Loading...
CC Resolution No. 05-196 RESOLUTION NO. 05-196 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO DENYING THE PETITION OF CATHY AND DALE HELGERSON SEEKING COUNCIL RECONSIDERTION OF ITS APPROVAL OF A TENT A TIVE MAP (TM-2004-05) FOR SUBDIVISION OF LANDS OWNED BY CALIFORNIA WATER SERVICE (APN 326-33-107) LOCATED ON GREENLEAF DRIVE, CUPERTINO WHEREAS, the California Water service Company owns real property, located on Greenleaf Drive, Cupertino, California, more specifically, APN 326-33-107; and WHEREAS, Application TIM 2004-05 for a tentative subdivision map of the property was brought before the Planning Commission by Wayne Aozasa and approved on January 25, 2005 by the Commission; and WHEREAS, that approval was appealed to the City Council on March 15, 2005 by Cathy and Dale Helgerson and Leo and Jian Wang; and WHEREAS, the City Council, after hearing testimony, tabled this item until an independent evaluation of the project could be completed; and WHEREAS, the appeal was heard on November 1, 2005 and after testimony and discussion, was denied by the City Council; and WHEREAS, Cathy and Dale Helgerson requested that the City Council reconsider its decision under the provisions of Section 2.08.096 of the City's ordinance code; and WHEREAS, the City Council has considered all relevant evidence presented by the parties at all hearings, including evidence presented at the November 29,2005 reconsideration hearing. NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS: 1. The petitioners' Reconsideration Petition is defective on its face in that it does not offer proof of facts as required by Municipal Code Section 2.08.096. 2. The petitioners have made no offer of new relevant evidence that, in the exercise of reasonable diligence, could not have been produced at any earlier city hearing. (See Municipal Code § 2.08.096B(I).) 3. The City Council did not exclude any evidence presented by the petitioners at any prior city hearing. (See Municipal Code § 2.08.096B(2).) 4. The City Council has proceeded entirely within its jurisdiction regarding the application for a tentative subdivision map. (See Municipal Code § 2.08.096B(3).) Resolution No. 05-196 2 5. The petitioners have failed to present any evidence that the City Council failed to provide a fair hearing. (See Municipal Code § 2.08.096B(4).) 6. The petitioners have failed to demonstrate that the City Council abused its discretion regarding the application for a tentative subdivision map. (See Municipal Code § 2.08.096B(5).) Specifically, the City Council determines that: The City Council proceeded in a manner required by law. The City Council's decision is supported by findings of fact. The findings offact related to the City Council's decision were supported by substantial evidence in the record of proceedings. 7. The specific allegations contained in the petition for reconsideration are refuted by specific City Council findings which are attached to this resolution and incorporated herein. 8. The petitioners' Petition for Reconsideration of the City Council's determination of November I, 2005 is DENIED. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 29th day of November, 2005, by the following vote: Vote Members of the Citv Council AYES: NOES: ABSENT: ABSTAIN: Kwok, Lowenthal, Sandoval, Wang, James None None None ATTEST: . ~~ Ci~ CITY COUNCIL FINDINGS IN RESPONSE TO PETITION FOR RECONSIDERATION Municipal Code section 2.08.096 states: "A petition for reconsideration shall specify, in detai~ each and every ground for reconsideration. Failure of a petition to specify any particular ground or grounds for consideration, precludes that particular omitted ground or grounds ftom being raised or litigated in a subsequent judicial proceeding. The grounds for reconsideration are limited to the following: 1. An offer of new relevant evidence which, in the exercise of reasonable diligence, could not have been produced at any earlier city hearing. 2. An offer of relevant evidence which was improperly excluded at any prior city hearing. 3. Proof of facts which demonstrate that the City Council proceeded without, or in excess of its jurisdiction. 4. Proof of facts which demonstrate that the City Council failed to provide a fair hearing. S. Proof offacts which demonstrate that the City the City Council abused its discretion by: a. Not proceeding in a manner required by law; and/or b. Rendering a decision which was not supported by findings of fact; and/or c. Rendering a decision in which the findings of fact were not supported by the evidence. The petition for reconsideration ofTM-2004-0S, a tentative map of a subdivision of property owned by California Water Service Company (CWSC) on Greenleaf Drive, submitted by Cathy and Dale Helgerson on November 10, 2005 asserts as follows: 1. An offer of new relevant evidence, which in the exercise of reasonable diligence, could not have been produced at any earlier city hearing: ResDonse: The appellant has failed to provide relevant evidence of any kind that was not considered at the appeal hearing. PETmON "The santa Clara County Water District should have tested the water and the soil of the well at the East End well and did not." P. 2 "I was amazed that the City did not tell us about these FINDING The question of which ofthe wells was tested was completely clarified by Shawn Heffuer, Director of Real Estate and Corporate Development for the CWSC in direct testimony to the City Council at the hearing of November I, 2005 and further in response to a direct question by Council member Sandoval that the well tested was the well at the east end of Greenleaf Drive on the parcel proposed for development owned by the CWSC. The existence of other wells, while not relevant, was also made known at the Ii h· 1 three wells even after the appeal parties were inquiring about any other wells in Cupertino." P. 2 2. An offer of relevant evidence whicb was improperly excluded at any prior city bearing: ResDonse: The petitioner has made no offer of relevant evidence that was improperly excluded at the original appeal hearing. The petition contains a number of statements and asks questions that are not fact based nor do they describe any relevant evidence of any kind. They are simply questions or opinions on subjects that were fully considered at the prior hearing. PETmON FINDING ". .. we feel that the This discussion was presented at the original appeal California Water Company hearing and was discounted by the City staff's should not have been presentation. The Council considered that matter along involved in any type of with all others. This "evidence" was not excluded at any referral or recommendation prior city hearing. to the City on choosing of the vendor." P. 2 "The appeal parties would As noted above the confusion over which well had been like to know about possible tested was fully and adequately clarified by Shawn well testing at the West End Heffner's testimony at the appeal hearing. of Greenleaf Drive near Garden Gate School. P.2 Why was the information The existence of other wells, while not relevant, was also about the abandoned will made known at the appeal hearing. [sic] kept ftom the appeal parties and the Cupertino Citizens. 3. Proof of facts which demonstrate that the City Council proceeded without, or in excess of, its jurisdiction. Re!\POnse: The petitioner has not provided any evidence regarding contamination of water wells, abandoned or in production. The petition contains unfounded and unsubstantiated statements. These statements, which are apparently the petitioner's personal opinion of what should or should not have been done, are irrelevant and do not represent evidence to support the allegation that the Council acted either without jurisdiction or in excess of its jurisdiction. 2 PETmON FINDING "The City Council approved None ofthe wells in Cupertino are contaminated. This the abandonment of the [West statement by petitioners appears to offer an opinion, but End] well without proper offers no facts or proof that the Council acted without or consideration of any possible in excess of its jurisdiction. contamination to the four wells. Even after the approval of the Water Well test of the Well at the East End of Greenleaf Dr. the appeal parties and the Cupertino Citizens had made the City very aware of their concerns about any possible contamination of any wells in Cupertino and this should have been considered prior to any abandonment of a well without a proper water and soil test" P. 3 "The possible contamination Petitioners make no offer of proof of contamination of of the East End Well near the well. In fact, testing of the subject well indicated Apple Computer should have that the water meets domestic use standards. been a wakeup call for the City...." P. 3 "The Air Quality Control The reference to issues between Apple Computer and Board has sent Apple the Air Quality Board (which was spoken to at the Computer a letter requesting a hearing by Michael Foulkes of Apple Computer) is not list of all contaminants in the relevant to the appeal and is not a factor for the building...." P.3 Council's consideration or reconsideration of the appeal. 4. Proof of facts which demonstrate that the City Council failed to provide a fair hearing. ResDonse: The petitioner has not provided any proof of facts required as grounds for reconsideration to demonstrate that the Council failed to provide a fair hearing. In fact, a review of the hearing shows that the Council heard lengthy testimony ftom the appellants and ftom the applicants as well as numerous facts presented by the city staff. PETmON "We still wish to ask the question was the West End Well tested?" . 4 FINDING Whether or not the West End Well was tested at tlñs time is irrelevant to this application. The West End Well is not on the sub· ect ro crt . The hearin was in 3 regards to a tentative subdivision map approval for property located on Greenleaf Drive, Cupertino. All relevant evidence was considered by the council. "The East End well is the well As noted above, the confusion over which well had been that was part of the original tested was fully and adequately clarified by Shawn appeal and because the City Heffner's testimony at the appeal hearing. did not review the correct well at the meeting, we feel that one of the reasons for reconsideration should be this well."P.4 "The appeal parties had asked The hearing was in regards to a tentative subdivision the City and the California map approval for property located on Greenleaf Drive, Water Company to provide Cupertino. All relevant evidence was considered by the information pertaining to the . council. other wells in Cupertino and we hoped to view these well [sic] in order to get a good idea of how close these wells were to the streets, sidewalks and home." P. 4 "We also believe that the The existence of other wells, while not relevant, was California Water Service also made known at the appeal hearing. Company were aware of the othe£ wells and also deliberately held back. this information ftom the appeal parties and the Cupertino Citizens." P. 4 There is a great deal of verbalizing in this section presented by the petitioner that refers to matters that were previously heard and discussed by the Council, some relevant and some irrelevant as regards the approval of the tentative subdivision map, the subject of the appeal. The rest of the verbiage consists of irrelevant and inaccurate comments by the petitioner regarding well test results. For example, the appellants state in their petition that "...the four metals that were detected are non cancer chemicals but that is not true they cause cancer". The fact is that the report presented at the appeal hearing described the metals as non-carcinogenic as represented by the toxicologist preparing the report, which is fact and science·based. (See p. 3, SLR Report.) The appellant's statement to the contrary is not supported by proof or evidence of any kind. It is unfounded and unsupported. This is true of all the statements made by the petitioner in reference to the SLR report provided to the city and presented at the original hearing. An example of the 4 uninformed and irrelevant comments in the peûtion is the statement that the metal "Vanadium's test results was 6.5 ppb. the detection limiUs 3.0 ppb ... the metal is considered toxic and causes cancer" This statement is completely at odds with the report and has no basis in fact and is without proof or substantiation. The pcûtioner apparently believes incorrectly that the reporting limit (which the petition calls the detection limit) is the health level of concern. In fact, the reporting limit is the lowest limit at which the metal could be expected to be detected. The health level of concern, called the "action level," is actually 15 ppb, which is well above the tested level. (See Table 1, SLR Report.) The petition similarly goes on to inaccurately list a variety of seemingly random extracts of numbers ftom the toxicologist's report with no relevance or context. The petitioner has had ample opportunity to respond to anything presented by the staff and the consultant's report with fact based evidence at the hearing. However, even though the petitioners offered no prÒof, data, facts or science to support their statements, questions or comments, the Council heard and considered everything presented. There is no basis in any material provided in the petition that supports the allegation that the Council failed to provide a fair hearing. s. ProoF of Facts which demonstrate that the City Council abused its discretion by: a. Not proceeding in a manner prescribed by law; and/or b. Rendering a decision which was not supported by findings of fact; and/or c. Rendering a decision in which the fmdings offaet were not supported by the evidence. Response: The appellant's petition under this heading presents a lengthy statement of unsubstantiated or untrue remarks about the Council's conduct and consideration at the original appeal hearing. The petition makes no offer of proof. PETmON FINDING "The City Council failed to review the Petitioner offers no basis in fact for this overall concerns of the appeal parties and allegation. the CUDertino Citizens." P. 6 " . . . the request ttom the appeal parties and There is no proof of fact of any kind to Cupertino Citizens to extend the 50 feet support this allegation. In fact. that standard to 100 feet to protect the well was suggestion was heard and was not deemed never considered." p. 6 necessary by either the staff or the applicant so no action was needed or taken. Petitioners' other remarks are statements that certain things, such as the location of storm and sanitary sewer lines or proximity of the well to the sidewalk are not acceptable to them. While that may be their opinion, petitioners offer no evidentiary facts to support any of the grounds for reconsideration. 5 Tbe petition presents a lengthy statement about how the SLR report should be completely discounted because the City"... should not have used. .. SLR or BC Labs because the California Water (Services) Company told them who to use." They further allege that the vendor selection should have been a". ..non bias selection and this was not done." This discussion was previously presented at the original appeal hearing. The Council considered that matter along with all others. The petitioner offered no evidence at the original hearing to support that allegation, nor have they offered any in the petition for reconsideration. This is a rehash of petitioners' earlier objection and, in no way, constitutes an abuse of discretion by the Council. . The balance of Petitioners' claims regarding the Council's "disregard" of evidence and the appellant's "right to speak... or to discuss the issues" are untrue and/or unsubstantiated. Additionally, petitioners offer no facts to substantiate their claim that the City Council abused its discretion by not proceeding in a manner prescribed by law; . and/or rendering a decision which was not supported by findings offact and/or rendering a decision in which the findings of fact were not supported by the evidence. Conclusion In reviewing the Petition filed by Cathy and Dale Helgerson to Reconsider the Council's decision to deny the original Appeal on November 1, 2005 as noted in detail above, the City Council fmds that there is no relevant evidence or proof of facts that support any of the grounds for reconsideration as required by Cupertino Municipal Code Section 2.08.096 B. 1-5. 6 . ...--,---