Written CommunicationsCC 10-1-19 #1
Special Closed Session
Written Communications
Cyrah Caburian
From:
Sent:
To:
Cc :
Subject:
Edwa rd Hi rs hfield <clairelouise @ea rthl i nk.ne t>
Thursd ay, September 26, 2019 4:45 PM
City Council
jean @b edord .com
The City Council liabil ity
cc 8/6/19
Closed Session Item #1
4 of the 5 City Council have placed all Cupertino citizens at a total of 100s of Million s of dollars of risk. This could come to tens of
thousand s of risk for each person . I warned you of this at the Council meeting when this stup idity was considered . I hope the
lawsuits by friends of BC are withdrawn before the Novemb e r ruling is made . This may be the only way to redeem yourselves
notwithstanding whatever the Judge may find .
Ed Hirshfield
Sent from my iPhone
Cyrah Caburian
From:
Sent:
To:
Cc:
Subject:
Follow Up Flag:
Flag Status:
Mayor and Council,
kirk vartan <kirk@kvartan .com >
Thursday, September 26, 2019 5:09 PM
City Council
info@revitalizevallco.com
DISAPPOINTED in your actions around Vallco
Follow up
Flagged
It is a shame you are trying to stop an already approved and entitled SB-35 project. Why are you setting the City up for this
lawsuit? Let it go through our only you will be to blame. Your personal preferences are not relevant to the facts here and you are
putting the City at great risk . This is a great project. Let it happen.
Kirk Vartan
Cyrah Caburian
From: City of Cupertino Written Correspondence
Subject: FW: I strongly support the Resolutions and Ordinances adopted by the Council on 8/20/2019
From: James Moore <cinco777@icloud.com>
Sent: Sunday, September 29, 2019 6:23 PM
To : Steven Scharf <SScharf@cupertino.org>; Liang Chao <LiangChao@cupertino.org>; Darcy Paul <DPaul@cupertino.org>; Jon Robert Willey
<JWilley@cupertino.org>; Rod Sinks <RSinks@cupertino.org >; Cupertino City Manager's Office <manager@cupertino.org>; City Attorney's
Office <Ci tyAttorney@cupertino.org>
Cc: City Clerk <CityClerk@cupertino .org>
Subject: I strongly support the Resolutions and Ordinances adopted by the Council on 8/20/2019
Dear Mayor Scharf, Vice-Mayor Chao, Counci l Members Paul, Willey, Sinks, City Manager Feng, and City Attorney Minner,
With this e-mail, I wish to reconfirm my support for the 8/20/2019 Cupertino City Council vote which adopted Resolutions
19-108, 19-109, 19-110, and Ordinances 19-2187 and 19-2188.
Our neighbors, twelve signed the Referendums at our home, twenty oth ers (also signers), and I are pleased that the Provisional office
a llo cation of 2M sqft, passed on 12/4/2014 and which expired May 31, 2018, has now been officia ll y removed from the Vallco
Site. Please reference Resolution 14-211, created 12/11/2014, Table LU-1, Page 71 of 349, inclu ding footnote, and Resolution 14-212,
Page 3 of 230, for details on the origina l appearance of this Provis ional a ll ocation with its 5/31/2018 expiration date.
As a longtime Cupertino resident, I want to share my v iew of the allegations made by Reed Moulds in his 9 /26 "Taking lega l action"
message.
https: / /ma ilchi. mp/ dcd 7 7 cd5 6 b39/2019-0918-rami fications-of-co uncil-downzon ing-99 7 513 ?e=3 7 ca2 6 3 3 9 5
1) I reviewed the Vallco Property Owner (VPO) and the City Feasibility Studies conducted by various experts, and found the City Study
is credible. The 13.1 acre residential zoning, East of Wolfe Road, with density bonus (389*1.35/0.85) allows 618 units, w hi ch, if so ld,
not rented, is economically feasible for a developer t o make a reasonable, not greedy, profit/ROI. The cost assumptions for the City
Study were accurate ly sourced a nd the City Study's determination that "residential for sale housing on this s ite is economically
feasible" is consistent and credible.
2) Reed writes" ... it's hard to believe the city is h e lping Better Cupertino with the (SB35 VTC) liti gation". Yes, Reed Moulds' accusation
is h ard t o believe as it is false. Our City Attorney ha s denied this VPO accusation twice (to Yu an d Bass) during CCC meeting Oral
Communications (8/20 and 9/3). As someone intimately familiar with the FoBC SB35 lawsuit, I h ave observed no help or assistance
from the City attorney.
3) Prior to it bein g posted on the City website, I picked up and reviewed a hard copy of the VPO vs City of Cupertino Writ of
Mandate. My layman's view is that the VPO Writ (Causes of Action) repeats the same claims previously made by Yu and Bass that have
been refuted publicly during recent CCC meetings, by expert written reports, and by statements of the City to the media.
One final tidbit regarding Peter Pau's propensity for going to Court to get his way. In May 2019 (a decade later ), the Pau's lost their
appeal regarding their claim ed 1031 Exchange in th e ir Tax Year 2007 return. Cost to th e Pau's is the unp a id tax amount of$2,278,306
+ Applicable Interest.
https://ota.ca .gov /serp/?q=18011375
https: /Iota.ca.gov /wp-content/upload s/s ites/54/2 019 /06/18011375 Pau Decision PFR 050719.pdf
James (Jim) Moore
Cupertino resident
1
Subscribe Past Issues Translate •
September 26, 2019 View 1n your browser
Dear Neighbor,
As you may know, the Cupertino City Council rece ntly moved to change the
zoning of the Vallco Mall site to limit its development potential. Wi th the City's
new zoning plan, it would no longer be economically feasible to develop the
site, which means the Vallco site would have to sit as an empty lo t for the
foreseeable future.
Importantly, this only will be the case if Better Cupertino succeeds in court in
their effort to stop our SB-35 approved Vallco Town Center project. Given this,
it's hard to believe the city is helping Better Cupertino with the litigat ion .
Regardless, we are confident we will win in court and have been proceeding
with demolition, preparing the site for the much-needed housing we have
planned to build there. If you want periodic updates on demolition, sign up for
them here .
We believe that the Cupertino City Council 's actions to change Vallco's zoning
violate a number of California's laws . To that end, we have filed a lawsuit
against the City for State housing law, environmental review and procedural
violations. The Council's actions have unnecessarily put the Ci ty, and Cupertino
taxpayers, at great financial risk .
While we fully intend to bring Vallc o Town Center as approved under SB 35 to
fruition, given the remaining uncertainty we will fight to protect our ability to
redevelop the Vallco site. It is deeply unfortunate that the City Council's actions
have led to this situation.
If you want to let the City Council know your disappointment in their actions,
email them here.
. DocuSign Enve lop e ID : 3FCEC681-68CD-469E-A 18F-6F77BA 13163E
2019-OTA-119
N onprecedential
OFFICE OF TAX APPEALS
STATE OF CALIFORNIA
In the Matter of the Appeal of:
PETERPAU AND SUSANNAPAU
) OTA Case No. 18011375
)
) Date Issued: May 7, 2019
)
_________________ )
OPINION ON PETITION FOR REHEARING
Representing the Pai1ies:
For Appellants :
For Respondent:
Office of Tax Appeals:
Edwin P. Antolin, Attorney
Carolyn S. Kuduk, Tax Counsel III
Mai C. Tran, Tax Counsel N
J. JOHNSON, Administrative Law Judge: On December 11, 2017, the Board of
Equalization (BOE) held an oral hearing on this matter. After considering the arguments and
evidence presented, the BOE sustained the proposed assessment of respondent Franchise Tax
Board in the amount of $2,278,306 in additional tax, plus applicable interest, for the 2007 tax
year. By letter dated January 10, 2018, appellants filed this timely petition for rehearing
pursuant to California Revenue and Taxation Code (R&TC) section 19048. Upon consideration
of appe llant 's petition for rehearing, we conclude that the grounds set forth therein do not
constitute good cause for a new heating.
Good cause for a new hearing may be shown where one of the following grounds exists,
and the rights of the complaining pai1y are mate1ially affected: 1) iiTegularity in the proceedings
before the BOE by which the pai1y was prevented from having a fafr consideration of its case; 2)
accident or surprise, which ordinary prudence could not have guarded against; 3) newly
discovered evidence, material for the pai1y making the petition for rehearing, which the pai1y
could not, with reasonable diligence, have discovered and produced prior to the decision of the
appeal; 4) insufficiency of the evidence to justify the decision, or the decision is against law; or
DocuSign Envelope ID : 3FCEC681-68CD-469E-A 18F-6F77BA 13163E
5) etrnr in law . (Cal. Code of Regs., tit. 18, § 30604; 1 Appeal of Wilson Development, Inc. (94-
SBE-007) 1994 WL 580654; Appeal of Do, 2018-OTA-002P, Mar. 22, 2018.)
BACKGROUND
On their 2007 tax returns, appellants repo1ied two like-kind exchanges (the Tantau and
Wolfe transactions) pursuant to Internal Revenue Code (IRC) section 1031. IRC section 1031
requires that the same taxpayer that relinquishes prope1iy in a like-kind exchange also receive the
replacement prope11y in the exchange. (Treas. Reg . § 1.1002-1 ( d); Chas e v. Commissioner
(1989) 92 T.C . 874.) The prope1iies were held by the patinerships. The patinerships entered
into sales agreements to sell the prope1iies. Appellant-husband owned an interest in the
patinerships and, through other limited liability companies (LLCs), served as manager of the
patinerships . According to the f01m of the transactions, on the day the propetiies were sold,
partial interests in the prope1iies ( or entities holding the prope1iies) were distributed, with the
result that appellant-husband obtained an interest in a po11ion of the prope1iies which he then
rep01ied as IRC section 1031 exchanges.
Respondent dete1mined that each transaction failed as an exchange. Respondent
determined that the paiinerships, not appellant-husband, were the hue sellers of the relinquished
propetiies. In addition, respondent dete1mined that appellant-husband did not receive the
replacement propetiy in the Tantau transaction because the replacement prope1iy was received
by an LLC which had more than one member and was treated as a patinership, rather than by
appellant-husband through a single-member disregarded entity .
In their briefs and at oral argument, appellants argued that appellant-husband was the
seller of the relinquished prope1iies and appellant-husband, through a disregarded entity,
received the replacement properties. Appellants fmiher argued that the LLC that received the
· replacement prope1iy in the Tantau transaction should be treated as a disregarded entity such that
appellant-husband should be treated as receiving the replacement propetiy directly.
The BOE detetmined that appellants did not show that they were entitled to treat the
Tantau and Wolfe transactions as IRC section 1031 exchanges. The BOE detennined that the
partnerships, not appellant-husband, were the hue sellers of the properties . Fmiher, the BOE
1 Appellants' petition for rehearing was filed with the Office of Tax Appeals while its emergency
regulations were in effect. However, the relevant section of the permanent regulations, cited above and cunently in
effect , are substantially similar to the conesponding section of the emergency regulations, and therefore the
changeover has no substantive effect on the analysis herein .
Appeal of Pau 2
• DocuSrgn Envelope ID: 3FCEC681-68CD-469E-A18F-6F77BA13163E
determined that the entity that received the replacement prope1ty in the Tantau transaction may
not be h·eated as a disregarded entity owned by appellant-husband.
DISCUSSION
In their petition for rehearing, appellants contend that their petition should be granted
because there was an inegularity in the proceedings , there is insufficient evidence to justify the
BOE's decision , and the BOE 's decision is against law . We consider each argument in turn.
1. Whether there was an inegularity in the proceedings
Courts have defined an irregularity in the proceedings as "an overt act of the trial court,
jury, or adverse pmty, violative of the right to a fair and impmtial trial, amounting to
misconduct," (Gray v. Robinson (1939) 33 Cal.App.2d 177 , 182), and as "[a]ny depmture by the
comt from the due and orderly method of disposition of an action by which the substantial rights
of a pmty have been materially affected." (Gay v. Torranc e (1904) 145 Cal. 144, 149 .) Comts
have also required, in addition to identifying such an irregularity, that appellants show they were
ignorant of the facts constituting the irregularity prior to the court 's decision , "since it is settled
that a pmty may not remain quiet, taking his chances upon a favorable verdict, and, after a
verdict against him, raise a point of which he lmew and could have raised during the progress of
the [proceedings]." (Gra y v. Robinson, supra, 33 Cal.App.2d at p. 183.)
Appellants argue that the BOE failed to address whether the tax liability was properly
assessed on appellant-husband personally, instead of being assessed on the individual pmtners of
the pmtnership . Appellants contend that the failure to address this issue is an inegularity in the
proceedings that warrants a rehearing . Appellants ' argument is without basis. Respondent 's
assessment is based on appellant-husband 's distributive share of the pmtnership 's gain from the
sale of the two prope1ties. Fmther, appellants made this argument in the briefs and there is no
evidence that the BOE did not consider it.
As for appellants ' assertions that the BOE failed to grasp the complex legal issues of this
appeal and that this appeal was beyond the nonnal scope of appeals previously decided by the
BOE, we note that appellants have not provided any evidence of this purp01ted failure. Further,
we note that the BOE has addressed these legal issues in prior appeals , including the BOE 's
Appeal of Pau 3
DocuSign Envelope ID: 3FCEC681-68CD-469E-A 18F-6F77BA 13163E
precedential opinion in the Appeal of Brookfield Manor, Inc. et al., 89-SBE-002 (1989 WL
37900) Jan. 11, 1989 (Broolifi eld Manor), as well as an unpublished non-precedential decision.2
As for appellants ' contention that they did not have enough time to present their appeal
due to their change in counsel, appellants fail to provide any explanation of how this could have
prevented appe llants from having a fair consideration of its case. Appellants changed counsel
prior to filing their reply bri ef. Appellants requested and were given multiple deadline
extensions and allowed additional pages beyond the limits set by the regulations within which to
file their reply brief. Appellants also submitted a response to respondent's reply brief. As such ,
appellants were provided ample opp01iunity to present their case after they changed their
representation. Fm1her , appellants did not request or express a need for additional time either
prior to or at the hearing.
Appellants fm1her contend that their appeal is subject to the written decision requirement
in R&TC section 40, and that the lack of a written decision is an irregularity in the proceedings.
Written decisions pursuant to R&TC section 40 were issued by the BOE after the conclusion of
the petition for rehearing process. Therefore, appellants would not have received a w1itten
opinion until after the conclusion of this petition for rehearing process, not before it, and
therefore this argument does not show an iITegularity in the proceedings.3 Accordingly, we fmd
that there was no irregularity in the proceedings that prevented appellants from having a fair
consideration of its case, and a rehearing is not waiTanted on this basis.
2. Whether there is insufficient evidence to justify the decision
When examining whether a petition for rehearing should be granted , such petition "shall
not be granted upon the ground of insufficiency of the evidence to justify the [decision], ...
unless after weighing the evidence the [Office of Tax Appeals] is convinced from the entire
2 The Board issued a nonprecedential s ummary decision in the Appeal of Micha el A . Giurbino and Suzanne
E .-Giurbino (Case No. 861813) on November 29, 2016.
3 Appellants asse11 that a rehearing mu st be granted to enable the Office of Tax Appeals to write an opinion
on this appeal , pursuant to R&TC section 40. However, any statutory requirements placed upon the Office of Tax
Appeals for issuing a written appeal in thi s matter are satisfied by this Opinion on Petition for Rehearing.
Appeal of Pau 4
. DocuSign Envelope ID : 3FCEC681-68CD-469E-A 18F-6F77BA 13163E
record, including reasonable inferences therefrom, that the [panel] clearly should have reached a
different [decision]." (Code Civ. Proc.,§ 657.)4
Here, there was sufficient evidence in the record to justify the BO E 's decision. In
dete1mining whether the substance-over-fmm doctrine should be applied to disregard the transfer
of legal title of the properties from the partnership to the pmtners prior to the sale of the
prope1ties to third pmties, the BOE considered who negotiated the sale and who held the benefits
and burdens of ownership prior to the sale of the prope1ties. (See generally, Commissioner v.
Court Holding Co. (1945) 324 U.S. 331 (Court Holding); Bolker v. Commissioner (1983) 81
T.C. 782 (Bolker); Chase v. Commissioner (1989) 92 T.C. 874 (Chase); Brookfield Manor,
supra.) The evidence in the record includes the sales agreements and subsequent documents
related to the sale. In the Tantau transaction, the sales agreement and subsequent documents
related to the sale were signed by the pa11nership . Prior to the sale, the partnership made
distributions which resulted in appellant-husband being the sole owner of the partnership (a
single-member LLC at that point) and the other partners receiving pmtial prope1ty interests. The
evidence shows that, on the same day that the escrow on the Tantau transaction closed, two grant
deeds were recorded. The first deed transfened interests in the Tantau prope1ty pursuant to the
terms of the distribution agreement, which left the partnership (now wholly owned by appellant-
husband) retaining a partial interest in the Tantau prope1ties. The second deed transfened the
Tantau prope1ties to the third-party buyers . The sale took place under the tenns and the amount
listed in the sales agreement signed by the pmtnership. In addition, the loan documents reflected
that the prope1ty was owned by the pmtnership prior to the sale to the third party. Fmther, the
partnership 's tax return, and not appellants' tax returns , reported rents and expenses from the
prope1iy . Thus, the evidence supports finding that the benefits and burdens of ownership did not
transfer to appellants prior to the sale.
Similarly, in the Wolfe transaction, the sales agreement and subsequent sales-related
documents were signed by the parinership. Prior to the sale, the partnership executed a
distribution agreement withdrawing all partners, including appellant-husband (through his
indirect interest), from the partnership in exchange for pa1tial property interests in the Wolfe
prope1iy. Once escrow closed on the Wolfe transaction, two grant deeds were recorded . The
4 In Appeal of Wilson D evelopment, Inc., supra , the BOE largely adopted the aforementioned grounds for
granting a rehearing, including the ground of an insufficiency of evidence to justify the decision, from Code of Civil
Procedure section 657, which sets forth the grounds for a new trial in a California trial court.
Appeal of Pau 5
DocuSign Envelope ID : 3FCEC681-68CD-469E-A 18F-6F77BA 13163E
first grant deed transfened the interests in the Wolfe property pursuant to the te1ms of the
distribution agreement. The second grant deed transfened the Wolfe prope1ty to the third-pa1ty
buyers. The sale took place under the tenns set by the paitnership with the recording of the
transfer from the partnership to appellants occurring the day after the sale of the Wolfe prope1ty .
Appellants contend that , with respect to the Wolfe transaction, the BOE 's decision
ignores the fact that distribution occuITed after the original sales agreement lapsed. However, the
paitnership and the third-patty buyer linked the subsequent sales documents as amendments to
the original sales agreement, and the last amendment specifically included a ratification of the
original sales agreement, which revived the original sales agreement. Appellants also admitted
that the partners were required to sell their interests in the Wolfe prope1ty consistent with the
te1ms of the sale negotiated by the partnership. In addition, the loan documents reflected that the
property was owned by the partnership. Fwther, the partnership's tax return , and not appellants '
tax returns, rep01ted rents and expenses from the property which shows that the benefits and
burdens of ownership did not transfer to appellants ptior to the sale. The evidence in the record,
viewed in a light most favorable to the BO E's decision, supports a finding that the paitnerships
were the tme sellers of the prope1ties because the partnerships signed the sales agreements, the
deeds distributing interests were only recorded after the sale was imminent, and the partnership
retained the benefits and burdens of owning the prope1ties until the sale to the third party closed.
Appellants ' contention that the LLC acqi.1iring the replacement property in the Tantau
transaction should be treated as a partnership, and not as appellant-husband 's single member
LLC, is not supported by the evidence in the record . Appellants contend the loan documents for
the replacement prope1ty show that the alleged non-appellant partner in the LLC was sin1ply a
creditor who held a security interest in the entity for collateral to secure the loan. The BOE
considered the partnership tax return for the entity, wherein the entity reported three members,
and the entity 's operating agreement, wherein the members agreed to acquire, hold , improve ,
lease , operate and dispose of the replacement prope11y for investment and for the production of
income from the replacement prope1ty. The operating agreement also indicated that the
members, other than appellant-husband , made initial contributions of $5 million to the entity and
would make additional contributions to fund capital improvements and other specified items
related to the replacement prope1ty. Further, the entity maintained its own books and records.
Viewing the evidence in a light most favorable to the BOE's decision , the evidence supports
Appeal of Pau 6
• DocuSi-gn Envelope ID : 3FCEC681-68CD-469E-A 18F-6F77BA 13163E
finding that the LLC that acquired the replacement prope11y in the Tantau transaction had more
than one member and should be treated as a partnership .
Appellants essentially argue that the BOE weighed the evidence inco1Tectly against them.
However, the relevant inqui1y for purposes of a petition for rehearing is not one which involves a
weighing of the evidence, but rather is a question of whether there is evidence which, if given its
fullest effect, is legally sufficient to suppo11 the decision. (See Mosekian v. Ginsberg (1932) 122
Cal.App. 774, 777 ; Sanch ez-Corea v. Bank of America (1985) 38 Cal.3d 892, 906 (Sanchez -
Corea).) In light of the above discussion , we find that the evidence suppo11s the BO E 's decision
finding that the Tantau and Wolfe transactions did not qualify as IRC section 1031 exchanges.
Therefore, a rehearing is not waITanted on this basis.
3. Whether the decision is contrary to law
The question of whether the decision is contrary to law (or against law) is not one which
involves a weighing of the evidence, but instead requires a finding that the decision is
"unsupported by any substantial evidence ." (Sanch ez-Corea , supra, 38 Cal. 3d at p . 906 .) This
requires a review of the decision to "indulge in all legitimate and reasonable inferences" to
uphold the decision. (Id. at p . 907.) The relevant question is not over the quality or nature of the
reasoning behind the decision, but whether the decision can or cannot be valid according to the
law. (Appeal ofNASSCO Holdings, Inc . (2010-SBE-001) 2010 WL 5626976 .)
Here , substantial evidence supports the finding that the BOE's decision was not contrary
to law . Appellants make the same arguments on petition for rehearing that they made during
briefing and oral argument on the original appeal. The BOE 's decision followed the legal
reasoning in Court Holding, supra, Balker, supra , Cha se, supra, and Broolifield Manor, supra,
by determining that the sellers of the Tantau and Wolfe prope11ies were the entities, not
appellants. Fmther, appellants ' contention that the sales agreement signed by the pai1nership in
the Wolfe transaction was tenninated prior to the ultimate sale of the prope1iy is contradicted by
the evidence in the record and appellants ' admission that they were bound by the contract to sell
the prope1iy as negotiated by the patinership .
In addition , there is substantial evidence to suppo1i the finding that the LLC that acquired
the replacement prope1iy in the Tantau transaction should not be treated as a disregarded entity.
The BOE 's decision is consistent with Treasury Regulation section 301.7701-2(a), which
provides that, if an LLC has two or more owners , the LLC is treated as either a pat1nership or as
Appeal of Pau 7
Do cu Sign Envelope ID : 3FCEC681-68CD-469E-A 18F-6F77BA 13 163E
an association which is taxed as a corporation . The BOE followed the legal precedent set by
Commissioner v. Culb ertson (1949) 337 U.S . 733 in detennining that the entity should be treated
as a partnership based on all the facts and circumstances. As noted above, the record reflects that
the LLC filed paiinership tax returns in which the LLC repo11ed three members and the members
agreed in the LLC 's operating agreement to acquire and invest in the replacement property for
the production of income. As such, there is substantial evidence to suppo11 the finding that the
LLC should be treated as a pai1nership , rather than a disregarded entity.
Based on the discussion above, and under the standard of review provided for in Sanch ez-
Corea, supra, Appeal of Wilson D eve lopm ent, Inc., supra, and Appeal of Do , supra, we find that
the BOE 's decision is not contrary to law and a rehearing is therefore not warranted on this basis.
CONCLUSION
Appellants have not shown good cause for a new hearing under the Appeal of Wilson
Developm ent, Inc., supra , and California Code of Regulations, title 18, section 30604 , for
obtaining a rehearing. Therefore, appellants ' request for a rehearing is denied .
We concur:
li9822 FBB I 8A4 IB J ef ·ey I. Margolis
Administrative Law Judge
fi¥3908lt'f CB \aAY . . Je ·ey . AngeJa
Administrative Law Judge
Appeal of Pau 8
John O . Johnson
Adminish·ative Law Judge
Cyrah Caburian
From:
Sent:
To:
Subject:
Follow Up Flag:
Flag Status:
Warren Mine <w arrenmine@gmail.com >
Friday, September 27, 2019 9:14 AM
City Council
Vallco deveopment
Follow up
Completed
I have been a resident of Cupertino since 1948 and an very disappointed in the Cupertino city hall actions with regard to Vallco
redevelopment efforts . You are only causing problems in furthering the improvement of the Vallco property which is very close
to us. I don't want to see litigation to waste Cupertino tax payers dollars. Maybe you need to consider resigning in the face of
impeding development of Cupertino in an orderly manner in accordance with the laws of the state of California. If you have
some ligitiment agruments the you should have a city wide meeting to explain your actions. I would attend .
Warren
Sent from my iPhone
Cyrah Caburian
From:
Sent:
To:
Subject:
gail.c@apple.com on behalf of Gail Cleveland <gail.c@apple .com >
Friday, September 27, 2019 12:48 PM
City Council
Vallco
I am tired of getting Reed Moulds emails and threats . Also saw he posted on FaceBook . He needs to cut the threats . I
appreciate our City Council members looking after the city and the neighbors affected by this construction. It has caused us to
be skeptical of Sand Hill and their motive.
Please City Council members keep up the good work and put them in their place .
Regards,
Gail
One of the very close neighbors of the project.
Cyrah Caburian
From:
Sent:
To:
Subject:
Sherry Burns <sherburns26@gmail.com >
Sunday, September 29 , 2019 12 :07 PM
City Council
Vallco
The City Council appears to be moving Cupertino backwards instead of embracing the needs of the community . The way the
Council keeps changing the rules is doing nothing for the health of this city. All the legal wrangling is heading us straight towards
bankruptcy (from a city that had deep pockets and could do so much for its residents).
The City should not be helping a small, yet very vocal group (Better Cupertino) with their lawsuits as this smacks of conflict of
interest. The interest of the City should be to all the residents and the needs of the city.
Sherry
CC 10-1-19
Oral Communications
Written Comments
Cc 10/1/11
Mayor's Cup Points System D �l C<J M ¥V\,
The Mayor's Cup recognizes Silicon Valley cities and towns in four categories, based on population:
•Extra Small Cities: (25,000 or less in population)
o Athe11011, Brisbane, Capitola, Colma, Half Moon Bay, Hillsborough, Los Altos Hills,
Millbrae, Monte Sereno, Portola Valley, Woodside
•Small City: (25,000-35,000 in population)
o Belmont, Burlingame, East Palo Alto, Foster City, Los Altos, Los Gatos, Menlo Park,
San Carlos, Saratoga_
•Medium City: (35,000 to 100,000 in population)
o Campbell, Cupe11ino, Gilroy, Milpitas, Morgan Hill, Mountain View, Newark, Pacifica,
Palo Alto, Redwood City, South San Francisco, San Bruno, San Mateo, Santa Cruz,
Watsonville
•Large City: (above 100,000 in population)o Daly City, Fremont, San_Jose, Santa Clara, Santa Clara County, San Mateo County, Santa
Cruz County, Smmyvale
Point Class Points Available
Participation/Registration by Mayor, Elected Council Members or City Managers* 10 points max
City Council Champion 5 points available
Newsletter or E-Newsletter Promotion (Share with us for points) 2 points available
Social Media Promotion (Share with us.for points)[Facebook, Twitter, Instagram, 2 points available
LinkedlnJ
Connection to Parks & Recreation Department for Promotional Opportunities 2 points available
*Points for Mayor, Elected Council Members or City Managers are based on the percentage of your board
who participate. (Example-Three out of five council members participate, 60% board participation.
Receive 60% of the available IO points; therefore 6 points are awarded to the city.)
The Mayor's Cup is awarded to the municipality with the most points possible in each category.
Registration must be completed by November 23rd, 12:00 pm PST to be counted towards the "Mayor's
Cup" standings. A "leader board" is periodically updated to reflect standings and encourage participation.
2018 Winners
Extra-Small City -Los Altos Hills
Small City -Saratoga
Mid-Sized City -Campbell
Large City -San Jose
How do you participate? When you are registering, select "Yes" when asked if you are an elected official
and choose your city. Encourage other elected officials to challenge cross-county rivals in a spirited
competition based on pm1icipation, not speed!
The winning City or Town (or the County) in each size category will receive the following:
►The "Mayor's Cup" for prominent display in your lobby!
►Recognition at the race and in post-race press.
►Bragging rights for the entire year!
CITY OF
CUPERTINO
July 3, 2019
Robert Salisbury
County of Santa Clara
70 West Hedding Sh·eet
CITY MANAG~R'S OFFICE
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3223 • FA X: (408) 777-3366
CUPERTINO.ORG
East Wing, Seventh Floor
San Jose, CA 95110
Robert.Salisbury@pln .sccgov.org
Dear Mr. Salisbury,
Lehigh Southwest Cement Company ("Lehigh") recently submitted an application
for a Major Reclamation Plan Amendment for the Pennanente QuatTy ("Application"),
which proposes significant departures from past approvals and raises grave concerns for
the City.
In its Application, Lehigh proposes to transfer aggregate from its own property,
located just west of Cupe1iino, to the neighboring Stevens Creek QuatTy ("SCQ"). Lehigh
proposes to do so either by resuming use of an internal "Utility Road" that it improved
illegally last year, without permits from the City or County, or via an alternative "Rock
Plant Haul Road" that would climb an ~ven steeper route over the ridge between the two
prope1ties. Such activity is not encompassed in Lehigh's vested rights, which the County
defined as "continued surface mining operations ." Instead, shipping aggregate offsite is a
distinct activity for which Lehigh has no legal precedent, much less a vested 1ight.
Accordingly, the County should require the Lehigh apply for a use pennit and conduct a
full enviromnental review for this expansion of both its and SCQ 's operations.
As the City explained in its January 31 , 2019 letter to the County objecting to
SCQ's and Lehigh's unpennitted and illegal hauling operations, the proposed Utility
Road raises significant concerns, including those related to emissions, seismic stability,
and 1idgeline protections and views. The proposed route also crosses into the City (and
the alternative Rock Plant Haul Road only exacerbates each of the City's concerns by
climbing higher over the 1idge). In considering whether Lehigh should be pennitted to
haul its aggregate to SCQ, the County should also assess the extent to which doing so
will extend the useful life of the both Lehigh's operations and SCQ beyond what was
contemplated when Lehigh obtained its vested rights detennination .
The Application also includes a drastic departure from th e Quan-y 's existing
reclamation plan. Rather than backfilling the N01ih QuatTy with material available onsite
in the West Materials Storage Area, as set forth in the 20 12 Reclamation Plan, th e
App lic ation proposes to imp ort up to / million cubic yards of soi l each year to b ackfi ll
the North Qu arr y . D es pite it s study 's aclmow led gm ent that transpo1iing 1 million cubic
yards of so i I will require 200 ,000 trips to and from th e Quany a nuually, Lehigh fails to
ackno w ledge the significa nt local imp acts of this tru ck traffic. Roughly 548 truck t1ips to
a nd from th e Quany per da y (if o perations ran eve ry day of the yea r) will have an
ex traordinar y and who ll y un accep table impact on the C ity's r es id ent s, streets, a nd
infras tructure. These wi ll in c lud e, at a minimum , exacerbatin g traffic concerns re lated to
conges ti on, queuing, sp illing of debri s, pedestrian and bike safety, and bl ock in g of
intersections; degradin g a ir and water quality ; a nd ca usi ng s ign ifi cant deterioration of
C it y streets a nd infrastructure .
Both t he enormous increase in truck traffi c rela ted to th e propos e d r eclam ation of
the N01i h Quany and th e traffic th at w ill result from SCQ's expande d sales of Lehigh 's
aggregate hi g hli ght the need for a tru ck plan setting m eaningful limits on dai ly ttips, tim e
of operations , qu euin g, a nd enfor cement problems . The County should ens ure that any
consideration of Lehigh 's App li cation includes mea ningful conditions and r eco ur se for
th e City, which h as born e th e brunt of both qu arr ies' recent ill egal hauling operation, as
recognized in th e County's February 15, 20 19 Notice of Violation to SCQ a nd its
February 20, 20 19 Dra ft Notice regarding Lehi gh's Haul Road Reclamation Plan
Amendment.
Lehigh's Application i s entirely silent about th e pre-application for a Use Pennit
and Major Reclamation Plan Am endm ent submitted by SCQ , w hi ch propo ses to impmi
up to 1 million tons of rn a te1ial from Lehigh each year for process in g and sale, along w ith
an additional six to seven million tons of fill with whi ch to recl a im that quarry. The
c umulative effects of these projects are obvious and must b e addressed, including by
carefull y evalu ating a ny a lt ernative th at u ses onsite materi al for reclamat ion .
Lehi g h 's Application also includes a worrying proposal to alter the 1972
Riclgeline Easement betw een Lehigh and the County to significantly change the
Permanente Ridge. Though Lehigh a tt empts to m ask its proposa l as necessary to prevent
natural erosio n of the rid gelin e, this proposal appears designed to increase production
from th e North Highwall Reserve of the Quany. The 1972 Easement prohibits Lehigh
from r educing the ridgeline below sp ec ified elevations. It has already violated that
m a ndate . Nonetheless , Lehigh asks th e County to not only endorse its p ast vio lations, but
also to approve fmiher departures from the Easement. Lehigh's proposal wo uld red u ce
the height of th e r id gelin e by an average of 100 feet, which Lehigh r efers to as "a sli ghtly
lower crest e levation ." Lehigh r eveal s its intent to further d evelop thi s ar ea wh en it notes
th at analysis co nducted in 201 8 "ha s r evealed options for extending Nmih Q uarry
production," and that the 1972 Easement inhibits "production of hi gh wa ll reserves." As
Lehigh acknowledges, "[t]h e 19 72 Easement h as been effective in maintaining th e
n01iheast s lope s uch that v iews of mining operations are obscured." The Cou nt y s ho uld
no t accept further dev ia ti o n from th e binding tenns of the Easement mere ly to enable
Lehigh to in c rease it s production from thi s area. In s tead, it should deny Lehi gh 's r eq ues t
to modify the 1972 Easement or to reduce th e h eight of the 1idge lin e in this a rea.
Additionally, th e C ity urges the Co unty to deny Lehigh's App li cation entirely
until Lehigh comes into comp li ance with its various outstanding violations. These
violations in clude the County's August 17 , 2018 Notice of Vio lation for Lehigh's
illegally grading th e utility h aul road outside the boundaries of its 2 012 re clamation plan
amendment. As noted above, Lehigh is prohibited from shipping its aggregate offsite via
thi s or other roads without first obtaining a use pennit from the Co unty and undergoing
env ironme ntal review. Additionally, the C ity issued an Administrative Ci tation and
Notice of Violation on May 28, 2 019 for Lehigh's illegal expansion of the utility road
without City permission. Finally, as recently as June 13 , 2019, the County issued a Notice
of Violation rel ated to Lehigh's discharging sediments into Permanente Creek. Lehigh
should not rec eive frniher approvals until it has corrected a ll of its outstanding vio lations.
As revealed by the specific concerns highlighted here, Lehigh's Application is
· also inconsistent with the County's General Plan. General Plan Policy C -RC 47 requires
that potentially adverse envirom11ental impacts from the extraction and transpoti of
mineral reso urces be minimi z ed to the greatest extent possible, including disruption and
damage to topography and increased traffic volumes and damage to road surfaces. For the
reasons discussed here, rather than minimi zing these impacts , Lehigh 's Application
compounds them.
Thus, as btiefly summa1ized above based on a preliminary review, the City finds
Lehigh's Reclamation Plan Amendment Application inappropriate and likely highly
detrimental to the City's residents and resources. The City thus requests that the County
scrutinize Lehigh's proposal to expand its operations via increased hauling between
Lehigh and SCQ, to materially alter the tenns of long-standing Ridgeline Easement, and
to increase truck traffic by more than 550 t1ips per aay, with a focus on identifying
alternatives that will avoid the resulting impacts on th e City and the surrounding
community.
Sincerely,
~~ Deborah L. Feng
City Manager
Midpeninsula Region a l
Open Space
July 12, 2019
Mr. Rob Salisbury
Midpeninsula Regiona l Open Space Di strict
Santa Clara County Planning Dpt.
70 West Hedding Street
East Wing, 7th Floor
San Jose, CA 95110
GENERAL MANAGER
Ana M . Rui z
BOARD OF DIRECTOR S
Pet e Si em ens
Yor ik o Kishimoto
Jed Cyr
Curt Riffl e
Ka ren Ho lm an
Lar ry Hassett
Zoe l<erst ee n -Tu cker
RE: Lehigh Southwest Cement Company Proposed Permanente Quarry Reclamat ion Plan Amendment
Application
Dear Mr. Salisbury,
The Midpeninsu la Regional Open Space District (District) submits the following preliminary comments
on the May 2019 application from Lehigh Southwest Cement Company (Lehigh) for a proposed
Reclamation Plan Amendment {2019 Amendment). Our comments raise concerns regarding the
proposed expansion of the quarry operations into the protected Scenic Easement area. These concerns
are focused on four main issues: inadequate geotechnical solutions to stab il ize the existing quarry walls;
continued water quality impacts of both groundwater and Permanente Creek; visual impacts resulting
from the increased height of the West Materials Storage Area (WMSA) and l owering of the ridgeline;
and the potential for increased air quality impacts . Additiona lly, the District is concerned that the
proposed amendment would also result in continued implementation de lays to fulfill current stream
restoration obligations along Permanente Creek .
Protection of the Permanent Ridge Scen ic Easement
The Permanente Ridge Scenic Easement owned by Santa Clara County (County) is extremely important
to the District, our visitors, neighbors, and al l County residents who va lue the scenic views of the
prominent hillside. This easement protects the views looking to the north towards Lehigh Quarry . Even
though the massive quarry is located just over the ridgeline from Rancho San Antonio Open Space
Preserve , the scenic easement ensures that the viewshed remains one of natural splendor to be enjoyed
by preserve visitors, neighbors and everyone in the Santa Clara Valley reg ion. The scenic easement
explicitly prohibits the mining activities proposed in the 2019 Amendment. To conform with existing
legal requirements and uphold the intent of the scenic easement, the District urges that the County
require Lehigh to amend its 2019 Amendment application to ensure comp liance with County rules and
regulations, and with the land use restrictions that apply to this important scenic easement . At a
minimum, Lehigh should be required to provide an alternative i n their application that complies with the
scenic easement before the application is deemed complete .
Geotechnical Stability
The District raises significant concerns that recent mining activities remain out of comp li ance with the
County -a pproved 2012 Reclamation Plan . These activities have created over-steepened quarry wall
I 33oO1stelC1rcle LosAltos,CA94022 f ,•6506911Joo I ,6506910485 I www o pe n s p aceo r g I
slopes with insufficient benches, resulting in a less stable hillside that is prone to erosion and landslides.
These over-steepened slopes are not properly mitigated in the 2019 Amendment, and should be
reviewed by the County Geologist, State Office of Mine Reclamation, and State · Mining and Geology
Board immediately.
The District also ha's concerns regarding Lehigh's proposal to mine the ridge that is protected by the
Permanente Ridge Scenic Easement . The 2019 Amendment cites the need to address potential erosion
and stability issues created by mining the northern quarry slope. However, the proposal to mine the
ridge that lies within the Scenic Easement in reality does little to lessen the slope steepness. To
sufficiently address the stability issues, Lehigh should be required to follow the approved 2012
Amendment that calls for buttressing the mined slope with material from the WMSA . Expanding the
mining area into the area protected by the Scenic Easement is not an acceptable approach to rectifying a
condition created by past mining practices. It appears that the main driving benefit in mining this
protected ridge protected is to extract additiona I product for additional profit by the quarry.
Water Quality
In the application, Lehigh cites water quality concerns associated with backfilling the quarry pit and
buttressing the north quarry slope with the material stockpiled in the WMSA. However, the Regional
Water Quality Control Board (RWQCB) developed and issued their recent 2018 Waste Discharge
Requirements (WDR's) based upon the existing 2012 Reclamation Plan, which inch,ided relocating the
WMSA into the quarry pit and buttressing the steeply mined quarry walls, indicating that water quality
objectives are achievable using this approach. Lehigh does not provide material evidence to support
their position, except for their desire to stop treating the groundwater they have intercepted through
mining activities. Again, one has to assume that increasing the profit of the quarry through reductions in
operating costs are the main driver for this proposal.
Important to a successful reclamation will be the non-limestone materials used to backfill the lowermost
elevations of the quarry pit (including elevations below the water table that have been mined since the
2012 Amendment approval). Lehigh's proposed 2019 Amendment estimates that 80% of the total
volume in the WMSA contains non-limestone rock . Lehigh has also stockpiled substantial volumes of
non-limestone rock (primarily greenstone) elsewhere in the quarry. Given the volume of non-limestone
material needed to backfill the large mining pit, it is critical to retain all existing non -limestone material.
onsite to use as backfill. This material should not be sold or hauled off site. Using existing onsite
material avoids the added environmental impacts related to greenhouse gas emissions, traffic, and
diesel exhaust that would otherwise occur if the County accepts Lehigh's proposal to sell and off-haul
existing material for profit and import and in-haul outside fill for an additional profit. The trucking of
this material is substantial-with an estimate given of up to one-million cubic yards of construction soil
imported annually to the site from throughout the South San Francisco Bay Area . The application fails to
describe the environmental impacts to Cupertino, surrounding communities, and Rancho San Antonio
Open Space Preserve related to the off-haul and in -haul of this material. ·Moreover, the proposed use of
imported soil (rather than onsite material) to fill in the min i ng pit is anticipated .to extend the current 5-
year reclamation timeline by an additional 25-30 years . The resulting extensive delay is unacceptable .
Visual Impacts
Lehigh's proposed 2019 Amendment would raise the WMSA an additional 160 feet in elevation. This
proposal runs fully contrary to the prior approved 2012 Amendment, which requires removal of the
WMSA. As part of the 2012 Amendment, ,he County recognized the visual impact of the expanded
WMSA and allowed Lehigh to temporarily retain the WMSA during mining activities with the
requirement that the WMSA be removed as part of reclamation activities. Adding 160 feet of additional
2
e levation would clearly result in greater visual impacts than the current 2012 Amendment and negate
the original agreements made between the County and Lehigh .
Air Quality Impacts
The proposed mining of the scenic easement and additional storage at the WMSA are ridgetop
construction activities subject to wind erosion. The District conducted an exte nsiv e air monitoring study
in 2013-2014 at Rancho San Antonio Open Space Preserve (Wineg ar Air Sciences, October 2104). The
study noted a correlation in the increase of particulate matter with proxim ity to the Lehigh quarry. Th e
air was clearly degraded by particulate matter at a sample point locat ed closest to Lehigh when
compared with up-wind monitoring locations. Concentrations of particulate matter 10 micrometers or
less in diameter (PMlO) exceeded the California Standard at the monitoring site closest to Lehigh . The
proposed mining activities pose a significant new air quality concern to the District and shou ld be
suffic i ently addressed in the application
Delays in Comp leting the Permanente Creek Restoration Area
The ongoing delay in completing the Permanente Creek Restoration Area (PCRA) is of continued concern
to the District. Th e 2019 Amendment states that "The proposed reclamation plan amendment would
not change the reclamation approach or requirements for the PCRA". What appears to change i s the
time lin e. Unde r the ex isting 2012 Amendment, PCRA restoration is to be completed by 2030. Per the
2019 Amendment, the timeframe for restoration is 10-20 years from approva l, an extension of up to an
additional 10 years -out to potentially 2040. Lehigh 's ex isti ng slow pace for submitti ng necessary items
requested by the County to comply with the 2012 Amendment raises serio us concerns that the same
slow approach and resu lting delays would occur if the proposed 2019 Amendment is approved . Our
concerns for the creek were recently justified and heightened by recent lands lid es from the Yeager Yard
area in to Permanente Creek . The PCRA restoration should be comp leted as soon as possible, and should
not be delayed for another decade. The 2019 application shou ld also be deemed incompl ete because it
lacks spec ificity in describing the timeframe for restoration of the PCRA.
The County holds the authority to uphold its commitment to the surrounding communities by protecting
the Permanente Ridge Sc enic Ea sement and requiring the timely implementation of the approved 2012
Amendment. It is clear that the existing 2012 Reclamation Plan is far super io r to the Proposed 2019
Amendment by remaining much more protective of human hea lth, the su rrounding environment, and
scenic vistas . The County is asked to deem Lehigh 's 2019 Reclamation Plan Amendment application as
incomp lete until all the issu es discussed above are adequately addressed .
Sincerely,
~l!f.7 '
AnaM.Ruiz Y
General Manager
Midpeninsula Regional Open Space Di strict
cc : Midpeninsula Regional Ope n Space District (District) Board of Directors
Erika Guerra, Environmental Director, Lehigh Quarry
Brian Malone, Assistant General Manager, District
Kirk Lenin gton, Natural Resources Manager, District
3
1 North San Antonio Road
Los Altos, California 94022-3087
SENT VIA EMAIL: supervisor.simiti an@bos.sccgov.org
July 31, 2019
Supervisor Joe Simitian, District 5
Santa Clara County Board of Supervisors
County of Santa Clara
70 West Hedding Street, 10 th Floor
San Jose, CA 95110
Re: Lehigh Southwest Cement Company Reclamation Plan Amendment Application
Dear Supervisor Simitian,
Our initial review of the Lehigh Southwest Cement Company ("Lehigh") Reclamation Plan
Amendment Application ("Application") for its Permanente Quarry raises grave concerns for the
citizens of Los Altos. We appreciate the efforts made by County staff in their review of the
Application as described in Senior P lanner Robert Salisbury's letter dated July 22, 2019 and concur
with the issues raised by both the City of Cupertino letter dated July 3, 2019 and the Mid peninsula
Regional Open Space District letter dated July 12, 2019 pertaining to visual impacts, geotechnical
stability, traffic, air and water quality, and delays of the Permanente Creek Restoration.
Lehigh's intention to mine over a half-mile (3000 ft.) of the deeded Ridgeline Protection Easement,
which preserves our "scenic backdrop to the residents in the northern portion of the County of
Santa Clara," is unacceptable. The Cow1ty General Plan highlights the importance of our viewshed,
which applies to our ridgeline and Lehigh's proposed retention and expansion of the 173-acre West
Materials Storage Area (WMSA) mountain of mining-waste that already mars the lower ridge, "Over
time, the focus of General Plan policies has made it a priority to conserve as much as possible those
hillsides immediately visible from the valley floor." The significant traffic increase of 666 trucks per
clay for 30 years has been underestimated. A cumulative traffic analysis must consider the Stevens
Creek Quarry expansion plan, which allows 1300 trucks per day along with Lehigh's stated objective
to open a new aggregate business . In addition to pollution from tiuck traffic, there is concern that
fugitive dust from blasting with 1101 tons of explosives annually wouJd negatively affect om
residents . As Lehigh cement plant air emissions contribute to mercury water pollution in the
adjacent Stevens Creek Reservoir and Calero Reservoir, 20 miles away, air and water pollution are
also regional concerns.
Lehigh Southwest Cement Company Reclamation Plan Amendment Application
July 31, 2019
Page 2
We encourage the County to retain the 2012 Reclamation Plan. Tl1is superior plan protects the
ridgeline, removes current and future \'v'MSA visual impacts, minimizes traffic, and restores
Permanente Creek in a timely manner. \Xi e also urge the County to reject Lehigh's 2019 Application
until Lehigh comes into full compliance with its outstanding violations. Thank you for your
continued attention to this major industrial site, which affects our residents and the entire district.
Sincerely,
--,/'
/ --"rv-'Z"tL
Lynette Lee Eng
Mayor
c: Assembly member Marc Berman
State Senator J eny Hill
Los Altos City Council
Los Altos City Manager
Jacqueline Onciano, Santa Clara County Director of Planning
LOS ALTOS HILLS
CALIFORNIA
September 20, 2019
Mr. Robe1i Salisbury
County of Santa Clara Plairning Office
70 W. Hedding Street, East Wing, 7 th Floor
San Jose , CA 95110
RE: Lehigh Southwest Cement Company's Application for Pennanente Quarry Reclamation
Plan Amendment, May 2019
Dear Mr. Salisbury:
The Town of Los Altos Hills ("Town") submits these preliminary comments regarding the May
22, 2019 application from Lehigh Southwest Cement Company ("Lehigh") for the proposed
Reclamation Plan Amendment ("Application") to Santa Clara County Planning Department
("County"). The Application proposes significant changes from the existing County-approved
2012 Reclamation Plan Amendment for Permanente Quarry ("2012 Rec Plan") and these changes
are concerning for the residents of Los Altos Hills . The Application raises concerns for the Town
regarding scenic views, water quality, air quality and truck traffic as well as continued delays in
the court-ordered restoration of Permanente Creek.
Protection of Scenic Views
The Town urges the County to enforce the 1972 Ridgeline Protection Easement deeded by
Lehigh's predecessors to the County. Preservation of natural beauty and natural resources was a
guiding principle in the formation of the Town of Los Altos Hills and continues to steer the Town 's
planning policies and ordinances. The 1972 Ridgeline Protection Easement shields from view the
massive mining and cement operations of Lehigh.
In direct violation of the 1972 Ridgeline Protection Easement, the Application proposes mining
the ridgeline , dropping the ridge elevation by approximately l 00 feet for a distance of 3000 feet
along the ridge visible from Town . In addition , the Application proposes to increase the height of
the West Material Storage Area ("WMSA") by 160 feet allowing this mass of mining waste to be
visible beyond the ridgeline. The 1972 Ridgeline Protection Easement Deed "assigns forever"
from Kaiser Cement & Gypsum Corporation and its successors as Grantor to Santa Clara County
as Grantee protection of "nah1ral beauty and scenic attributes". The deed states the "Grantor shall
not lower the ridge line described in Exhibit 'B' for minin g, quarrying or other purposes below the
sea lev e l elevations along that certain line lab e led 'Pro pos e d Fuhire Riclgeline ' ... nor will the
26 37 9 Fremont Road
Los Altos H ill s
C ~lifornia 94022
650/9.J.1-7222
Fax 65 0/9.J.1-3 160
Mr. Robert Sal is bury
September 20 , 20 l 9
Page Two
Grantor mine , qumTy or otherwise excavate for mineral s or mineral materials in the area shown as
the 'northeast slope' on Exhibit 'B '".
Blasting explosives on the ridgetop , an area exposed to high wind erosion, has the potential to
caJTy larger volumes of fugitive dust to wider distances.
Protection of Water Quality
The Town recommends that the County not allow further delays to the comi-orclerecl restoration
of Pennanente Creek on Lehigh's prope1iy . Water quality impairments have resulted in a lawsuit
by Sierra Club as well as Federal and State regulatory actions that required Lehigh to construct
two onsite water treatment facilities to treat quarry pit water before it is released into Pe1111anente
Creek. The Application proposes to delay the corni-ordered restoration of Permanente Creek by
10 years or more. Permanente Creek continues to be ravaged by Lehigh's mining activities . On
July 9, 2019 the Regional Water Quality Control Board issued a Notice of Vio lation to Lehigh for
a landslide from the Yeager Yard into Permanente Creek . Delays to the stream restoration must
not to be allowed.
The application proposes a significant and concerning departure from the county-approved 2012
Rec Plan pe1iaining to the West Material Storage Area ("WMSA"), a massive mountain of mining
waste (currently 48 million tons). The Application proposes to increase the mass of WMSA and
to leave the overburden in place. This is in direct contradiction with the 2012 Rec Plan which
required Lehigh to backfill the N01ih Quarry pit with the on-site WMSA mountain of material.
The Application cited water quality concerns potentially caused from moving WMSA ; however,
the 2012 Rec Plan and subsequent 2018 Regional Water Quality Control Board 's Water Discharge
Requirements for Lehigh already approved backfilling the pit with WMSA material. Years of
water quality monitoring of quarry pit water and seepage from WMSA resulted in new water
treatment fac ili ties and regulations to manage existing contaminants. Importation of up 60 million
tons of off-site material to be placed in the pit with substantial po1iions submerged below the water
table raises additional water quality questions.
Truck Traffic
The Application proposal to irnp01i up to 60 million ton s of off-site construction so il to fi ll the
quarry pit raises serious traffic and emissions concerns. By Lehigh's estimate, 666 trucks per clay
year-round for 30 to 40 years would traverse local streets . The increased traffic , emissions and
congestion would negatively impact health , safety and quality of life for nearby residents. The
Town recommends denying the Application's proposal to import soil as a primary means to
r ecla im the quaITy pit . The 2012 Rec Plan to backfill the North Quarry by means of conveyors of
on-site materia l is substantially less detrimental to th e community than thi s Application . The
Application's proposal for soil importation dela ys tb e pit reclamation timeline by over 25 years.
Mr. Robert Salisbury
September 20, 2019
Page Two
Conclusion
The Town shares concerns raised by our neighbors , C it y of C up ertino (letter dated July 3, 2019),
City of Los Altos (letter dated July 31, 20 19) and Midpeninsula Regional Open Space Authority
(letter dated July 12, 2019) in their letters to the Coun ty regarding the Application. The County's
incomplete letter of July 22, 2019 raises additional concerns about existing violations and
inadequate geologic reports. The Application is detrimental to the Town's natural resources and
residents, and therefore the To"vn of Los Altos Hills requests the Co unty to firmly uphold key
elements of the 2012 Rec Plan and enforce the 1972 Ric\geline Protection Easement.
Carl Cahill
City Manager
cc: Honorable Supervisor Joe Simitian, District 5
Los Altos Hills City Council
C oun ty of S ant a Clar a
Department of Planning and Development
Planning Office
County Government Ccn lcr, Ec1sI Win g, 7 111 Floor
70 West Hedding Street
San Jose, California 95 t 1 0 -1 705
(408) 299-5770 FAX (408) 2 88-9 198
www.sccplannlng.org
July 22, 2019
Ms. Erika Guerra
Lehigh Southwest Cement Company
24001 Stevens Creek Blvd
Cupertino, CA 95014
FILE NUMBER:
SUBJECT:
SITE LOCATION:
DA TE RECEIVED:
Dear Ms. Guerra:
PLN19-0106
Major Reclamation Plan Amendment
24001 Stevens Creek B lvd.
May 22, 2019
The purpose of this letter is to inform you that the application for a Reclamation Plan
Amendment ("Application") described below in Section I, submitted by Lehigh Southwest
Cement Company ("Lehigh")1 on May 22, 2019 has been deemed incomplete.
To complet~ the Application, Lehigh must submit the following information requested in Section
II and summarized below, no later than 180 days from the date of this letter:
• Diagram showing extent of mining within areas covered by the 1972 Ridgeline Protection
Easement ("1972 Easement");
• Additional clarification about the timeframe for completion of the Permanent Creek
Restoration Area project and compliance with the consent decree;
• Specific mining plan for, and access to, the Rock Plant Reserve Area;
• Proposed tree removal and replacement; and,
• Additional information related to submitted Geotechnical reports.
Other issues and areas of concern identified by the Department related to this app lication are
described in Section III below.
If the requested information is not submitted within 180 days, an application reactivation fee of
10% of the current application fee will be required to continue processing the app lication. If the
requested infonnation is not submitted within one (1) year from the date of this letter, the
Application is deemed abandoned.
1 The app licant is Lehigh Southwest Cement Company ("Lehigh") for property located at 2400 I Stevens Creek
Boulevard, Cupertino CA 95014. As stated on the Appl ication, the property is owned by Hanson Permanente
Cement, Inc.
Board of Supervisors: Mike Wasserman, Cindy Chavez, Dave Cortese, Susan Ell enberg, Joe Simitian
County Executive : Jeffrey V. Smith
Santa Clara County Planning Division
File No. PLN19-0106
Expansion Reclamation Plan Amendment
Prior to submitting the requested information, you are required to schedule an appointment to
discuss your responses to the comments below. Please contact Robert Salisbury
(rnh ert.salisbur y(a),pln .s cc go v .org / 408-299-5785) to schedule this appointment.
I. Projc t Description
On May 22 , 2019, Lehigh submitted an Application to amend the existing Reclamation Plan for
Lehigh Pennanente Quarry (the "Quarry"), approved by the Board of Supervisors on June 26,
2012, hereon referred to as the 2012 Reclamation Plan. The Application proposes to amend the
2012 Reclamation Plan by completely replacing it, including the following significant
modifications:
A. Expand the reclamation plan boundary area by 73.4 acres, increasing the total
reclamation p lan area from 1,238.6 acres to 1,312 acres.
B. Retain the overburden material currently stored in the West Materials Storage Area
("WMSA") in place, originally proposed to be used for backfilling of the main quarry pit
under the approved 2012 Reclamation Plan. This Application proposes to instead imp01t
up to 1 million cubic yards per year of clean fill to backfill the main quarry pit, estimated
to total 33 million cubic yards, and leave the WMSA overburden material in place.
C. Modify the maximum final elevation and recontour the WMSA, increasing the final
elevation from approximately 1,900 feet mean sea level (msl) to 2 ,060 feet msl.
D. Modify the County's 1972 Ridgeline Protection Easement and decrease the lower ridge
crest along a portion of the North Quarry high wall by approximately 100 feet, in order to
mine additional limestone in this area and layback the slope for stabilization.
E. Expand mining activities into a new 30-acre area, referred to as the "Rock Plant
Reserve", located to the south east of the main quarry pit, including reclamation.
F. Use an existing Pacific Gas & Electric, Co. utility access road, or establish a new haul
road between Leigh and Stevens Creek Quarry ("Utility Haul Road") in order to facilitate
the sale of aggregate material to Stevens Creek Quarry. (Note: This aspect of the project
is currently proposed under the separate Utility Road Reclamation Plan Amendment
Application, File No. PLN19-0067.)
G. Reclaim an approximately 3,600-foot segment of the existing Plant Quarry Road and
adjacent areas . (Note: This aspect of the project is currently proposed under the separate
Utility Road Reclamation Plan Amendment Application, File No. PLN19-0067.)
II. Summary of Required Supplemental Information
The following is a summary of the information that Lehigh must provide to the County to
complete its Application.
Page 2 of 7
Santa Clara County Planning Division
File No. PLN19-0106
Expansion Reclamation Plan Amendment
A. Diagram showing extent of proposed mining within the 1972 Ridgeline
Protection Easement
The County of Santa Clara is the holder of a Ridgeline Protection Easement (" 1972 Easement"),
granted to the County on August 18, l 972 by Kaiser Cement & Gypsum Corporation, which
forbids quarrying and mining activities in areas shown on attached exihibits, and requires Kaiser
Cement & Gypsum Corporation and its sucessors to maintain portions of the ridgeline at specific
elevations. The Application proposes to lower the height of the ridgeline protected by the 1972
Easement, and appears to propose quarrying activities within areas were such activities In order
to better evaluate these potential conflicts. Please submit a diagram or diagrams which clearly
shows the limits of the 1972 Easement, including the areas within the 1972 Easement where
mining activities are forbidden, and the extent of proposed mining activities within or in close
proximity to those areas.
B. Revision to Permanente Creek Restoration Area ("PCRA") project timeline
Under the approved 2012 Reclamation Plan, the Pe1manente Creek Restoration Project is
scheduled to be completed in 2030. The proposed Reclamation Plan Amendment proposes to
potentially extend this timeframe to approximately 2040, creating an unexplained delay of 10
years. Please clarifify how the restoration time frames in the Application comply with the
Consent Decree between the Sie1rn Club and Lehigh Southwest Cement Company and Hanson
Permanente Cement, Inc.
C. Rock Plan Reserve Area Mining and Access Design
The submitted Reclamation Plan Amendment does include suffficient detail for the proposed
mining and reclamation of the Rock Plant Reserve area, nor is there sufficient information
descrbing how this area will be accessed from the existing quarry . Please provide an overview of
this area on one sheet at a scale sufficient to show detai ls, and include a separate sheet showing
how this area will be accessed, along with detail showing how this area and the access road will
reclaim eds.
D. Proposed Tree Removal and Replacement
As required by 14 California Code of Regulation§ 3503 (c), all reasonable measures be taken to
protect the habitat of fish and wildlife. Pursuant to this requirement, please include in tabular
format the number, species, and DBH (diameter at breast height) of trees to be removed as part
of this Application.
Page 3 of 7
E. Geology
Santa Clara County Planning Division
File No. PLN19-0106
Expansion Reclamation Plan Amendment
Please submit updated geologic investigation repo1is prepared and signed by a Certified
Engineering Geologist that adequately address the following issues.
1. The County's Geologic Hazards Ordinance requires that geologic reports be signed by a
California Certified Engineering Geologist (CEG). The G-1 through G-4 reports (Binder
1, Appendix G) are signed by a Geological Engineer (Paul Kos, P.E.) and a Geotechnical
Engineer (Nelson Kawamura, G.E.) who both appear qualified to conduct slope stability
analyses included in the investigations. The G-5 report is also signed by a Certified
Engineering Geologist (Jennifer Van Pelt, CEG#2662. However, the signature of a
California Certified Engineering Geologist needs to be included on the G-1 through G-4
reports and the supplemental materials described below.
2 . Subsurface geologic interpretations (fault planes, bedding planes, etc .) need to be added
to all of the cross-sections (e.g. Figure No. 3.3 in Binder 1, Appendix G) and the
"models" used in the slope stability analyses (including the additional cross-sections and
analyses referred to in the following comments #3 and #4).
3. An additional cross-section and related slope stability analysis are needed for the south-
facing slope in the Yeager Yard Area, including the area containing Well WMSA-DMW-
11 located at the south end of the WMSA. Additional surface mapping and subsurface
exploration are needed to thoroughly evaluate the extent of ground movement that
appears to have occun-ed in response to the removal of a substantial amount of material
from the lower portion of that slope.
4. An additional cross-section and related slope stability analysis are needed for the east-
facing cut and fill slopes located north of the "County Jurisdiction" line in Figure No. 1
"Utility Road Grading Plan" in Appendix G-5.
5 . Supplemental geologic/geotechnical evaluation (geologic cross-sections and slope
stability calculations) of the long-term stability of the proposed "layback" of northwest
highwall of the main pit (Section D-D'). The existing slide plane of the 1988 landslide
must be shown and its shear strength considered in the analysis.
6. Supplemental geologic/geotechnical evaluation (geologic cross-sections and slope
stability calculations) of the long-term stability of the upper portion of the proposed cut
slope on the west side of the Rock Plant Reserve (Sections A-A', B-B'. and C-C'). The
stability models must include the eastern edge of the existing (mapped) shear zone which
also underlies the failing cut slope in the adjacent Stevens Creek Quan-y. Unless better
test data are available, utilize the same strength values determined there.
Please submit the items to address the issues raised in this Section ILE (Geology) in your
Application and direct questions regarding the above geology items to Jim Baker (408-299-5774
/ Jim.I3aker(@.p ln.scc gov.org).
Page 4 of 7
III. Additional Issues/Areas of Concern
Santa Clara County Planning Division
File No. PLN19-0106
Expansion Reclamation Plan Amendment
In addition to the incomplete items discussed above in Section II, the following additional issues
and policy conformance areas apply to the Application:
A. Existing Violations -County Ordinance Code Section Cl-71 provides that "[n]o
permit required by this title [Title CJ shall be issued to any applicant. .. upon which
there exists a conflict with any County ordinance or state law ... [p ]ermits may be
issued ... if the applicant has executed a compliance agreement and is in the process of
completing or has completed the repairs, construction, or reconstruction described in
the compliance agreement." On June 13, 2019, a violation was issued to Lehigh by
the County of Santa Clara for violation of the Surface Mining and Reclamation Act
and County Zoning Ordinance Section 4.10.3 70 III (C)(l) related to discharge of
sediment into Permanente Creek. 2 In addition, on July 9, 2019 the San Francisco
Bay Regional Water Quality Control Board issued a violation related to the discharge
of sediment into Permanente Creek. Accordingly, unless these violations are abated,
the Department will recommend denial of this application, and will not conduct
environmental review of this application consistent with Public Resources Code
Section 210180(b)(5) and CEQA Guidelines Section 15270.
B. Overlap with Utility Road Reclamation Plan Amendment -The Application,
being a proposed complete replacement of the approved 2012 Reclamation Plan,
includes areas outside of the existing reclamation plan boundary. These areas are
proposed to be included in the Reclamation Plan boundary by the Utility Road
Reclamation Plan Amendment Application (File No. PLNI 9-0067), which is
currently under review. The County's processing of this Application does not
approve or imply an intent to approve the Utility Road Reclamation Plan
Amendment. Should the Utility Road Reclamation Application be amended, or
denied, changes to the Application will be required.
C. Environmental Impact Report -Due to the scope of the Application, the County
will prepare an Environmental Impact Report ("EIR") to evaluate and disclose to the
public and decision makers the environmental effects of the Application. During
preparation of the required EIR, additional information and peer review of the
submitted technical analyses and reports may be required. The County will provide
Lehigh with specific requests for information once environmental review has
commenced.
D. Import of Fill -Environmental Impacts -The Application proposes to retain the
WMSA in place, and instead use approximately 33 million cubic yards of imported
clean fill material for backfilling of the qua1Ty pit. This import of fill would require
2 Zoning Ordinance Section 5.20.140 states that the decision-making body may deny an applicatoin for any permit
or approval ifthere is recorded notice of violation for any zoning, grading, building code, housing code, or
other land use violation on the property that is the subject of the application.
Page S of 7
Santa Clara County Planning Division
Fi le No. PLNl 9-0106
Expansion Reclamation Plan Amendment
approximately 200,000 truck trips annually, which equates to approximately 666
truck trips per weekday for 30 years. This increase of truck traffic and the resulting
impacts to greenhouse gas emissions, public safety and congestion, likely constitute
significant impacts under CEQA.
E. Import of Fill -Feasibility -It is unclear if the proposed importation of fill 33
million cubic yards of fill is feasib le, as it is dependent upon multiple external
economic factors outside the control of Lehigh Quarry. Given this uncertainty, and
the requirement that the Quarry must be reclaimed per SMARA, the proposed
Reclamation plan may be inconsistent with SMARA as it would create an ongoing
liability if the Quarry could not be reclaimed. The County will conduct a peer review
of the submitted economic study and may require modifications to the Reclamation
Plan or conditions that ensure that the Quarry can be feasibly reclaimed, irrespective
of external economic factors]
F. Retention of WMSA-Visual Impacts -The approved 2012 Reclamation Plan
recognized the visual impact of the West Material Storage Area ("WMSA") and
stated that WMSA material would be removed from the area and used to back-fill the
main quarry pit. By contrast, the Application proposes to increase the height of the
WMSA by 160 feet and retain it in place in perpetuity. This increase in height and
pem1anent retention WMSA material in place may constitute a significant visual
impact.
G. Stevens Creek Quarry Haul Road -The Application seeks continuation of transport
of aggregate rock to Stevens Creek Quarry, either through th e existing haul road or by
establishment of a new haul road . However, the County of Santa Clara issued an
NOV to Stevens Creek Quarry on Febmary 15, 2019 requiring Stevens Creek Quarry
to cease the importation of material from Lehigh due to the lack of required land use
authorization to import, process and sell aggregate rock . As a resu lt, Lehigh cannot
use the proposed haul road for the purpose of exporting aggregate to Stevens Creek
Quarry without Stevens Creek Quarry obtaining the necessary land use entitlements
to import the aggregate from the haul road.
H. Stevens Creek Quarry Reclamation Plan-This expansion includes portions of APN
351-11-001, bordering Stevens Creek Quarry ("SCQ"), which SCQ also plans to
incorporate into their Reclamation P lan boundary as identified in their Use
Permit/Reclamation Plan Amendment pre-application (File No. PLN19-0110). The
County may require Lehigh and/or SCQ to clarify how these overlapping reclamation
plan areas are resolved.
If you have any questions, please contact Robert Salisbury at 408-229-5785 or
rob~rt .sa li sbury @ p ln .sec gov .org.
Page 6 of 7
Santa Clara County Planning Division
File No. PLN19-0106
Expansion Reclamation Plan Amendment
Sincerely,
,..""--\< cJ()
Sf)(., I/ f':;V/L-.j
I
Robert Salisbury
Senior Planner
Atts: Notice of Violation for Yeager Yard Issues
cc: Jacqueline R. Onciano, Director of Planning and Development, County of Santa Clara
Rob Eastwood, Planning Manager, AICP, County of Santa Clara
Manira Sandhir, Principal Planner, AICP, County of Santa Clara
Jim Baker, County Geologist, County of Santa Clara
Elizabeth G. Pianca, Lead Deputy County Counsel, County of Santa Clara
Michael Rossi, Lead Deputy County Counsel, County of Santa Clara
Kristina Loquist, Office of Supervisor Simitian, County of Santa Clara
Kristin Garrison, Environmental Scientist, CA Department of Fish and Wildlife
Lindsay Whalin, Environmental Scientist, S.F. Bay RWQCB
Lisa Horowitz McCann, Assisant Executive Office, S.F. Bay RWQCB
Ana Ruiz, General Manager, Midpeninsula Regional Open Space District
Roger Lee, Acting Public Works Director, City of Cupertino
Deborah L. Feng, City Manager, City of Cupertino
Paul Fry, Engineering and Geology Unit Manager, Division of Mine Reclamation
Page 7 of7
(! c._ Io !1 ( t ?
t) if24L ~Wl
Resident Council Performance Evaluation
New city manager hired -progress in stabilizing senior positions.
Development projects
• Previous Council : Veranda, Hyatt House and Regnart Creek Trail (initial),
Vallee Specific Plan
• Current Council: Cupertino Village Hotel, Regnart Creek Trail (final)
• No new housing approved -prevented over 1700
under any alternative Vallee SB 35 application
• No move to expand housing -just moves to
restrict development, see Item 21 tonight
• Repealed community-driven Specific Plan
Negative publicity and embarrassing leadership
• Mayor Scharf-Wall around Cupertino "joke"
• Planning Commission Chair R "Ray" Wang -intimidation and threats to
residents and critics with no action from council
• Downzoning Vallee
Closed sessions: 24 YTD, with 3 months left in 2019
• Excludes the public -no reportable action
• Legal costs significant
Legal expenses -over $1 million and increasing -ZERO benefit to Residents
• Mayor Scharf Measure C appeals -$225,441
• Randy Hom settlement -$341,531 ( $205,000 settlement plus legal costs)
• Friends of Better Cupertino -Kitty Moore, Planning Commission, et.al.
• Vallee Referendum
• Sand Hill Properties lawsuit -downzoning actions by council
• All in addition to incurring typical liability
Assessment: -NEEDS IMPROVEMENT
October 1, 2019 by Jean Bedard, Cupertino resident
CC 10-1-19 #6
Fiscal Year 2019-2020
City Work Program add
Financial Sustainability item
Written Communications
Cyrah Caburian
From:
Sent:
To:
Cc:
Subject:
Dear City Council:
Jennifer Griffin <grenna5000@yahoo.com >
Tuesday, October 1, 2019 8:04 AM
City Council
grenna5000@yahoo.com
Blackberry Farm Golf Course
I see that we have an item on the City Council meeting about the Blackberry
Farm Golf Course. Golf is a pastime often used by seniors as recreation .
We need to keep recreation opportunities for seniors available in
Cupertino . Golf is quite often used as a networking opportunity for
tech companies. Warriors athlete , Steph Curry, has recently started
a push to make golf available and popular for youth . Mr. Curry has relocated
to the Peninsula and will most likely be interested in golfing opportunities
in the Bay area .
Blackberry Farm Golf Course is a very valuable recreation opportunity to
retain in Cupertino.
Thank you very much.
Sincerely,
Jennifer Griffin
cc 10/01 /19
Item #6