Loading...
Exhibit CC 12-18-2018 Item No. 7 City Clerk's Certification of Sufficiency for Referenda Petitions - Written CommunicationsNIELSEN MERKSAMER PARRINELLO GROSS & LEONI LLP POLITICAL & GOVERNMENT LAW ADVOCACY LITIG ATION December 6, 2011 CC 12-18-2018 Item No. 7 VIA EMAIL AND FIRST CLASS MAIL Grace Schmidt, City Clerk City of Cupertino Cupertino City Hall, 10300 Torre Avenue Cupertino, California 95014 Re: Referendum of City of Cupertino Resolution No. 18-085 Dear Ms. Schmidt: We are writing on behalf ofVallco Property Owner, LLC regarding the referendum (the "Referendum") of City of Cupertino Resolution No. 18-085, titled "A Resolution of the City Council of the City of Cupertino Approving a General Plan Amendment to Development Allocations, the General Plan Land Use Map and Development Standards Related to the Vallco Town Center Special Area" (the "General Plan Amendment"). On October 30, 2018, we submitted a Public Records Act request for a blank copy of the Referendum petition. We received your response to our request on November 9, 2018, and have reviewed the petition for compliance with the mandatory requirements of the California Elections Code. In short, the Referendum petition fails to provide the full and accurate text of the resolution being referred, as required by the California Elections Code. This failure to comply with the Elections Code unlawfully deprived signers of the statutorily required information necessary to intelligently exercise their electoral rights. The Referendum petition is therefore facially defective and cannot be certified. 1. The Referendum Petition Failed to Include the Full Text of the Ordinance in Violation of Elections Code section 9238. The Referendum petition plainly fails to comply with section 9238 of the California Elections Code, which mandates that the "full te?(t" of a municipal referendum be included in a petition circulated for voter signatures. The General SAN FRANC ISC O BAY AR EA 2350 KERNER BLVD , SUITE 250 SAN RAFAE L, CA 94901 T 415.389.6800 F 415.388.6874 SACRAMENTO 1415 L STREET, SU ITE 120 0 SACRAMENTO, CA 95814 T 916.446.6752 F 9 16.446.6106 NMGOVLAW.COM Grace Schmidt, City Clerk December 6, 2018 Page 2 Plan Amendment indicates what changes are being made to the General Plan by showing additions in underline and deletions in strikethrough. Page LU-13 of the General Plan Amendment contains a critically important table, titled "Table LU-1: Citywide Development Allocation Between 2014-2040." In Table LU-1, the General Plan Amendment makes significant alterations to the development allocations for Vallco, reducing the square footage allocated to office by up to 1,250,000 square feet, and increasing the number of units allocated to residential development by as much as 2,543 units ( or more than 7 .5 times the number of residential units previously allocated). These changes are shown by striking out the current development allocations, and replacing them with new allocations in underlined text. Significantly, these key changes to the development allocations are not shown or otherwise discussed elsewhere in the GPA Resolution. In short, the amendments contained in Table LU-1 are arguably the most significant change to the City's General Plan. As shown in Exhibit A hereto, however, Referendum proponents failed to faithfully reproduce the General Plan Amendment as adopted by the City Council, and the Referendum petition circulated for voter signatures completely omitted the strikethroughs of the current allocations. As such, signers had absolutely no way to determine how the allowable uses for the Valko property were changing. They were left completely in the dark A long line of California cases have struck down initiative and referendum petitions that failed to comply with the formatting provisions of the Elections Code, especially those such as section 9238, which is intended to provide information to petition signers. (See, e.g., Mervyn's v. Reyes (1998) 69 Cal.App.4th 93, 104-05 [relying on an "unbroken line of initiative and referendum cases covering the period 1925 to 1998" to strike down a petition for failing to include the full text of the measure].) Moreover, where, as here, a referendum petition fails to comply with the statutory requirements, local elections officials have the ministerial duty to reject the petition and must refuse to take any action on it. (Id.; see also Billig v. Voges (1990) 223 Cal.App.3d 962, 968-69 ["a city clerk who refuses to accept a petition for noncompliance with the statute is only performing a ministerial function involving no exercise of discretion"].) For example, in Chase v. Brooks (1986) 187 Cal.App.3d 657, proponents of a referendum petition against a rezoning ordinance included references to a city map number and reclassification of the property affected, but failed to attach a Grace Schmidt, City Clerk December 6, 2018 Page 3 related exhibit which contained the legal description of the property affected. The Court of Appeal held that proponents were required to faithfully reproduce the exhibit in their petition. Accordingly, having failed to comply with the "full text" requirement, the petition was illegal. (Id. at 663; see also Mervyn's, supra, 69 Cal.App.4th at 97-98 ["The purpose of the full text requirement is to provide sufficient information so that registered voters can intelligently evaluate whether to sign the initiative petition and to avoid confusion"]; Creighton v. Reviczky (1985) 171 Cal.App .3d 1225, 1232 [invalidating petition because it "failed to provide the electors with the information [] they needed in order to exercise intelligently their rights under the referendum law"].) Even far less egregious violations of the full text requirement have produced the same result. In Hebard v. Bybee (1998) 65 Cal.App.4th 1331, a referendum petition challenging an ordinance altering a land use designation in a city's general plan merely misstated the title of the ordinance by inadvertently omitting three words. (Id. at 1338-40.) The Court of Appeal invalidated the referendum petition for failing to technically or substantially comply with the full text requirement. In misstating the correct title of the ordinance, the Court held, the petition failed to adequately inform voters which land was involved and thereby deprived them of vital, mandato1y information. (Id. at 1340-41 ["[I]t is the responsibility of the petition proponents to present a petition that conforms to the requirements of the Elections Code"].) Here, the strikethroughs and underlines on the Development Allocation table were the only way for potential signers to know that the General Plan was being amended to significantly reduce the amount of commercial office space planned for the Valko area of the City, and replace it with at least 1,645 units of much needed housing. Yet the strikethroughs of the current allocations are completely absent, leaving signers with no way to determine which allocations are going away and which allocations are replacing them. To the contrary, the information provide provided to the voters was completely nonsensical. These changes were not merely technical edits. Rather, they provide critical information about a central component of the General Plan Amendment. "Better Cupertino"-the group responsible for circulating the Referendum petition-has been vocal in its opposition to the transformation of Vall co into an alleged "office complex." It is completely misleading for this group to oppose proposed development at Valko because it includes "too much office," and "worsens the Grace Schmidt, City Clerk December 6, 2018 Page 4 housing shortage," and then fail to provide potential signers with information showing that the proposed Vallco Town Center development would actually reduce the amount of office currently allowed at Vallco by more than half In fact, Referendum proponents falsely told potential signers that the project would still include 2 million square feet of office. (See Exhibit B.) Furthermore, the housing crisis in the Bay Area is a topic of serious concern for many voters, and it is reasonable to assume that many would be reluctant to sign a Referendum petition if they knew that the resolution being referred provided for an additional 1,645 to 2,534 units of housing for Cupertino residents. By failing to show the changes being made to the residential housing allocations, this critical information was withheld from potential signers. As clearly illustrated by the cases discussed above, failure to provide signers with the complete and accurate text of the resolution being referred fails to satisfy the clear legislative purpose of the full text requirement. This is a plain, direct, and facial violation of the Elections Code. The Referendum petition must be rejected. 2. City Clerks Have a Ministerial Duty to Reject an Initiative Petition that Fails to Comply With the Requirements of the Elections Code. Pursuant to the Elections Code and well-established case law, where, as here, a referendum petition fails to comply with mandatory statutory requirements, local elections officials have the ministerial duty to reject the petition and must refuse to take any action on it. (See, e.g., Billig v. Voges (1990) 223 Cal.App.3d 962,969 [clerks have a ministerial duty to reject a petition that facially violates the statutory requirements of the Elections Code].) California courts have not wavered on this point: [C]lerks throughout the state are mandated by the constitution to implement and enforce the statute's procedural requirements. In the instant case, respondent had the clear and present ministerial duty to refuse to process appellants' petition because it did not comply with the procedural requirements. Grace Schmidt, City Clerk December 6, 2018 Page 5 (Id. [ upholding clerk's rejection of petition for omitting a portion of the measure's full text ( emphasis added)]; see also Myers v. Patterson (1987) 196 Cal.App.3d 130, 136 [rejecting argument that clerk could in any way waive proponents' statutory violation: "Defendant's duties as city registrar include the ministerial function of ascertaining whether the procedural requirement for submitting an initiative measure have been met" (internal quotations omitted)].) When faced with petition errors and omissions, the clerk must not be put in a position where she must make a judgment call, resort to her own discretion, or rely on extrinsic evidence regarding the petition's alleged compliance with the law: If, according to appellants, a petition must be accepted regardless of its compliance with the statute, then the statute is unenforceable .... Therefore, a city clerk who refuses to accept a petition for noncompliance with the statute is only performing a ministerial function involving no exercise of discretion. (Billig, supra, 223 Cal.App.3d at 968-69 [rejecting the flawed argument that a · clerk can simply ignore petition errors (underscoring added)]; see also Ley v. Dominguez (1931) 212 Cal. 587,602 [the "duties and powers of the city clerk in reference to his examination of referendum petitions ... is purely ministerial and not judicial" ( underscoring added)].) 1 Based on the foregoing, it is without question that the Referendum is not entitled to be processed for the ballot or to otherwise be acted upon. (See, e.g., Billig, supra, 223 Cal.App.3d at 969.) Given that the City's duties in this respect are purely ministerial, the City has no authority to excuse proponents' failure to comply with the law. To the contrary, the City is obligated, as a matter of law, to 1 See also Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501-02 ["A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate oflegal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exist. Discretion, on the other hand, is the power conferred on public functionaries to act officially according the dictates of their own judgment" ( underscoring added)].) Thus, there is simply no room for discretion or judgment on the part of the clerk when reviewing the petition. Grace Schmidt, City Clerk December 6, 2018 Page 6 reject this defective Referendum in order to avoid the waste of taxpayer funds and protect the integrity of the electoral process. Thank you for your prompt attention to this letter. Please note that we reserve all rights in connection with this matter. I can be reached at ( 41 SJ 389- 6800. If I am not available to speak with you, please speak to Hilary Gibson, who is working with me on this matter. Sincerely, ~v~ Sean P. Welch SPW/pas cc: Rocio Fierro, City Attorney Mayor Darcy Paul and City Council EXHIBIT A Table LU-1 on page LU-13 in City of Cupertino Resolution No. 18-085: Table LU-1: Citywide D'!velopment Allocation Between 2014-2040 C\l rTtnt curr9nt currant currant built bultdout walt . .abta bui lt buftda ut ~nl~bl• b ull1 huUdcut n.1llabl1 bu;llt bufldolrt ,av-al labto &.tl.MIU Du 1.Mli.l Httrt ot t he Cit)' 1,3 1.73tl 214.! 00 793.i10 2 ,U7,S00 2.~61' 1'.113 N.Oa Anza KV.ltco Duli> MoatoVlsh Vll~• Othcir !16 ,708 !~.,o.e 133,147 13:3.147 312.283 3~.2$3 99,691 144 ,t64 144964, W1''1 V~u ,!i .;,,to!;."''•• ],O.:ILVO\I ~ A !h V""l~r:•,!•~''t h f Hr .. 1 ;~ 1~ M47 7!0.000 710.0C!ll 14-11 ---1-4& 1:9ll0 :oo~· 1.5'l0.0""'•• H& 126 2 .oa1.02 1 2.0~1 .02 1 130.708 444,7!3 41.),14 0 109.9lS 130.708 4,6,7311 119.996 ~ll.0!13 !23,110 315 = 339 -)39 12' lZT -m TI, = 121 l!l ff-> 191 JlJ = l>l lt'.;1,Jthl ~54 21.412 1,1101 146 it!4 871 160 " Sa 127 ]~~27 .l;II% .4 16 Table LU-1 in the Referendum Petition of City of Cupertino Resolution No. 18-085: I curr em J I ~ cune "J I I c<Jm,111 I 1 c 1w'!lnJ bulll buildo-u1 _ ••m lhl,je b-utlt t;,ull~out o·,oiloble ~1111 b\Jlldoul , ..-a<l~t;le bu:i ll ____ (0.<ill.2JI.I:' __ 0.1_7.20 ,----~-___ [Od1.2.QJ -----1.... 0 .tl7a2llJ, ti""rt of I 5 1,730 1 2 14 ,5000 79:J,270 2,447,500 :Z ,41;'1 ,6 13 17,11 3 404 526 1?2 l ,Ja6 1,SOG ::~~ n.r1 !~l!L1i!· 1coo;ooo_i_ ---1---l--15-0 ,000 -I 1so o ~~ -re-JH -I , ~, --11..'114 .69 Town · -1,207,774 1 120,7774 j --2,l)Oil,OOO· 2,000,000 148 3:19 101 3~~ Ccnt.r ~~ ~ • t.2.ll!.2.H _ «51000 l ~~'l~~ illl _ _ e:il lli ____ ~ ,-t.m·- 3'119 ,.~ t-lan"'51.oo~ 291 ,~(),!) 291,40B ~-De ,\ti~~ -, ~S~7~ • 1-~G'.1~ N.V~lko $. De A,,za Bubb l 3J, 147 lll, 147 69,550 t0,550 _J~.aa,,m, L ::1~oa1m1 3,0M,876 3,06~,671; UG 126 GOO 750 150 --· 1~:r -· --123 I ,:fll I m J --"ST5 ·rrs- 11 3 l"r5 --~~: -L ~1 11154 WO BlB B,D 50 -1 . I . 1.Jl...---l-i:i.11,----·:in 111& i4N m 1J..!!! 1.429 ill EXHIBITB be 20~ 8 Valleo plan is rnuc/1 w0rse tlilan what we voted down in 2016 as Measure D. Still hiding buildings up to 9 stories under green roof Adding 13 stories above the green roof! · Went from 800 to 2,400 apartments · Still with almost 2,000,000 sq. ft. of office · Retail reduced again by 1 /3 · We'll say it again: seven 22-story buildings!!! BETTER CUPERTINO · Informed, empowered residents who are engaged in ciuic matters · Transparency and accountability in local and regional gouernment · Sensible growth aligned with the needs and interests of a majority of residents eb: bettercupertino.org • newsletter: bcttercupertino.orgl contact • support: bcttcrcupertino.orgldonate Out-of-town Paid DEVELOPER > cc /l((tJ!( J- # 7 LEAGUE OF WOMEN VOTERS OF CUPERTINO-SUNNYVALE PO Box 2923 • Sunnyvale CA 94087-0923 www .lwvcs .org December 18, 2018 Cupertino City Council: The League is here today taking no position on Vallco. We are here to insist on transparency, good governance, and fairness in reaching the conclusion on what should happen with Vallco. Vallco has been a difficult and contentious issue for the community for years. An issue where prior actions have either been non-conclusive or contested. • Measures C and D both failed, • Community outreach produced the specific plan which was accepted by the prior council and now challenged by members of the current council within a period of months, • Four referenda have been qualified so that the matter could be put to a simple yes or no vote, and • Members of this current council have advocated that Cupertino residents should directly vote on what happens with Vallee. Transparency and good governance demand that a matter as impactful and important to the community as Vallco be put to a vote. We need a simple clear yes or no vote on the proposed specific plan. Let our entire community speak. Do not repeal the previously passed resolutions and ordinances related to the specific plan and the development agreement. Fairness to our entire community requires that we do this quickly with a special election in 2019 and not wait until 2020. While we acknowledge there is a cost to hold a special election getting clear direction and closure from the community is more important and valuable. Last, in deciding whether the special election is worth the cost it must be weighed against all the ongoing lawsuits and their direct and indirect cost and toll to the city which could be put to rest by a referenda vote. Do the right thing and let the community provide you with clear guidance. Allow for a special election on the specific plan in 2019. Sincerely, Roberta Hollimon President From: To: Cc: Subject: Date: Attachments: CC 12-18-2018 Item No. 7 Liana Crabtree Steven Scharf; Liang Chao ; Rod Sinks ; Darcy Paul ; Jon Robert Will ey City Clerk; Cupertin o City Manager"s Office ; City Attorney"s Office in support of the General Plan Amendment referendum petition, 12/18/2018 City Council meeting, agenda item 7 Tuesday, December 18, 2018 3:44 :43 PM Letter to Cupertino City Clerk re 2018 GPA Referendum Petiton .pd f Attachment 1 GP A Tab le LU-1 20181216.pdf Dear Mayor Scharf, Vice Mayor Chao, and Council Members Paul, Sinks, and Willey: Please include this letter and the two attachments that accompany it in the public record for the 12/18/2018 City Council meeting, agenda item 7, "Receive the City Clerk's Certificate of Sufficiency for Referenda Petitions ... " and for any future meetings, if any, where the validity of the General Plan Amendment referendum petition could be called into question. In a letter dated 12/6/2018 and addressed to the City Clerk, legal counsel for Vallco Property Owner, LLC asserts that " ... Referendum proponents failed to faithfully reproduce the General Plan Amendment as adopted by the City Council, and the Referendum petition circulated for voter signatures completely omitted the strikethroughs of the current allocations .... " Assertions that residents misrepresented the content of Resolution 18-085 in the General Plan Amendment referendum petition are false and must be discarded as grounds to reject signatures of the 4,736 registered voters who signed the petition. The content included in the General Plan Amendment referendum petition aligns completely with the signed, dated, stamped, and attested copy of Resolution 18-085 that residents collected from the City Clerk on 10/2/2018, including "omission" of strikethrough text on "Table LU-1: Citywide Development Allocation Between 2014- 2040". As the signed, dated, stamped, and attested copy of Resolution 18-085 is the standard that must be used to determine accuracy and completeness of the content included General Plan Amendment referendum petition--and the content of the two documents do align precisely--then please put to rest any further claims that the General Plan Amendment referendum petition does not faithfully reproduce the content of Resolution 18-085. Related, while investigating this item, residents uncovered a larger concern related to the reliability of the City of Cupertino's records database to store and deliver on demand documents-of-record . For the explanation of the concern related to the records database, please refer to the attached document "Views of Resolution 18-085 as Presented in the City of Cupertino Records Database" (Attachment_ 1_GPA_ Table_LU-1_20181216).* Thank you for your consideration of the information I have shared affirming the accuracy and completeness of the content included in the General Plan Amendment referendum petition . Sincerely, Liana Crabtree Cupertino resident representing myself only *NOTE: To follow along with the information presented in "Attachment 1" on your own connecteda evice, refeno this path: www.cupertino.org >Records> "Digital Archive"> City Council> City Council Resolutions > 2018 CC Resolutions > CC Resolution 10-085 Approving a General Plan Amendment to Development Allocations, the General Plan Land Use Map and Development Standards Related to the Vallee Town Center Special Area Total Control Panel To: sscharf@cupertino .org From : lianacrabtree@yahoo .com Remove this sender from my allow list You received this message because the sender is on your allow list. NIELSEN MERKSAMER NIELSEN MERKSAMER PARRINELLO GROSS & LEONI LLP December 6, 2018 VIA EMAIL AND FIRST CLASS MAIL Grace Schmidt, City Clerk City of Cupertino Cupertino City Hall, 10300 Torre Avenue Cupertino, California 95014 Re: Referendum of City of Cupertino Resolution No. 18-085 Dear Ms. Schmidt: POLITICAL & GOVERNMENT LAW ADVOCACY LI TIGATI ON We are writing on behalf ofVallco Property Owner, LLC regarding the referendum (the "Referendum") of City of Cupertino Resolution No. 18-085, titled "A Resolution of the City Council of the City of Cupertino Approving a General Plan Amendment to Development Allocations, the General Plan Land Use Map and Development Standards Related to the Valko Town Center Special Area" (the "General Plan Amendment"). On October 30, 2018, we submitted a Public Records Act request for a blank copy of the Referendum petition. We received your response to our request on November 9 , 2018, and have reviewed the petition for compliance with the mandatory requirements of the California Elections Code. In short, the Referendum petition fails to provide the full and accurate text of the resolution being referred, as required by the California Elections Code. This failure to comply with the Elections Code unlawfully deprived signers of the · statutorily required information necessary to intelligently exercise their electoral rights. The Referendum petition is therefore facially defective and cannot be certified. 1. The Referendum Petition Failed to Include the Full Text of the Ordinance in Violation of Elections Code section 9238. The Referendum petition plainly fails to comply with section 9238 of the California Elections Code, which mandates that the "full text" of a municipal referendum be included in a petition circulated for voter signatures. The General SAN FRANCIS CO BAY AREA 2350 !(ER N ER B LVD , SU ITE 250 SAN RAFA EL, CA 94901 T 4 15.389 .6800 F 415 .388.6874 SACRAM ENT O 14 15 L STREE T, SUI TE 1200 SACRAMENTO, CA 958 14 T 916.446.6752 F 916.446 .6106 NMGOVLAW.COM Grace Schmidt, City Clerk December 6, 2018 Page 2 Plan Amendment indicates what changes are being made to the General Plan by showing additions in underline and deletions in strikethrough. Page LU-13 of the General Plan Amendment contains a critically important table, titled "Table LU-1: Citywide Development Allocation Between 2014-2040." In Table LU-1, the General Plan Amendment makes significant alterations to the development allocations for Valko, reducing the square footage allocated to office by up to 1,250,000 square feet, and increasing the number of units allocated to residential development by as much as 2,543 units ( or more than 7.5 times the number of residential units previously allocated). These changes are shown by striking out the current development allocations, and replacing them with new allocations in underlined text. Significantly, these key changes to the development allocations are not shown or otherwise discussed elsewhere in the GPA Resolution. In short, the amendments contained in Table LU-1 are arguably the most significant change to the City's General Plan. As shown in Exhibit A hereto, however, Referendum proponents failed to faithfully reproduce the General Plan Amendment as adopted by the City Council, and the Referendum petition circulated for voter signatures completely omitted the strikethroughs of the current allocations. As such, signers had absolutely no way to determine how the allowable uses for the Valko property were changing. They were left completely in the dark A long line of California cases have struck down initiative and referendum petitions that failed to comply with the formatting provisions of the Elections Code, especially those such as section 9238, which is intended to provide information to petition signers. (See, e.g., Mervyn's v. Reyes (1998) 69 Cal.App.4th 93, 104-05 [relying on an "unbroken line of initiative and referendum cases covering the period 1925 to 1998" to strike down a petition for failing to include the full text of the measure].) Moreover, where, as here, a referendum petition fails to comply with the statutory requirements, local elections officials have the ministerial duty to reject the petition and must refuse to take any action on it. (Id.; see also Billig v. Voges (1990) 223 Cal.App.3d 962, 968-69 ["a city clerk who refuses to accept a petition for noncompliance with the statute is only performing a ministerial function involving no exercise of discretion"].) For example, in Chase v. Brooks (1986) 187 Cal.App.3d 657, proponents of a referendum petition against a rezoning ordinance included references to a city map number and reclassification of the property affected, but failed to attach a Grace Schmidt, City Clerk December 6, 2018 Page 3 related exhibit which contained the legal description of the property affected. The Court of Appeal held that proponents were required to faithfully reproduce the exhibit in their petition. Accordingly, having failed to comply with the "full text" requirement, the petition was illegal. (Id. at 663; see also Mervyn's, supra, 69 Cal.App.4th at 97-98 ["The purpose of the full text requirement is to provide sufficient information so that registered voters can intelligently evaluate whether to sign the initiative petition and to avoid confusion"]; Creighton v. Reviczky (1985) 171 Cal.App.3d 12 25, 1232 [invalidating petition because it "failed to provide the electors with the information[] they needed in order to exercise intelligently their rights under the referendum law"].) Even far less egregious violations of the full text requirement have produced the same result. In Hebard v. Bybee (1998) 65 Cal.App.4th 13 31, a referendum petition challenging an ordinance altering a land use designation in a city's general plan merely misstated the title of the ordinance by inadvertently omitting three words. (Id. at 1338-40.) The Court of Appeal invalidated the referendum petition for failing to technically or substantially comply with the full text requirement. In misstating the correct title of the ordinance, the Court held, the petition failed to adequately inform voters which land was involved and thereby deprived them of vital, mandatory information. (Id. at 1340-41 ["[I]t is the responsibility of the petition proponents to present a petition that conforms to the requirements of the Elections Code"].) Here, the strikethroughs and underlines on the Development Allocation table were the only way for potential signers to know that the General Plan was being amended to significantly reduce the amount of commercial office space planned for the Valko area of the City, and replace it with at least 1,645 units of much needed housing. Yet the strikethroughs of the current allocations are completely absent, leaving signers with no way to determine which allocations are going away and which allocations are replacing them. To the contrary, the information provide provided to the voters was completely nonsensical. These changes were not merely technical edits. Rather, they provide critical information about a central component of the General Plan Amendment. "Better Cupertino" -the group responsible for circulating the Referendum petition-has been vocal in its opposition to the transformation of Vall co into an alleged "office complex." It is completely misleading for this group to oppose proposed development at Valko because it includes "too much office," and "worsens the Grace Schmidt, City Clerk December 6, 2018 Page 4 housing shortage," and then fail to provide potential signers with information showing that the proposed Valko Town Center development would actually reduce the amount of office currently allowed at Valko by more than half In fact, Referendum proponents falsely told potential signers that the project would still include 2 million square feet of office. (See Exhibit B.) Furthermore, the housing crisis in the Bay Area is a topic of serious concern for many voters, and it is reasonable to assume that many would be reluctant to sign a Referendum petition if they knew that the resolution being referred provided for an additional 1,645 to 2,534 units of housing for Cupertino residents. By failing to show the changes being made to the residential housing allocations, this critical i!}formation was withheld from potential signers. As clearly illustrated by the cases discussed above, failure to provide signers with the complete and accurate text of the resolution being referred fails to satisfy the clear legislative purpose of the full text requirement. This is a plain, direct, and facial violation of the Elections Code. The Referendum petition must be rejected. 2. City Clerks Have a Ministerial Duty to Reject an Initiative Petition that Fails to Comply With the Requirements of the Elections Code. Pursuant to the Elections Code and well-established case law, where, as here, a referendum petition fails to comply with mandatory statutory requirements, local elections officials have the ministerial duty to reject the petition and must refuse to take any action on it. (See, e.g., Billig v. Voges (1990) 223 Cal.App.3d 962,969 [clerks have a ministerial duty to reject a petition that facially violates the statutory requirements of the Elections Code].) California courts have not wavered on this point: [C]lerks throughout the state are mandated by the constitution to implement and enforce the statute's procedural requirements. In the instant case, respondent had the clear and present ministerial duty to refuse to process appellants' petition because it did not comply with the procedural requirements. Grace Schmidt, City Clerk December 6, 2018 Page 5 (Id. [ upholding clerk's rejection of petition for omitting a portion of the measure's full text ( emphasis added)]; see also Myers v. Patterson (1987) 196 Cal.App.3d 130, 136 [rejecting argument that clerk could in any way waive proponents' statutory violation: "Defendant's duties as city registrar include the ministerial function of ascertaining whether the procedural requirement for submitting an initiative measure have been met" (internal quotations omitted)].) When faced with petition errors and omissions, the clerk must not be put in a position where she must make a judgment call, resort to her own discretion, or rely on extrinsic evidence regarding the petition's alleged compliance with the law: If, according to appellants, a petition must be accepted regardless of its compliance with the statute, then the statute is unenforceable .... Therefore, a city clerk who refuses to accept a petition for noncompliance with the statute is only performing a ministerial function involving no exercise of discretion. (Billig, supra, 223 Cal.App.3d at 968-69 [rejecting the flawed argument that a clerk can simply ignore petition errors (underscoring added)]; see also Ley v. Dominguez (1931) 212 Cal. 587, 602 [the "duties and powers of the city clerk in reference to his examination of referendum petitions ... is purely ministerial and not judicial" (underscoring added)J.)1 Based on the foregoing, it is without question that the Referendum is not entitled to be processed for the ballot or to otherwise be acted upon. (See, e.g., Billig, supra, 223 Cal.App.3d at 969.) Given that the City's duties in this respect are purely ministerial, the City has no authority to excuse proponents' failure to comply with the law. To the contrary, the City is obligated, as a matter of law, to 1 See also Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501-02 ["A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exist. Discretion, on the other hand, is the power conferred on public functionaries to act officially according the dictates of their own judgment" (underscoring added)].) Thus, there is simply no room for discretion or judgment on the part of the clerk when reviewing the petition. Grace Schmidt, City Clerk December 6, 2018 Page 6 reject this defective Referendum in order to avoid the waste of taxpayer funds and protect the integrity of the electoral process. Thank you for your prompt attention to this letter. Please note that we __.r_eser_\T_e all rights in connection with this matter. I can be reached at (415)_3 fi2.:_ 6800. If I am not available to speak with you, please speak to Hilary Gibson, who is working with me on this matter. Sincerely, jLVUJ--.- Sean P. Welch SPW/pas cc: Rocio Fierro, City Attorney Mayor Darcy Paul and City Council EXHIBIT A Ta ble LU-1 on p a ge LU-13 in City o f Cuper t in o Resolution No . 18-085: Table LU-I : Citywide Development Allocation Between 2014-201.0 otflat c,.l} hoqj (rooms! r.st•ntlal t~ul arrnust arrnal Dllnffl cw....a bvl llulld-... 11a1,1o but doul -labl· .... .... _ naltabh ·-rAltablo l'Dl.l-1a1.J. ---u,w__ -. ... ,.-u,1 lkt~,111'-t -----_..., 1.»~ -----.Y-aes U..Qr 1,llt.'1'31 1 1U ICII ,,u,o 2,Al,1,IN I.UU13 l 'J,111 ,~ 12, 1ll "' tt.alk•~ ~ 1.2117.7'14 ,o o.~ot ~ 1SO.OO'O 1~ 339 ill. ~ 2.034 Town ~ ~ ~ . . t::·:!. ~ ---. --C«1ttl' Tltr2 ~ .w;crnto 1.!10 0.0CiQ-141 339 191 :!.ttl .2!11l -d 291,A,III 2'1,411 . "·· i, '' . 12' 12' . '" ' ,ID ~ IU N.O.kaia M.Jal 11,.711 2.D1U2 I 2,llll1,G21 -m . ff 14' 97 .m --,1, 1N.-.11ao t:aU47 la:l,,U7 . a.°''·"' a,-'Mt,'7' . -lD . °' 1114 ao 5.0.,,,.,,. 352,.213 3 11l,2tl . 1311,'IOI 1311.7DI ~ m . ' ' . ... . . . .UUl l 4".711 . . . . . .. . --fl,D'S1 t9,6tlJ 11.'47 443,141 4M.7 13 ,ffl . . . na 171 IO ~ -,u,M, 1M 9", 11',19& ,,,~ . . . 11,GB lt;IU 12' Mr,111< . . 119,9311 "3:U!t'l 123,11 8 . . . . . ~ Wtt.'1/ • OL~ ·• I ~ :mr.:; ~ ~ 18; an ;an L 'U7 w.1111 ~a.11~_:,•~•b, nu .. J..6JU6:l ~ n un 1.tH,17t ~ ;JlJ 21,612 .gu 10.970,00 5 u l.r:!& 1.11& 1.4.29 111 2 ,121 4.41, Table LU-1 in the Refe r endum Petition of City of Cupertino Resolution No. 18-085: 443,140 ~G,S ,t38 13,595 I 8211 5 0 11 !},8 80 I 10.'11:Hi 18.(1311 1S,16t 127 EXHIBITB he 2018 Vallco plan is muc/1 worse tban what we voted down in 2016 as Measure D. Still hiding buildings up to 9 stories under green roof Adding 13 stories above the green roof! • Went from 800 to 2,400 apartments • Still with almost 2,000,000 sq. ft. of office • Retail reduced again by 1/3 • We'll say it again: seven 22-story buildings!!! BETTER CUPERTINO · Informed, empowered residents who are engaged in ciuic matters · Transparency and accountability in local and regional government · Sensible growth aligned with the needs and inte~sts of a majority of residents -- Out-of-town Paid DEVELOPER > Attachment, Views of Resolution 18-085 as Presented in the City of Cupertino Records Database Path to the document record for Resolution 18-085, as of 12/12/2018 : www.cupertino.org >Records> "Digital Archive"> City Council> City Council Resolutions> 2018 CC Resolutions> CC Resolution 10-085 Approving a General Plan Amendment to Development Allocations, the General Plan Land Use Map and Development Standards Related to the Vallco Town Center Special Area -0 ,8"" :J ---I --:::, -- ~ .... -. ................. .-i.-·-·-· ......... -..... ---,,.,··-·-· "'-···-·-...... -~ _.,......,..__~ --~---... ,.,_...._ ..-... ......,._ ~-,._.._. ---.. _.._....__ ----.... ::5:--~ --:;!'..--:!:-- .....--............... ·-.. -. E i .... --.. . -• • • • • J. --~-------.~ ... -. ! a. I ---·---_....__,. __ , ..... ___ -·-·-· .. -· -·· .. --·--· ·-··· _ ... _ .... _.,_ ___ ·-------·-· ----------·-- I _ .. ·--C1t,Cci,.,or., -· ("1(0/IIWJ ~-.... -.............. (,,a,,wr• .,.., - --·«. c.-c,,c,.c- ~~•<c ...........'((~ JIW011M ............ • c.-,-.,,....,,,,.,.,,,,,... .. __ .. c..-.-,...u,'lft.11t"-.,., __ ....., ... v .... ,..,. c......, k«-•N"M -. ..... .....,.,. .... ,.._.... Figure 1, View of Resolution 18-085, Table LU-1. from within the records database browser (Laserfiche). The document was modified on 10/2/2018 at 1 :35 :06 pm . Table LU-1 includes no strikethrough text, which aligns with the presentation of Table LU-1 the printed copy of Resolution 18-085 that was stamped , signed, dated 10/2/2018, and attested by the City Clerk (attested document) and received by residents for use as the source document for the General Plan Amendment referendum petition . The presentation of Table LU-1 in the General Plan Amendment referendum petition aligns with the attested document and Figure 1 . 1 / 4 • ----•Clfttn,,,__ ___ ....,t 1-. ~•·•~_..,_.,.. ..... __ ,.,,, ... ,,,,,.. .. /<&JI r,•1•,,,,,__ .,.,, ........ /;tr _...,_,, ... _,_ .. _ -'""•S.."""Cl""-',..,.,,._,..,_"'-''""_,,..., ____ .... _...,..__, Figure 2, View of Resolution 18-085, Table LU-1 zoomed view of Figure 1, from within the records database browser (Laserfiche). The presentation of Table LU-1 in the General Plan Amendment referendum petition aligns with the attested document and Fi ure 1 no strikethrou h text . 2/4 Figure 3, View of Resolution 18-085, Table LU-1, the PDF file available from the "download" button available from within the records database browser {Laserfiche). The document was modified on 10/2/2018 at 1 :29 :50 pm, which appears to be a down revision document from the revision that is visible from within the records database browser. Table LU-1 includes strikethrough text, which does NOT align with the presentation of Table LU-1 as the printed copy of Resolution 18-085 that was stamped, signed, dated 10/2/2018 , and attested by the City Clerk (attested document) and received by residents for use as the source document for the General Plan Amendment referendum et ition . 3/4 Figure 4, View of Resolution 18-085, Table LU-1, the PDF file available from the "download" button available from within the records database browser (Laserfiche), magnified view of Figure 3. Table LU-1 includes strikethrough text , which does NOT align with the presentation of Table LU -1 as the printed copy of Resolution 18-085 that was stamped, signed, dated 10/2/2018, and attested by the City Clerk (attested document) and received by residents for use as the source document for the General Plan Amendment referendum etition . 4/4 From: To: Cc: Subject: Date: Caryl Go rska City Co un cil Roc io Fi er ro ; Amy Cha n; Grace Sc hmidt. MM C Conflict of Interest charade Tuesday, December 18, 2018 4:03:14 PM Dear Mayor Scharf and City Council Members , CC 12-18-2018 Item No . 7 I just finished reading the December 12 , 2018 letter written by Katherine Can Dusen of Coblentz Patch Duffy & Bass LLP. I suggest you do the same, and everywhere it says "Better Cupe1iino ," substitute "the Democratic Pmiy" or "the Republican Paiiy." Because when I do, it sounds like democracy to me, not conflict of interest. I have read the California statutes governing conflict of interest for elected office holders, and the council members who are being accused simply don't meet the state's checklist of possible violations (see "Conflicts of Interest" publication from the CA Attorney General 's Office, 2010, especially pages 1-5 (a pdf is downloadable at https://oag .ca .go v/conflict-interest ) I also noticed that the City has published a page on its website "Vallco Alleges Conflict of Interest." While I applaud the City for its attempt at transparency, I think in the interest of completeness, the page should also contain infonnation about pe1iinent California statutes that define conflict of interest, as well as a list of the violations our council members are accused of, whatever the source ( and name your sources , please). I also request that City Council refrain making any decisions at all regarding Val/co until this conflict of interes t matter is put to rest, including the action on the Valko referendum scheduled for tonight's City Council meeting agenda. Please enter this letter into the public record pe1iaining to tonight's meeting. Caryl Gorska 10103 Senate Way Total Control Panel To : citycounci l@cupertino .org From : gorska@gorska.com Message Score : 1 My Spam Blocking Level : High Block this sender Block gorska .com High (60): Pass Medium (75): Pass Low (90): Pass This message was delivered because the content filter score did not exceed your filter level. From: To: Cc: Subject: Date: Henry Buffalow City Counci l; Cupertin o City Manaqer"s Office City Cle r k Vallco options and Council actions Tuesday, December 18, 2018 3:05:54 PM CC 12-18-2018 Item No. 7 It is very discouraging reading and listening to all the comments related to both subjects noted above. The feeling is that there is a major feeling of hate between parties. Rather than approach the issue together for what is best for the City I perceive "it's my way or the highway" emanating from all the council members. All of this discontent is delaying any development of the property and at a huge cost to the City. I do believe all the parties want Vallco to rise from the dead and be developed for the good of the City. The problem is what will it look like . Seems like Council should · focus on finding middle ground that all parties can live with. As to the Council election the result may have been different had there been less candidates. As it is it would be nice to know from those that voted for others, what their position would have been related to Vallco . I can't comment from a legal perspective but from a moral view, I think it's wrong for a sitting council member be part of a legal action against the City. They certainly should be restricted from voting and access to all documents related As to the actions of former Council members, they were elected by us and were sworn to do the best they could to represent the people. To hold one council person accountable for the actions of the entire Council is wrong. In most cases at l east it, took a majority to rule so no one person, not even the mayo r. Is responsible. So lets not condemn one or two people. If you don't like the decisions, hold the entire council accountable Hopefully the new council can find middle ground to come up with a viable plan Henry Buffalow 10189 Cass Pl Cupertino Total Control Panel To : cityclerk@cupertino.org From: hb@buffac.com Message Score: 1 My Spam Blocking Level: High Block this sender Block buffac .com High (60): Pass Medium (75): Pass Low (90): Pass This message was delivered because the content filter score did not exceed your filter level. CC 12-18-2018 Item No. 7 NIELSEN MERKSAMER PARRINELLO GROSS & LEONI LLP December 18, 2018 VIA EMAIL AND FIRST CLASS MAIL Mayor Scharf and Councilmembers Sinks, Paul, Willey and Chao City of Cupertino Cupertino City Hall, 10300 Torre Avenue Cupertino, California 95014 LAW POLITICAL & ADVOCACY GOVERNMENT LITI GATI ON Re: Referendum Against City of Cupertino Resolution No. 18-085; Referendum Against City of Cupertino Resolution No. 18-086; Referendum Against City of Cupertino Ordinance No. 18-217 8; and Referendum Against City of Cupertino Ordinance No. 18-2179 Dear Mayor Scharf and Councilmembers: We are writing on behalf ofVallco Property Owner, LLC regarding the above referenced referenda. We understand that the City Attorney's office is in the process of evaluating the legal defects with respect to the referendum petition against the General Plan Amendment (Resolution No. 18-085), as raised in our letter dated December 6, 2018, and will advise the City Clerk and City Council regarding the results of that evaluation prior to the Council's next regularly scheduled meeting in January 2019. This letter raises two additional key points. First, as you may already be aware, the legal defects in the referenda petitions are not limited to the referendum petition against the General Plan Amendment. For example, the referendum petition against City of Cupertino Ordinance No. 18-2178 (Rezoning the Parcels within the Valko Special Area) not only fails to include the full-text of the ordinance in violation of Elections Code section 9238, but-similar to the petition against the General Plan Amendment- it contains wildly inaccurate exhibits that were necessary for signers to be able to intelligently decide whether or not to sign the petition. Namely, the "recreation" of the Zoning Map provided by proponents to voters in the petition fails to match and is, in fact, substantially and meaningfully different than the true and correct copy of the actual Zoning Map. (See letter dated December 6, 2018, regarding City Clerk's legal duty to reject facially defective petitions.) SAN FRANCISCO BAY AREA 2350 KERNER BLVD , SUI TE 250 SAN RAFAE L, CA 94901 T 415 .389 .6800 F 4 15.388 .68 74 SACRAM ENT O 14 15 L STREET, SUITE 1200 SACRAMENTO, CA 958 14 T 916.446.6752 F 9 16.446.6106 NMGOVLAW.COM Mayor and City Council December 18, 2018 Page 2 Second, as noted in the Staff Report in connection with this matter for the City Council meeting scheduled for December 18, 2018, a duly qualified referendum petition must be presented to the city council at the council's next regular meeting, at which time the council must either rescind the referred a ppr o_y_al or submit it to the voters at either the next regular munici:gal election or at a special election called for that purpose. (See Elec. Code § 9241.) Because there are serious legal defects in the referenda petitions requiring the City to reject them, we agree that rescission or placement on the ballot at the City Council meeting on December 18, 2018 would be improper. Moreover, per the Staff Report, we understand that the City will decisively address this matter at or before the City Council's first meeting in 2019, which is scheduled for January 2. Please note, however, that in the event the City Council attempts to delay the timely processing of the referenda for their final, legal resolution, we will take appropriate legal action. Thank you for your prompt attention to this letter. Please note that we reserve all rights in connection with this matter. I can be reached at ( 415) 3 89- 6800. If I am not available to speak with you, please speak to Hilary Gibson, who is working with me on this matter. Sincerely, ~v~ Sean P. Welch SPW/pas cc: Rocio Fierro, City Attorney Perl Perlmutter, Special Counsel Grace Schmidt, City Clerk From: To: Subject: Date: mma li kl@comcast.net City Cle rk; City Counci l; Cupertino City Manage r"s Office Comment regarding Item? of tonite"s agenda . Tuesday, December 18, 2018 2:28:01 PM CC 12-18-2018 Item No. 7 Before the Council and Staff take any further knee jerk actions on Agenda Item 7 of tonite's meeting, I urge you all to read an ongoing Vallco survey currently running on NextDoor. https://nextdoor.com/news_feed/?post=98494433 You may be surprised to learn that 4 7% of the 34 7 respondents to date are still in favor of the Tier-2 plan for the VTC. That is a wider margin over the runner-up option, than what the newly elected Council Members were voted in by. The elections are over. It's time to stop campaigning and start governing ! Respectfu I ly, Mike Malik mmalikl@comcastnet Cell : 408.464.1039 19847 Beekman Place 41 yr resident Total Control Panel To: cityc lerk@cupertino .org Message Score : 1 From : mmalik1@comcast.net My Spam Blocking Level: High Block this sender Block comcast.net High (60): Pass Medium (75): Pass Low (90): Pass This message was delivered because the content filter score did not exceed your filter level. From: To: Subject: Date: Gary Jones Amy Chan ; Grace Schmidt. MMC ; City Attorney"s Office; City Co unc il Letter Monday, December 17 , 2018 4:39:51 PM CC 12-18-2018 Item No. 7 Letter to Cupertino City Council for Meeting of Tuesday, December 18, 2018 Traffic Sucks -Everywhere The frustration of sitting in traffic is an issue for all of us living and working is the Bay Area. Clearly, we have seen the end-of-easy . What is the solution when faced with a pattern of no immediate answers to the problem? What comes to mind for me is that government is not going to provide the solution(s) anytime soon. Why? Because those who are elected are conflicted in many ways for providing a timely and economic solution even when those elected reach agreements. Once a decision is agreed to, the process of implementation is frustrated by an archaic model for resolution from a bureaucracy that moves just too slow to implement the course of action before the next growth wave. Will having a dominated Cupertino city council for "sensible growth" solve Cupertino's traffic problem? No! Why not? Because they (the elected) and some citizens of Cupertino are wasting their energy, time and resources fighting the inevitable, the singularity of the Bay Area's evolution. With progressive cities around us [favorable to growth] the traffic will only continue to worsen and the city of Cupertino will suffer as it ha s for decades being the "Crossroads ." How so? Through the loss of substantial community benefits fueled by now qualified referenda. My guess is now that the community resistance to office space at Vallco is in control --nothing will change other than wasting more taxpayer dollars and valuable time. Will SB35 be the answer? Probably not because there is an inherent bug in testing a new and progressive law-this is pioneering legislation and we all know creativeness can get seriously staled by adversaries. In Cupertino it is suspected those contesting economically sound projects have some undisclosed resource [hidden behind the wall of a 501(c)(3)] that is funding lawsuits, referenda and confrontation right up to the level of appeal to the California Supreme Court . [Note: their 501(c)(3) has recently lost the tax-exempt status] So -traffic sucks and nothing will get resolved. I apologize for the cynicism; but Cupertino seems to be caught in a never-e nding loop of dispute over the future of our city and I don't believe we will see a resolution anytime soon. It's not just traffic in gridlock, our residents are there too over the city's future. As to the scheduled council meeting of December 18, 2018: In my opinion, the Cupertino city council should submit the Tier 2 plan for Vallco Town Center to the voters in 2019 and end the debate once and for all. Enough is enough, let's move-on. In my opinion, the Cupertino city council should not repeal any or all of the resol _utions or ordinances against which Item 7 of the council's agenda is filed as to the referenda petitions (Resolution Nos. 18-085 and 18-086, and Ordinance Nos . 18-2178 and 18-2179). Gary Jones, 43 year resident of Cupertino Total Control Panel To: c ity counc il@ cupertin o.org From: gjoneshome@yahoo.com Message Score : 1 My Spam Blocking Level : High High (60): Pass Medium (75): Pass Low (90): Pass Block this sender Block yahoo.com This message was delivered because the content filter score did not exceed your filter level.