CC 5-5-20 #11 Draft Urgency Ordinance Extend Permits_redlines_written communicationsDraft Ordinance No. 20-XXXX
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO EXTENDING THE VALIDITY OF PLANNING ENTITLEMENTS
AND PERMITS ISSUED BY THE COMMUNITY DEVELOPMENT
DEPARTMENT; EXTENDING THE TIME FOR CITY REVIEW AND ACTION
ON DEVELOPMENT APPLICATIONS IN THE EVENT STATE LAW
DEADLINES ARE EXTENDED; AND TEMPORARILY SUSPENDING CERTAIN
CEQA REQUIREMENTS AS PROVIDED BY EXECUTIVE ORDER N-54-20
WHEREAS, on February 3, 2020 and pursuant to Section 101080 of the California Health
and Safety Code, the Santa Clara County Health Officer (the “Health Officer”) declared
a local health emergency throughout Santa Clara County (the “County”) related to the
novel coronavirus (“COVID-19”); and
WHEREAS, on February 3, 2020, and pursuant to Section 8630 of the California
Government Code, the Santa Clara County Director of Emergency Services proclaimed a
local emergency throughout the County related to COVID-19; and
WHEREAS, on March 4, 2020, California Governor Gavin Newsom declared a State of
Emergency to make additional resources available, formalize emergency actions already
underway across multiple state agencies and departments, and help the state prepare for
a broader spread of COVID-19; and
WHEREAS, on March 4, 2020, the County issued updated guidance for workplaces and
businesses, stating that employers should take steps to make it more feasible for their
employees to work in ways that minimize close contact with large numbers of people,
including: 1) suspend nonessential employee travel; and 2) minimize the number of
employees working within arm’s length of one another, including minimi zing or
canceling large in-person meetings and conferences. The County also recommended that
persons at higher risk of severe illness should stay home and away from crowded social
gatherings of people as much as possible such as parades, conferences, sporting events,
and concerts where large numbers of people are within arm’s length of one another; and
WHEREAS, as of March 9, 2020, the County reported that there were 43 cases of persons
testing positive for COVID-19 in the County, an increase of 23 in five days. In response,
the County, pursuant to its authority under California Health and Safety Codes sections
101040, 101085, and 120175, ordered that private mass gatherings attended by one
thousand persons are prohibited until March 31, 2020 (the “Order”). This Order was
based upon evidence of increasing transmission of COVID-19 within the County,
scientific evidence regarding the most effective approaches to slow the transmission of
communicable diseases generally and COVID-19 specifically, as well as best practices as
currently known and available to protect vulnerable members of the public from
avoidable risk of serious illness or death resulting from exposure to COVID-19; and
WHEREAS, on March 11, 2020, the City Manager for the City of Cupertino (“City”)
declared a local emergency throughout the City related to COVID-19; and
WHEREAS, on March 17, 2020, the Council ratified and continued the City Manager’s
declaration of a local emergency; and
WHEREAS, on March 13, 2020, the County issued a new order mandating a countywide
moratorium on gatherings of more than 100 persons and a conditional countywide
moratorium on gatherings of between 35-100 persons; and
WHEREAS, also on March 16, 2020, the County, along with five other Bay Area counties,
issued a sweeping “Shelter-in-Place” order (the “Shelter-in-Place Order” or “Order”)
including limitations on non-essential work and operations, including but not limited to
prohibitions on most residential and almost all commercial construction; and
WHEREAS, on March 19, 2020, Governor Newsom issued a “Shelter-in-Place” order
directing all individuals living in the State of California to stay home or at their place of
residence, with limited exceptions, to stop the spread of COVID-19 until further notice;
and
WHEREAS, on March 31, 2020, the public health officers for the six Bay Area counties,
including Santa Clara County, issued an updated “Shelter-in-Place” order effective from
April 1, 2020 through May 3, 2020, and on April 29, 2020 issued an updated “Shelter-in-
Place” order effective from May, 3, 2020 through May 31, 2020 (the “Updated Shelter-in-
Place Order” or “Updated Order”); and
WHEREAS, in an effort to reduce the spread of COVID-19, the City has cancelled several
meetings of the City Council and other City Boards and Commissions in March and April
2020; and
WHEREAS, the City is currently concentrating staff time and resources on the response
to the COVID-19 pandemic and on providing essential City services and protecting
public health and safety during the local emergency; and
WHEREAS, the County’s March 31 Shelter-in-Place Order prohibited most residential
and almost all commercial construction, which together with other efforts to slow the
spread of COVID-19 resulted in the delay or cessation of land use development activity,
effectively shortening the validity of planning entitlements and building permits; and
WHEREAS, the County’s April 29 Shelter-in-Place Order permits all construction projects
to resume to the extent allowed under the Governor’s statewide Shelter-in-Place order,
but requires that construction projects comply with the Construction Project Safety
Protocols issued as part of the County’s Order, which include social distancing,
screening, sanitation requirements and other protective measures that may affect the
speed of construction; and
WHEREAS, the County’s April 29 Shelter in Place Order continues to require most
residents, businesses, and employees to stay at home to limit the transmission of the
COVID-19 virus and limits the types of work that may be performed; and
WHEREAS, employees of businesses that typically work in an office setting are now
required to work from home, and the transition to an alternative work environment
makes it more difficult and time-consuming for some employees to effectively perform
business functions such as preparing construction drawings, reports, and other materials;
and
WHEREAS, even when the Shelter-in-Place Order is lifted, a transition period will be
needed to adjust to new business norms and workplace environments; and
WHEREAS, the Shelter-in-Place Order may compromise the ability of residents and
businesses to effectively collaborate and prepare necessary permit documentation for
land use development and business operations; and
WHEREAS, the County’s April 29 Order includes Construction Project Safety Protocols
which require workers at construction sites to maintain adequate social distancing and
take other protective measures against COVID-19 that may affect construction timelines,
including for projects that are nearing permit expiration dates, and the impending
expiration of permits could create incentives to speed up work at construction sites in
ways that may be inconsistent with social distancing requirements and other
Construction Project Safety Protocols mandated by the County’s Order; and
WHEREAS, The City Council finds that it is necessary for the public health, safety, and
welfare to temporarily extend the validity of certain planning entitlements and other
permits issued by the Department of Planning and Development Services and to extend
the time provided for City review of and action on such applications during the COVID-
19 pandemic in light of the local emergency and Shelter-in-Place Order;
NOW, THEREFORE, THE CITY COUNCIL OF THE OF CITY OF CUPERTINO DOES
ORDAIN AS FOLLOWS:
SECTION 1. Notwithstanding the provisions of Cupertino Municipal Code (“CMC”)
Chapter 16, Sections 16.02.010 and 16.02.050, the City finds that in light of the COVID-19
local emergency and the County’s Shelter-in-Place Order, there is good cause to extend
by 90 days the following permit applications submitted to the Chief Building Official
pursuant to CMC Chapter 16, Section 16.02.050, and to subsequently grant a second
extension of an additional 90 days for those permit applications, and to extend by 180
days the following permits, that are not associated with an active Code Enforcement case,
issued by the Chief Building Official pursuant to CMC Chapter 16, Section 16.02.050: (1)
any permit application or permit that had not expired as of March 16, 2020; and (2) any
permit application submitted or permit issued during the pendency of the County’s
Shelter-in-Place Order, including the March 16 Order, the March 31 Updated Order, the
April 29 Updated Order, and any further continuances of the Order. This extension of
permit applications and permits shall be provided automatically and at no cost to a
project applicant.
SECTION 2. Notwithstanding the provisions of CMC Chapter 19, Sections 19.12.030 and
19.12.180 and any Record of Land Use Action or Final Director’s Decision, the time to
commence construction for the following Planning Permit Approvals listed in CMC
section 19.12.030 is hereby extended until the County’s Shelter-in-Place Order is lifted,
plus an additional 180 days: (1) Planning Permit Approvals for which the time to
commence construction had not expired as of March 16, 2020; and (2) Planning Permit
Approvals issued during the pendency of the County’s Shelter-in-Place Order, including
the March 16 Order, the March 31 Updated Order, the April 29 Updated Order, and any
further continuances of the Order. This extension shall be provided automatically and at
no cost to a project applicant.
SECTION 3. In the event that any of the timelines for City action established in the Permit
Streamlining Act (Gov. Code § 65920 et seq.), Housing Accountability Act (Gov. Code §
65589.5), Subdivision Map Act (Gov. Code § 66410 et seq.), Government Code section
65852.2 (permitting of Accessory Dwelling Units), Civil Code section 714(e)(2)(B)
(permitting of solar installations) and/or other state law or regulation are extended or
suspended by the Governor, the corresponding timelines for the City to act on any
application pursuant to Cupertino Municipal Code Titles 16, 18, or 19, including without
limitation, Building Permits, Subdivisions, Architectural Review, Standard Staff Review,
and Development Permit Review, shall likewise be automatically extended to the
maximum extent consistent with state law, including any emergency orders issued by the
Governor, without any further action by the City Council.
SECTION 4. The Governor’s executive order dated April 22, 2020 (Executive Order N-
54-20) provides that the public filing, posting, notice, and public access requirements set
forth in Public Resources Code sections 21092.3 and 21152, and California Code of
Regulations, Title 14, sections 15062(c)(2) and (c)(4); 15072(d); 15075 (a),(d), and (e);
15087(d); and 15094(a), (d), and (e), for projects undergoing, or deemed exempt from,
California Environmental Quality Act review, are suspended for a period of 60 days
(provisions governing the time for public review are not suspended). Executive Order N-
54-20 also provides that the timeframes set forth in Public Resources Code sections
21080.3.1 and 21082.3, within which a California Native American tribe must request
consultation and the lead agency must begin the consultation process, are suspended for
60 days. In accordance with Executive Order N-54-20, these 60-day suspensions of
requirements apply to City actions subject to the California Environmental Quality Ac t
pursuant to the guidelines adopted in CMC section 2.84.090.
SECTION 5. Government Code section 36937 and CMC section 2.12.050 authorize the
adoption of an urgency ordinance to protect the public peace, health or safety, where
there is a declaration of the facts constituting the urgency and the ordinance is adopted
by four-fifths of the Council.
SECTION 6. The City Council hereby finds, determines and declares that this urgency
ordinance adopted pursuant to California Government Code sect ion 36937 and CMC
section 2.12.050 is necessary because there is a current and immediate threat to the public
health, safety and/or welfare and a need for immediate preservation of the public peace,
health, or safety that warrants this urgency measure, which finding is based upon the
facts stated in the recitals above, all of which are deemed true and correct, as well any
oral and written testimony at the May 5, 2020 City Council meeting.
SECTION 7. This Ordinance is declared by the City Council to be an urgency measure
necessary for the immediate preservation of the public peace, health or safety. The facts
constituting such urgency are all of those certain facts set forth and referenced in Section
6 of this Ordinance.
SECTION 8. The City Council of the City of Cupertino held a duly noticed public meeting
on May 5, 2020, and after considering all testimony and written materials provided in
connection with that meeting introduced this ordinance and waived the reading thereof.
SECTION 9. If any section, subsection, sentence, clause, or phrase of this Ordinance is
for any reason held to be invalid or unconstitutional by a decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this Ordinance. The City Council hereby declares that it would have passed
this Ordinance and each and every section, subsection, sentence, clause, or phrase not
declared invalid or unconstitutional without regard to whether any portion of the
Ordinance would be subsequently declared invalid or unconstitutional.
SECTION 10. The City Council finds that adoption of this Ordinance is exempt from
environmental review under the California Environmental Quality Act (CEQA) pursuant
to CEQA Guidelines section 15061(b)(3), because it can be seen with certainty that
temporarily extending certain permit approvals and application processing timelines for
a limited period of time will not have a significant effect on the environment.
SECTION 11: Severability.
Should any provision of this Ordinance, or its application to any person or
circumstance, be determined by a court of competent jurisdiction to be unlawful,
unenforceable or otherwise void, that determination shall have no effect on any other
provision of this Ordinance or the application of this Ordinance to any other person or
circumstance and, to that end, the provisions hereof are severable.
SECTION 12: Effective Date.
This urgency Ordinance shall take effect immediately upon adoption as provided
by Government Code Section 36937 and CMC section 2.12.050 and shall remain in effect
until the County’s Shelter-in-Place Order is lifted, plus an additional 180 days, unless the
Ordinance is otherwise terminated or extended by the City Council .
SECTION 13: Certification.
The City Clerk shall certify to the passage and adoption of this Ordinance and shall
give notice of its adoption as required by law. Pursuant to Government Code Section
36933, a summary of this Ordinance may be published and posted in lieu of publication
and posting of the entire text.
SECTION 14: Continuity.
To the extent the provisions of this Ordinance are substantially the same as
previous provisions of the Cupertino Municipal Code, these provisions shall be
construed as continuations of those provisions and not as amendments of the earlier
provisions.
INTRODUCED and ADOPTED as an urgency ordinance of the City of Cupertino
at a meeting of the City Council held on May 5, 2020, by the following vote:
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
__________________
Steven Scharf, Mayor
City of Cupertino
_ _____ __________________
Date
ATTEST:
________________________
Kirsten Squarcia, City Clerk
________________________
Date
APPROVED AS TO FORM:
__________________________
Heather Minner, City Attorney
________________________
Date