93: Tentative Subdivision Map Vallco Town Center Existing Public and Private Easements and Boundaries -
Does NOT show nonexistent driveway
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Figure 94: Expanded View of TM 6.8 — (Notice the driveway is drawn correctly — see fight lines, heavier lines are
proposed)
118
SUBDIVISION MAP ACT GOV. CODE § 66477. QUIMBY ACT; PARK AND
RECREATIONAL PURPOSES
The Tentative Map indicates that parkland must be according to the census -derived multiplier used in the
General Plan EIR (2,94 residents per unit) and results in a total of 21.2 acres, the park land provided in the SB
35 application is insufficient and thus the plan is not compliant with Ca. Gov. Code § 66477.
(a) The legislative body of a city or county may, by ordinance, require the dedication of land or impose
a requirement of the payment of fees in lieu thereof, or a combination of both, for park or recreational
purposes as a condition to the approval of a tentative map or parcel map, if all of the following
requirements are met:
(1) The ordinance has been in effect for a period of 30 days prior to the filing of the tentative
map of the subdivision or parcel map.
(2) The ordinance includes definite standards for determining the proportion of a subdivision to
be dedicated and the amount of any fee to be paid in lieu thereof. The amount of land dedicated
or fees paid shall be based upon the residential density, which shall be determined on the basis
of the approved or conditionally approved tentative map or parcel map and the average number
of persons per household. There shall be a rebuttable presumption that the average number of
persons per household by units in a structure is the same as that disclosed by the most recent
available federal census or a census taken pursuant to Chapter 17 (commencing with Section
40200) of Part 2 of Division 3 of Title 4. However, the dedication of land, or the payment of
fees, or both, shall not exceed the proportionate amount necessary to provide three acres of
park area per 1, 000 persons residing within a subdivision subject to this section
XIX. PROJECT APPLICATION CLAIMS CMC DOES NOT ADMINISTER BMR PROGRAM
The Project does not comply with the criteria of SB 35 in that the Applicant claims the Cupertino Municipal
Code would not be applicable to the administration of the BMR program, thus, without the BMR program
administration the project does not comply with Gov. Code § 65913.4 (a)(4)(13)(ii).
Gov. Code § 65913.4 (a)(4)(B)(ii):
(ii) The locality did not submit its latest production report to the department by the time period required
by Section 65400, or that production report reflects that there were fewer units of housing affordable to
households making below 80 percent of the area median income that were issued building permits than
were required for the regional housing needs assessment cycle for that reporting period, and the project
seeking approval dedicates 50 percent of the total number of units to housing affordable to households
making below 80 percent of the area median income, unless the locality has adopted a local ordinance
that requires that greater than 50 percent of the units be dedicated to housing affordable to households
making below 80 percent of the area median income, in which case that ordinance applies.
119
Figure 95: VTC SB 35 Application, Vallco Town Center Project Description City Standards Consistency Analysis,
p. 55, PDF 80
Cupertino's BMR Housing Mitigation Program Procedural manual, P. 7, PDF 11 states
2.3.7 Agreement between Developer and City
A. Prior to recordation of a final or parcel map or issuance of any building permit, whichever is earlier,
an affordable housing agreement shall be recorded against the property. The affordable housing
agreement shall include, but not be limited to, the following:
1. Total number of BMR units, type, location, square footage and number of bedrooms, and
construction scheduling of market -rate and BMR units;
2. Provisions to ensure concurrent construction and completion of BMR and market -rate units;
3. Affordability levels for each BMR unit;
120
t
RUL -1 WMIT T07567YI-pruerri �X� Not applicable.
a local government's
affordable housing ordinance
with limited exceptions. S8 35
provides that a focal
affordable housing ordinance
Will apply only if the
ordinance "requires that
units be dedicated to housing
affordable to households
making below Bo percent of
the area medfan income."
Because the City's affordable
housing ordinance requires
only 15 percent of new
residential units to be
dedicated as afforclable, it
does not apply.
IL
Cupertino's BMR Housing Mitigation Program Procedural manual, P. 7, PDF 11 states
2.3.7 Agreement between Developer and City
A. Prior to recordation of a final or parcel map or issuance of any building permit, whichever is earlier,
an affordable housing agreement shall be recorded against the property. The affordable housing
agreement shall include, but not be limited to, the following:
1. Total number of BMR units, type, location, square footage and number of bedrooms, and
construction scheduling of market -rate and BMR units;
2. Provisions to ensure concurrent construction and completion of BMR and market -rate units;
3. Affordability levels for each BMR unit;
120
4. Provisions for income certification and screening of potential occupants of BMR units; 5.
Resale control mechanisms; 6. Financing of ongoing administrative and monitoring costs (City
and private);
XX. PLAN ALTERNATIVE IS A SECOND PLAN, INCOMPLETE FOR REVIEW
Gov. Code § 65913.4(a): "(a) A development proponent may submit an application for a development...
Applicant may submit "an application", applicant submitted two plans: the main plan set and one referred to
possibly minimally in the VTC SB 35 Development Application Project Description, Appendix B: City
Standards Consistency Analysis, p. 41, PDF 66, and two pages of inserted plan sheets which show up in the
Civil Plan Set as "Alternate Proposed Public Utility and Access Easements in the Civil Plans Part 1, P -0307.A,
PDF 8 and also shows up in the Site Plan set as "Master Site Plan — Street Level — Alternate" found in the Site
Plan set P -0202A, PDF 8. The plan set is incomplete for review, the subterranean garage under utility easement
has not been contemplated and the main Project submitted also did not contemplate the utility easement included
in the roadway easements at the former TGIFriday's site and the Alexander's Steak House locations.
Main plan: "Master Site Plan — Street Level" in the Civil Plans Part 1, P-0307, PDF 7:
Figure 96: Master Site Plan - Street Level
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121
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Below is an expanded view of the "Master Site Plan — Street Level" in the Civil Plans Part 1, P-0307, PDF 7:
Figure 97: Master Site Plan - Street Level, expanded view
m
The following is the alternative inserted in the plans as "Master Site Pian — Street Level — Alternate" in the Site
Plan set P -0202A, PDF 8
Figure 98: Master Site Plan - Street Level - Alternate
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7-7
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123
Below is an expanded view of the "Master Site Plan — Street Level — Alternate" in the Site Plan set P -0202A,
PDF 8:
Figure 99: Master Site Plan - Street Level - Alternate, expanded view
124
The following is the second sheet of the alternative plans "Alternate Proposed Public Utility and Access
Easements" in the Civil Plans Part 1, P -0307.A, PDF 8:
The minimal reference to "alternatives" shows up only one place in the VTC SB 35 Development Application
Project Description, Appendix B: City Standards Consistency Analysis, p. 41, PDF 66 where the Applicant
provides an analysis of compliance with CMC § 18.16.050, Action of Planning Commission—Recommending
Approval—Required Findings:
Consistent. If approval of the Planning Commission is required, it "shall not in anyway inhibit, chill, or
preclude the ministerial approval provided by" SB 35 and must be based on objective standards that are
uniformly verifiable by reference to an external and uniform benchmark pursuant to Gov. Code §
65913.4(a)(5), (c). Although the denial findings in 18.16.060 are subjective because they require
judgment by decision -makers and thus are not applicable, none of those findings can be made: the map
and the Project are consistent with the general plan; the site is physically suitable for the Project; the site
is physically suitable for the Project's density (as confirmed by the General Plan); the Proposed project
is not likely to cause substantial environmental damage; the Project will not cause serious public health
problems; and the Project will not conflict with public easements, or if there is conflict, alternative
easements will be provided that are substantially equivalent to existing easements.
[to
However, the project is not compliant with CMC § 18.16.060, for the following reasons:
1. Denial findings would be based on CSH § 8320 which says that a roadway easement vacation requires a
noticed, public hearing. It can not be 'taken' by right.
1 The 'main' project and alternative is not consistent with the General Plan. There is no accepted EIR
with over 800 residential units at Vallco.
3. The General Plan has no determination that the site is suitable for the project's density (main or
alternative)
4. The DEIR circulated for Vallco Specific Plan does show a multitude of significant negative impacts
ABOVE those found in the General Plan EIR.
5. The project conflicts with public easements, and the alternative easements provided are NOT
substantially equivalent to the existing easements because they render the project unbuildable and the
project alternative plan cannot be built as shown (they cannot excavate below the road because of the
underground utilities.)
The plan Alternative, is a second plan and needs a second S13 35 submittal and full review. The number of SF,
percentages and objective standards would all need to be submitted for review and the package is currently
incomplete. While it could potentially become the basis of an effort at compliancy if the original submittal
failed, the assumption that two plans are under review is not correct.
Lastly, the site remains on a hazardous materials list which renders it ineligible for SB 35 ministerial
streamlining pursuant to Gov. Code § 69513.4 (a)(6)(E),
City of Cupertino. "GPA -2014 EIR." General Plan Amendment 2014 Environmental Impact Report. Cupertino,
7 October 2014.
Cupertino Property Information. n.d. 4 June 2018.
<http://64.165.34.13/weblink/O/edoc/391441/Exhibit%2OCC`/`2010-07-
14%201%20Draft%20EIR.pdPsearchid=5baf2925-bdeb4f76-a575-eI Ibcc9ab7da>.
De Leuw-, Cather & Co. W64(e Rd. Improvements, Construction & Paving Details 'As -Built ". Cupertino, 1975:
15 June 2018.
<https://www.dropbox.coin/sh/cpwaenv4whea457/AACbi8yDXHgKlYiqvUm5EK7Ga?dl=O&preview
=A-Sl3UILT+51%2C075.pdf#>.
"GP 2014 and Amendments 2015." Cupertino Community Vision 2040 (Dec. 4, 2014) and Amendments to
Community Vision 2040 Resolution No. 15-08 7, October 20, 2015. Cupertino, 4 December 2014.
<http://www.ctipertino.org/our-city/departments/conunlinity-development/planning/general-
plan/general-plaii/arcbived-general-plans>.
126
"GP EIR." Cit
y of 'Cupertino General Plan Environmental Impact Report. Cupertino, 7 October 2014.
<http://64.165.34.13/weblink/O/edoc/391441/Exhibit`/`20CC%2010-07-
14%201%2ODraft%20EIR.pdOsearchid=5baf2925-bdeb4f76-a575-eI Ibcc9ab7da>.
"GP LU." Cupertino General Plan Community Vision 2015-2040, Chapter 3: Land Use and Community
Character Element. Cupertino, 20 October 2015.
<http://www.cupertino.org/home/showdocument?id=12729>.
"GP: AppB, HE." Cupertino General Plan Community Vision 2015-2040, Appendix B: Housing Element
Technical Report. 20 October 2015. <http://www.cupertino.org/home/showdocument?id=12717>.
"Muni Code." City of Cupertino Municipal Code. n.d.
<http://Iibrary.amlegal.com/nxt/gateway.dll/Califomia/cupertino/cityofcupertinocalifomiamunicipalcod
e?f--templates$fn--default.htm$3.0$vid=an-degal:cupertino—ca>.
"SB 35 Law." Ca. Senate Bill 35, Chapter 366, An act to amend Sections 65400 and 65582.1 of and to add and
repeal Section 65913.4 of the Government Code, relating to housing. 29 September 2017.
<https://Ieginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill—id=201720180SB35>.
Vallco DEIR. "Draft Environmental Impact Report, Vallco Special Area Specific Plan, SCH# 2018022021."
Cupertino, 24 May 2018. <http://www.cupertino.org/our-city/depaTtments/community-
development/planning/major-projects/vallco>.
Vallco Fashion Park Planting Plan & Details by Wurster, Bernardi and Emmons, Inc. Architects, Sht. L-11.
Cuperitno, 6 August 1975. 15 June 2018.
<https://www,dropbox.com/sh/cpwaenv4whea457/AACbi8yDXHgKlYiqvUm5EK7Ga?dl=O&preview
=ASBUILT+51%2C075.pdf#>.
VTC SB 35 App. "Vallco Town Center SB 35 Development Application." Cupertino, 27 March 2018.
<http://www.cupertino.org/home/showdocument?id=19613>.
"VTC SB 35 Plan." Vallco Town Center SB 35 Development Application Architectural Drawings Part 3.
Cupertino, 27 March 2018. <http://www.cupertino.org/home/showdocument?id=19621>.
Wolfe Rd. Site Improvements by Sandis. Vol.
https://www,dropbox.com/sh/cpwaenv4whea457/AACbi8yDXHgKlYiqvUm5EK7Ga?dl=O&preview--1
MP+52%2C388.pdf. Cupertino, 15 March 2006. 15 June 2018.
<https://www.dropbox.com/sh/cpwaenv4whea457/AACbi8yDXHgKlYiqvUm5EK7Ga?dl=O&preview
=IMP+52%2C388.pdf>.
127