CC 05-15-2020 Item No. 1 Pending Litigation; Vallco Property Owner vs. City of Cupertino_Written CommunicationsCC 05-15-20
#1 Pending Litigation;
Vallco Property Owner LLC
v. City of Cupertino
Written Communications
1
Lauren Sapudar
From:Joseph Fruen <jrfruen@gmail.com>
Sent:Friday, May 15, 2020 12:29 PM
To:City Clerk; Kirsten Squarcia; City Council; Deborah L. Feng; Cupertino City Manager's Office; Liang
Chao; Darcy Paul; Steven Scharf; Rod Sinks; Jon Robert Willey
Cc:City Attorney's Office; Heather Minner Law Email
Subject:Re today's closed session
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the
sender and know the content is safe.
Council and staff:
I note today's closed session to discuss pending litigation in Vallco Property Owner LLC v. City of Cupertino, Santa Clara
County Superior Court, Case No. 19CV355457, concerning the city council's August 20, 2019 and September 3, 2019
actions to downzone the Vallco site. As Councilmember Chao recused herself from the underlying actions, it would be
likewise inconsistent with the requirements of the Political Reform Act under Fair Political Practices Commission
Regulation 18702.2 for her to participate in today's session.
Though the FPPC provided Advice Letter 19‐032 clarifying that Councilmember Chao could participate in matters related
to the 2018 Vallco Specific Plan and the 2018 Vallco SB 35 project litigation, that advice was predicated on the facts
presented in the request for advice. The FPPC based its advice on the "public generally" exception to the materiality
standards in Regulation 18702.2 linked to the similar effects of these two very large projects on a purported significant
segment of the public and Councilmember Chao's property 939 feet from the Vallco site. The council actions at issue in
the litigation being discussed today regard dramatically smaller potential development not addressed by the FPPC's
advice and which would have different impacts. Advice Letter 19‐032 is therefore inapposite to Councilmember Chao's
eligibility to take part in today's discussion. A search of the FPPC's advice letter online database reveals no new advice
letters related to Councilmember Chao's eligibility to participate in this discussion. Accordingly, should Councilmember
Chao participate today, she does so at her own risk and imperils any decision council may make today.
I further note that in substantiating the city's request to stay this litigation, one of the reasons presented to the Court in
its joint stipulation with Petitioners was the fact that the city was "commencing an additional planning effort for the
Vallco property." The other was the ongoing litigation over the Vallco SB 35 project‐‐a matter on which the court has
now ruled. Discussion of the Vallco SB 35 project litigation is conspicuously absent from the notice for today's session,
which would seem to leave only question of the "additional planning effort" as an item for discussion. As a preliminary
matter, any detailed discussion of an "additional planning effort" should only occur at a properly noticed public meeting,
and I would ask that the city attorney and the city manager work diligently to avoid the discussion of anything that
should occur in a noticed open public meeting.
Many thanks for your service,
‐‐
J.R. Fruen, Esq.
408-828-2859
05/15/20 Item No. 1