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CC Resolution No. 06-026 RESOLUTION NO. 06-026 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO DENYING THE PETITIONS OF KEITH HOCKER AND OVCA REPRESENTATIVES JIM WHEELER AND MARK EDWARDS FOR RECONSIDERATION OF ITS APPROVAL OF THE APPEAL OF APPLICATION U-2005-04 BY ROBERT LINDBERG ON BEHALF OF GATE OF HEAVEN CATHOLIC CEMET ARY REGARDING UPRIGHT MARKERS AND THE CEMETERY LANDSCAPE PLAN. Whereas, the Gate of Heaven Cemetery in the City of Cupertino owned by the Catholic diocese applied for a use permit to include several new features including upright markers; and Whereas, application U-2005-04 was brought before the planning commission by Robert Lindberg and upright markers were denied on January 25, 2005; and Whereas, the Planning Commission also requested review of the cemetery landscape plan; and Whereas, that denial and review was appealed to the City Council on November I5, 2005 by Robert Lindberg; and Whereas, the City Council, after hearing testimony, reversed the Planning Commission and upheld the appeal; and Whereas, Keith Hocker and OVCA representatives Jim Wheeler and Mark Edwards petitioned the City Council for reconsideration of 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 January I7, 2006, reconsideration hearing. NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS: 1. The petitioners' Reconsideration Petitions are defectiye in that they do 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(1).) 3. The City CounciI 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 use permit. (See Municipal Code § 2.08.096B(3).) 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).) ResoIution No. 06-026 2 6. The petitioners have failed to demonstrate that the City Council abused its discretion regarding the application for a use permit. (See Municipal Code § 2.08.096B(5).) Specifically, the City Council determines that: a. The City Council proceeded in a manner required by law. b. The City Council's decision is supported by findings offact. c. 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 petitions for reconsideration are refuted by specific City Council findings, which are attached to this resolution and incorporated herein. 8. The petitioners' Petitions for Reconsideration ofthe City Council's determination of November I5, 2005 is DENIED PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this I 7th day of January 2006, by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: VVang,](wok,Mahoney,SandovaI Lowenthal None None ATTEST . ~ C~ APPROVED: } ~ 1ìM L/~ ayor, City of Cupertmo Resolution No. 06-026 3 CITY COUNCIL FINDINGS IN RESPONSE TO PETITION FOR RECONSIDERATION Pursuant to Cupertino Municipal Code section 19.124.070 a conditional use permit may be granted where the decisionmaker makes the following findings: I) The proposed use, at the proposed location, will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience; 2) The proposed use will be located and conducted in a manner in accord with the Cupertino Comprehensive General Plan and the purpose of this title. In granting the appeal of Robert Lindberg on behalf of Gate of Heaven Cemetery, the City Council found: a. that the use was in accord with the Cupertino General Plan Land Use Map; and, b. that use of upright markers relocated away rrom the residential and open space areas, while visible rrom some areas and less so rrom others, can be mitigated with additional landscape screening. With this proposed mitigation, the upright markers will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience. Municipal Code section 2.08.096 states: "A petition for reconsideration shall specify, in detail, 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 rrom 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 offacts 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. 5. Proof of facts 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 offact; and/or c. Rendering a decision in which the findings of fact were not supported by the evidence." Two petitions for reconsideration of the appeal of Application No. U-2005-04, Gate of Heaven Cemetery, 22555 Cristo Rey Drive, Cupertino were submitted. One was submitted by Keith Hocker offering "proof of facts which demonstrate that the City Council failed to provide a fair hearing." Mr. Hocker's assertions are addressed under item #2. below. The other petition was submitted by Oak Valley Community Awareness representatiyes Jim Wheeler and Mark Edwards and 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: Response: The appellants have failed to proyide new relevant evidence of any kind that was not considered at the appeal hearing. Resolution No. 06-026 4 OVCA PETITION FINDING I. The amount of inscription Council member James' comment regarding the size of possible on horizontal her husband's veteran marker is irrelevaÌ1t. Several markers was incorrectly people, including several Asians, spoke to the adequacy stated as being limited in or inadequacy of horizontal markers. The Council did not comparison to upright make a determination based on whether an upright markers. marker allows for more text than a horizontal marker, since the size of horizontal markers is discretionary. 2. The Cemetery failed to A survey of their client community is not a requirement, survey their client although one may have been requested by the Planning community, yet improperly Commission. Evidence of several informal surveys was stated and represented that presented at the hearing. they had, thus the decision was made on faulty information and the true facts could not be presented. 2. Proof of facts which demonstrate that the City Council failed to provide a fair hearing. Response: The petitioners have 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 from the appellants and from the petitioners as well as numerous facts presented by the city staff and the public. OVCA PETITION FINDING I. The facts to be provided by Three speakers voluntarily gave their 2-minute speaking the presenters opposing time to Jim Wheeler. "Mr.. Wheeler was not identified upright markers could not be to me by either staff or by himself as an authorized heard, because the Council representatiye of any opposition group and therefore was improperly and arbitrarily entitled to speak for only two minutes.... At no time did denied their right to speak. he inform me that he was the authorized representatiye ofOVCA or any other opposition group." Declaration of Patrick Kwok, pg. 2, ~ 8-9. 2. The process was managed in a manner that was unfair to those opposing upright markers, and slanted in favor ofthe Appellant and their supporters. ......................... a. From the outset, the Mayor a. This is based on opinion only. The mayor asked the Resolution No. 06-026 5 led the Appellant's presentation on upright markers, and through the positive question and answer process, leading the appellant's testimony, indicated his support for upright markers. b. Mayor Kwok also allowed the proceedings to deteriorate to the point that there was applause after individuals spoke in the public hearing. c. He also failed to interrupt speakers who spoke on the Veterans' Memorial issue, even though participants were told at the start of the public hearing that the Veterans' Memorial issue was previously resolved and participants must confine their comments to the two issues -- upright markers and landscape review. d. Mayor Kwok was inconsistent in cutting off speakers at 2 minutes during the public hearing. Some opposition speakers were cut offpromptIy at 2 minutes, yet speakers in favor were not. e. Not all opposition speakers were allowed to speak; 3 speakers were denied the right to speak and the opposition was thus denied due process and their right to be heard. f. The Council did not consider or discuss the reasoning used in the decision by the Planning Commission, even though some of the same appellant many questions, as did the other council members. The Mayor may not have asked the questions the OVCA representatives would have asked or liked him to ask. It is questionable whether his questions "indicated his support for upright markers." Petitioner makes no offer of proof of bias in favor of upright markers. b. This is irrelevant. The audience rrequentIy responds to speakers whether it is allowed or not. In this case, the audience responded to comments made by both proponents and opponents. The applause did not contribute to an "unfair hearing." c. This is irrelevant. The mayor is under no obligation to iq,terrupt speakers who get off point. d. With the exception of the monsignor, who spoke for 3 :04, this allegation is untrue. Speakers who spoke longer than two minutes were asked to conclude their statements. e. Three speakers voluntarily gave their 2-minute speaking time to Jim Wheeler. They were not obligated to do so. f. Petitioner makes no offer of facts to support the allegation. While Council may not have discussed the Planning Commission decision, they received and considered all of the relevant information before making their decision. Resolution No. 06-026 6 concerns voiced by the Planning Commissioners were presented during the public hearing. g. During the Council g. This is based on opinion only. After the close ofthe discussion of the upright public hearing each council member openly discussed markers issue, the Mayor his or her opinion of the evidence received. There is no spoke in an animated and loud restriction on their individual presentation regarding manner, speaking over the their animation or tone of voice. orderly opposition speakers and quashing the opposing views of the dissenting Council members. h. Council Member Sandra h. This is based on opinion onIy. A reduction in the James said she "would not number of upright markers was not a subject of the eyen consider" a reduction of appeal. Refusal to consider it as an option does not the number of upright necessarily demonstrate "inadequate consideration of markers, demonstrating opposition's position." Petitioner makes no offer off acts inadequate consideration of to support the allegation. the opposition's position. i. The Mayor allowed a "rush i. This is based on opinion. Petitioner makes no offer of to judgment" summarily facts to support the allegation. Some might say that 2 overruling a 5-0, well- hours and 27 minutes of testimony and deliberation researched and well-reasoned would not be considered a "rush to judgment." Planning Commission decision. 3. Over half the presentation This is irrelevant. The landscape review issue was part by the appellant, and oyer half of the appeal and needed to be discussed. the discussion by the City Council, was focused on the landscape review issue. 4. As a client ofthe Petitioner offers no facts to support an alIegation of bias Cemetery, Council Member or unfair hearing. In this case, Ms. James' opinion of Sandra James actively spoke the previously approved housing development is against the housing irrelevant. development that she personally approved as a member ofthe City Council in 1998. 5. The Visual Projection a. The OVCA representative was not identified as such Resolution No. 06-026 7 System was not working for the OVCA spokes-person opposing the upright markers, preventing communication of relevant facts on the matter to the City Council and the Community. at the time of the meeting; b. The faiIure of audio-visual equipment does not constitute an "unfair" hearing. Information was adequately transmitted verbally to the City Council. HOCKER FINDINGS PETITION 1. Patrick Kwok has a clear Prior to the meeting Patrick Kwok conferred with conflict of interest in this the City Attorney regarding his volunteer work for matter and shouId have his church, St. Josephs in Cupertino. Declaration of removed himself from the Patrick Kwok,pg. 3, 1[13. vote. Patrick Kwok has "no financial interest in the Gates of Heaven Cemetery or its owner the Diocese of San Jose and own(s) no burial plot at the site." Mr. Kwok sits on the fmanciaI committee of the local parish, which has no fmanciaI connection with the operation of the cemetery. Declaration of Patrick K wok, pg. 2, 1[ 12. 2. Comments by Sandra This statement is based on petitioner's opinion only. James regarding the The petitioner fails to support his opinion with regarding the Oak Valley concrete facts necessary for a showing of bias. Neighborhood make "her biased in this case and demonstrate... that her judgment and reasoning in the case [is I suspect." The Council heard and considered everything presented. There is no basis in any materiaI provided in the petitions that supports the allegation that the Council failed to provide a fair hearing. 3. Proof of Facts which demonstrate that the City Council abused its discretion by: a. Rendering a decision which was not supported by findings offact; and/or b. Rendering a decision in which the findings of fact were not supported by the evidence. Response: The petition under this heading presents unsubstantiated statement about the Council's consideration at the appeal hearing. The petition makes no offer of proof. OVCA PETITION I. The Council did not respond to, review or discuss the rationale, reasonin or facts Resolution No. 06-026 8 behind the 5-0 decision of the Planning not have discussed the Planning Commission denying upright markers. Commission decision, they received and considered all of the relevant infonnation before making their decision. Contrary to the Cemetery's representations The Council had the correct infonnation on and statements that the upright markers are the visibility impacts. Infonnation was not visible rrom anywhere outside the provided in the staff report and was Cemetery, the proposed gravestones are visually shown by a speaker. The Council visible rrom multiple locations, and there is found, per the staff report, that use of a definite negative visual impact to the upright markers relocated away rrom the neighbors and Open Space users. residential and open space areas, while visible rrom some areas and less so rrom others, can be mitigated with additional landscape screening. Petitioners offer no facts to substantiate their claim that the City Council abused its discretion by not proceeding in a manner prescribed by Iaw; and/or rendering a decision which was not supported by fmdings of fact and/or rendering a decision in which the fmdings of fact were not supported by the evidence. Conclusion In reviewing the Petitions fIled by Keith Hocker and by Oak Valley Community Awareness representatives Jim Wheeler and Mark Edwards to Reconsider the Council's decision to grant the AppeaI of Robert Lindberg on November 15, 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.I-5.