CC 08-21-2018 Item No. 24 Petition for Reconsideration - Written Communication Matteoni
01aughlin
Hechtman August 21, 2018
L A W Y E R S
Norman E. Nlatteo„i Advance copy via email to citycouncil(aD_cuportino.org
Peggy bl. O'Launhlin
Mayor Darcy Paul and Members of the Cupertino City Council
8radle,• i1. Matteoni Cupertino City Hall
Barton G. xechtman 10300 Torre Avenue
Cerry Houlihan Cupertino, CA 95014-3202
Re: Objections Concerning Reconsideration
(August 21 Hearing) 10234 Scenic Boulevard
Dear Mayor Paul and Members of the City Council:
On behalf of Welkin International I hereby lodge the following
objections regarding the potential actions of the City Council
concerning the reconsideration hearing tonight pursuant to the
recently-released staff report regarding that hearing.
A. The City Council Must Hold A Reconsideration Hearing.
The staff report recommends that the City Council deny the
petition outright on the basis that it does not meet the requirements
of the City's Reconsideration Ordinance (CMC Section 2.08.096),
and therefore not hold a reconsideration hearing. Such action
would be a clear violation Section 2.08.096.
The Reconsideration Ordinance states "upon timely receipt
of a petition for reconsideration, the City Clerk shall schedule a
reconsideration hearing...” Nowhere in the Reconsideration
Ordinance is the City empowered to engage in a two-step process
where it first decides whether it will reconsider, and then holds a
reconsideration hearing. While many municipalities have
ordinances that include that two-step process, Cupertino does not.
Pursuant to Section 2.08.096, the City's obligation to hold the
reconsideration hearing is mandatory.
The staff report attempts to support its recommendation that
the City Council decide to not hold a reconsideration hearing on the
theory that the petition submitted on May 29th (the "Petition") does
not "meet the criteria" set forth in the Reconsideration Ordinance.
That contention is patently false.
848 The Alameda
I San Jose, CA 95126
ph. 408.293.4300
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Mayor Darcy Paul and August 29, 2098
Members of the Cupertino City Council Page 2
Section 2.08.096 states "a petition for reconsideration shall specify, in
detail, each and every ground for consideration." That same subsection then
explicitly limits the grounds that can be stated: "the grounds for consideration.
are limited to the following:"
The Petition specified three times that it was based on the ground stated
in Section 2.08.096.B.5.c— "rendering a decision in which the findings of fact
were not supported by the evidence":
• The Petition states on page 4 "the Property Owner contends that
the Planning Commission findings are not supported by any
evidence",
• then on page 5 "No facts or evidence were cited to support the
conclusion of the three-person majority of the Planning
Commission",
• and also on page 5 "Nothing in the record supports the assertions
that grading, drainage or infrastructure were not adequately
addressed."
Each of these statements which clearly articulate the ground for
reconsideration as stated in the Reconsideration Ordinance are supported by
elaboration and detail.
Staff's position in the staff report is essentially to disagree with the ground
stated in the Petition. For example, regarding the asserted ground that the record
does not support the-finding regarding grading, drainage or infrastructure staff
responds that the Planning Commission and City Council
"were concerned about the large quantities of grading
required to implement the project, including required drainage
and infrastructure improvements and retaining walls required
to stabilize the slope in order to support the future
improvements on the site (including any homes)."
That statementin the staff report does not invalidate the ground stated in the
Petition, it just disagrees with it (and fails to cite any factual evidence in its effort,
to disagree, thereby supporting the ground stated in the Petition).
While the City Council may have the discretion to disagree with the ground
stated in the Petition at the conclusion of the reconsideration hearing if it can
point to substantial evidence in the record to support the objected-to finding, the
Reconsideration Ordinance does not give the City Council or its staff power to
Mayor Darcy Paul and August 21, 2018
Members of the Cupertino City Council Page 3
shortcut that process by deciding that the Petition does not have factual merit
and therefore should not be heard.'
The Reconsideration Ordinance does not give the City the legal right to
decide to not hold a reconsideration hearing. Should the City Council
nonetheless make that decision tonight, the City Council will be "not proceeding
in a manner required by law",.and therefore will expose itself to a request for
reconsideration of its decision not to hold a reconsideration hearing pursuant to
Section 2.08.096.B.5.a. We urge the City Council to not violate its'own ordinance
by denying the Petitioner the reconsideration hearing mandated by that
ordinance.
B. The City Council Must Consider Petitioner's August 10, 2018 Letter
On August 10, 2018 1 electronically submitted a letter supplementing the
May 29th Petition to each member of the City Council, the city clerk and two
members of planning staff.
As a preliminary matter we object to the fact that that letter was not
included as an attachment to the staff report, even though it was submitted well
in advance of the release of the staff report. That omission by city staff has
denied the public its right to review that detail letter critical of the City Council's
decision in advance of the reconsideration hearing. That August 10 letter is part
of the administrative record and must be considered by the City Council as part
of its reconsideration of its May 15 decision, just as this letter must be considered
by the City Council as a part of that reconsideration process.
There may be some erroneous belief within City Hall that the petitioner is
limited solely to the submission of the Petition, and cannot augment that Petition
The staff report also attempts to discredit this ground as stated in the Petition by
stating that "it points to a deficiency in the Planning Commission's findings. It
does not point to a deficiency in the City Council's findings of fact." However, that
section of the Petition doesn't even reference the Planning Commission. Further,
the City Clerk's May-17, notice of the City Council's decision describes the action
this way: DENIED THE PROJECT BY CONCURRING WITH THE PLANNING
COMMISSION RESOLUTION NO. 6856 AND THE FINDINGS THEREIN". That
correctly states what happened: the City Council adopted the Planning
Commission's findings without changing them. Therefore the Petition, which was
expressly stated to be a challenge to the City Council May 15 decision, is clearly
attacking the lack of factual evidence in the findings originally adopted by the
Planning Commission and affirmed without change by the City Council.
Mayor Darcy Paul and August 21, 2018
Members of the Cupertino City Council Page 4
with any further information or elaboration. That notion finds no support
whatsoever in the Reconsideration Ordinance. Nowhere in that ordinance is it
stated or implied that petitioners are limited to expressing themselves one time,
in the Petition. Further, that interpretation of the ordinance would be inconsistent
with the language in the ordinance requiring the reconsideration hearing. There
would be no hearing for due process purposes if the only thing the petitioner is
allowed to do is stand up and read the previously submitted petition. The fact that
a hearing is.contemplated by the ordinance demonstrates beyond dispute the
intent of the ordinance that there be an opportunityfor the petitioner and
members of the public to be heard, including the right to communicate additional
information to the City Council at the reconsideration hearing.
We do not claim that a petitioner can use a supplemental letter to state
new grounds not stated in the Petition (such as, for example, the ground stated in
Section 2.08.096.8.2: "an offer of relevant evidence which was improperly
excluded at any prior City hearing"). However, the August 10 letter was focused
solely on elaboration of the Section 2.08.096.B.5.c. ground that was stated in the
Petition, that the City Council's findings of fact were not supported by the
evidence.
Based on the above objections, our recommendation and request is that
at the City Council meeting this evening the City Council (a) confirm that it will
hold a reconsideration hearing in response to the Petition and (b) either (i)
conduct that hearing or (ii) continue the hearing to a future City Council meeting
with instructions to city staff to provide it with an analysis of the August 10 letter
that either identifies the substantial evidence supporting each statement in the
negative "density" finding (finding No. 3), as approved by the Planning
Commission and-adopted by the City Council. We look forward to addressing the
City Council at the hearing this evening.
Ve truly yours,
BARTON G. HECHTMAN
BGH:cab
cc: Client
Rich Abdalah, Esq.
Lei Yuan
Erick Serrano
City Clerk