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17 Critzer appeal "I 0Œ\~ , . CUPEIQ1NO PUBLIC WORKS DEPARTMENT Summary AGENDA ITEM /1 AGENDA DATE Februarv 27, 2006 SUBJECT AND ISSUE Hearing on Appeal by David and Margaret Critzer and Jowei Chen of the Notice of Detennination by the City Manager denying the Appeal of the Community Development Director's decision regarding the installation of a bathroom window at 20272 Northcove Square and Recommendation by Staff to deny the Appeal. BACKGROUND On January 17, 2006 the City Council had scheduled a hearing (Item 23, Council Agenda of 1-17-06) on the appeal of David and Margaret Critzer and Jowei Chen of the City Manager's detennination regarding the installation of a bathroom window at 20272 Northcove Square. Unfortunately, due to an inadvertent error in assembling the lengthy Council meeting agenda packet, the letter and attachments for the appeal from Mr. James Eller, the attorney representing the appellants, were not received by the Mayor and City Council Members. In consultation with Mr. Eller and Mr. And Mrs. Critzer at the January 17, 2006 City Council meeting, rather than holding the hearing as scheduled, it was deemed more appropriate to postpone the hearing in order for the Mayor and Council to have all the documents before them. Therefore, on recommendation of the City Staff, the City Council acted to postpone the hearing on the appeal to Monday February 27,2006 at 6:45 PM. Attached to this report is the appeal by Mr. James Eller on behalf of the Critzers and Jowei Chen dated November 30, 2005 along with various attachments to the appeal. A letter from Mr. Steven White representing the Northpoint Homeowners Association is also attached. Finally, enclosed for the Council's consideration is the original staff report from the January 17, 2006 meeting which recommends that the appeal be denied. I{~( Printed on Recycled Paper STAFF RECOMMENDATION It is recommended that the City Council deny the Appeal by David and Margaret Critzer and Jowei Chen of the Detennination by the City Manager that that the Community Development Director acted properly and in full compliance the Cupertino Municipal Code in issuing the building pennit for the Modification to install a window in the upper bathroom at 20272 Northcove Square. Submitted by: Approved for submission: ~~uuU~d Director of Public Works jiM! David W. Knapp City Manager Attachments: Appeal Letter and enclosures from James Eller representing the Critzers et. al. Letter from Steven White representing the Northpoint Homeowners Association January 27,2006 Staff Report November 15, 2005 Notice of Detennination by City Manager n~:2 ·,1 i i,\~~ ~'I " . CUPEIQ1NO PIffiI II" WORKS nRPARTMRNT Summary AGENDA ITEM AGENDA DATE January 17,2006 SUBJECT AND ISSUE Hearing on Appeal by David and Margaret Critzer and Jowei Chen of the Notice of Detennination by the City Manager denying the Appeal of the Community Development Director's decision regarding the installation of a bathroom window at 20272 Northcove Square and Recommendation by Staff to deny the Appeal. INTRODUCTION On September 6, 2005, the Council heard an appeal filed by David and Margaret Critzer to the City Manager's detennination to dismiss an administrative appeal hearing regarding the Community Development Directors decision to issue a pennit for the installation of a bathroom window at 20272 Northcove Square. The hearing was dismissed because the City learned that a civil suit in Superior Court had been previously served on the parties regarding the same issue in dispute. Upon hearing the appeal, the Council directed the City Manager to hold the Administrative hearing (which was dismissed without prejudice, allowing it to be reconsidered at a later date) and that hearing was held on October 25,2005. Following the hearing, the Director of Public Works, as the hearing officer designated by the City Manager City, issued a Notice ofDetennination dated November 15, 2005 finding that the Community Development Director acted properly and in full compliance with the Cupertino Municipal Code in issuing the building pennit for the Modification to install a window in the upper bathroom at 20272 Northcove Square. On December I, 2005 the Mr. James Eller, the attorney representing the Critzers and Ms.Chen filed an appeal to that notice of detennination with the City Council. This report and the attached Notice of Detennination respond to the appeal. BACKGROUND In December of 2003 Mr. Jerry Enos, the owner and resident at 20272 Northcove Square requested that the Northpoint Homeowners Association (BOA) approve his request to install a window in the upstairs bathroom of his residence. The HOA, in January of 2004, approved this request which then, in accordance with the Cupertino Municipal Code n<3 Printed on Recycled Paper (CMC), fonned the basis for the issuance of a building pennit by the City to install the window. The window was installed in late February of2004. Mr. Enos has recently sold his home and relocated to Nevada. The new owner is Mr. Darien Tung who has been advised ofthese most recent transactions. By letter on May 17, 2004, Attorney Christian Picone representing the Critzers requested that the City review the issuance of the pennit, alleging that it violated city ordinances and claiming that the window is a "visual privacy intrusion". Efforts were subsequently made at several points throughout the next year by the City to assist in resolving the differences between the parties including a City sponsored mediation through Project Sentinel. This effort culminated in a letter from the Director of Community Development on April 27, 2005 summarizing those efforts and noting that at some point the HOA reportedly offered to pay for the installation of obscure glass in the window and further noting that this was an acceptable solution to the City and, as such would conclude the City's involvement in the matter. At some point thereafter, obscure glass was actually installed in the window. However, on May 10, 2005 the Critzers and Ms. Chen by letter requested a meeting with the City Manager to appeal the Community Development Directors position as stated above from his letter of April 27, 2005. Attempts were made by the City Manager to schedule a hearing on June 6, 2005 and subsequently July 12, 2005. The City then received a letter from James Eller, who apparently was now the attorney representing the appellants. (Mr. Picone had earlier advised the City that he no longer represented the Critzers.) Mr. Eller requested another postponement, which was then set for July 19, 2005. It was at this point that the City learned of the case pending in Superior Court on the same issue and dismissed the hearing. As noted above following Council direction on the Critzer's appeal of this dismissal, the hearing was held on October 25, 2005 with the Director of Public Works acting as the hearing officer designated by the City Manager. The Notice ofDetennination by the City Manager dated November 15,2005 denying the Appeal is attached. APPEAL OF CITY MANAGERs DETERMINATION TO COUNCIL On December 1,2005 attorney James Eller representing the Critzers and Ms. Chen filed an appeal to the City Manager's detennination of November 15, 2005. The appeal is to the City Council and the appeal hearing is scheduled for January 17, 2006. In reviewing the appeal letter from Mr. Eller, while detailed and replete with legal citations and references along with a chronology of events, it does not in any material way 17-'-( present any new relevant fact or compelling argument to support the appeal. The report can be summarized into three basic components as follows: "..City Manager Mischaracterizes the Proper Standard for Modifications" "..City Cannot Permit This Violation oflts Ordinance to Stand" The Notice ofDetennination clearly and correctly cites the applicable provisions of the Cupertino Municipal Code (CMC) which governed the decisions of the Community Development Director in that "The proper procedure for applications for a modification pennit for a property in the RlC zone is found in CMC Sections 19.44.080A and 19.44.080B which specifically provides that the applicant, along with other required submittals shall also include a letter of approval from the appropriate Homeowners Association." This procedure was followed and the appellant's argument to the contrary, and notwithstanding their references to various sections of the code, simply has no merit. As such, there has been no violation of any ordinance on this matter so the second claim regarding a violation is not relevant or applicable. "..City Cannot Allow the Appellants Due Process Rights to Be Violated" This entire claim is directed at the Home Owners Association in their alleged failure to notify the Critzers of the proposed changes. The Notice of Detennination references this point in noting that". . . there is no legal requirement for the City to notice any party or property beyond the pennit applicant when the pennit is issued. Whatever noticing may or may not be done by the HOA is strictly within the purview of the HOA and the City has no jurisdiction or responsibility for the HOA's process beyond compliance with applicable law." It further notes that "..whatever dispute remains following this finding and detennination, is strictly a civil matter by and between the private parties involved and no further action is required or necessary by the City of Cupertino." This is clearly stated in the detennination and the appellants offer nothing further to support their position except demanding that the City take jurisdiction over the HOA' s procedures and policies. It is not, as the appellant suggests, a matter ofthe City ".wash(ing) its hands of any defects in the HOA's process." Whatever failing the appellants believe occurred in the HOA transactions is a matter solely between the property owners and their Association. CONCLUSION The detennination by the Director of Public Works was carefully considered and, in evaluating of all the facts and representations of the various parties it concluded that the Community Development Director's Decision to issue the building pennit for the modification to install the window was found to be fully compliant with the existing provisions ofthe Cupertino Municipal code, and as result the Appeal was Denied. (/~Ç The appeal, as noted variously above, does not provide any new relevant fact, evidence or other compelling basis to alter the Detennination of the City Manager of November 15, 2005. Therefore staff recommends that the Council uphold the Detennination by the Director of Public Works on behalf of the City Manager and deny the appeal ofthe detennination by David and Margaret Critzer and Jowei Chen. STAFF RECOMMENDATION It is recommended that the City Council deny the Appeal by David and Margaret Critzer and Jowei Chen of the Detennination by the City Manager that that the Community Development Director acted properly and in full compliance the Cupertino Municipal Code in issuing the building pennit for the Modification to install a window in the upper bathroom at 20272 Northcove Square. Submitted by: Approved for Submission: :::-~~ lÄa UV Director of Public Works SbL David W. Knapp City Manager Il~~ ELLER & ASSOCIATES ATTORNEYS AT LAW 60 SOUTH MARKET STREET, SUITE 1201 SAN JOSE, CALIFORNIA 95113-2351 TELEPHONE: (408) 299-0180 FACSIMILE: (408) 271-0754 jelleresq@aoLcom November 30, 2005 Cupertino City Council City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Re: Appellants: David and Margaret Critzer and Jowei Chen Installation of window at 20272 Northcove Square Appeal of City Manager's denial of appeal Dear Members of the Cupertino City Council: This letter is submitted to you on behalf of the Appellants, David and Margaret Critzer and Jowei Chen ("Appellants"), in support of their appeal of the City Manager's detennination to deny their appeal of the Community Development Director's decision to take no further action on the Appellants' claims with regard to the installation of a second story master bathroom window (the "Window") at 20272 Northcove Square (the "Subject Property") in February 2004, pursuant to a building permit that was issued by the City of Cupertino (the "City"). Appellants have taken this action because, as currently installed, the Window affords direct, unobstructed views from the Subject Property into their homes located at 20282 Northcove Square (the "Critzer Home") and 20292 Northcove Square (the "Chen Home"), contrary to Sections 19.44.060 and 19.44.080 of the Cupertino Municipal Code (the "Code"), prohibiting structural alterations that create visual intrusions into private areas in cluster zones. By this appeal, the Appellants ask that the City Council direct City staff to revoke or amend the building pennit that was issued for the construction of the Window in order to require that the Window either be removed or modified to completely and pennanently eliminate any view from the Window into the Appellants' homes, as mandated by the Code sections cited above. The grounds for this appeal are as follows: (1) The City Manager's ruling is in error because it mischaracterizes the proper standard that must be applied by the City in its consideration of applications for the modification of structures located in the City's RlC zone; (2) the City cannot allow such a violation of its ordinances to stand; and (3) the City must not countenance the use of its permitting procedures to violate the due process rights of Appellants. n~7 Cupertino City Council City of Cupertino November 30, 2005 Page 2 A. Statement of Relevant Facts Northpoint Homeowners Association (the "HOA") is a California nonprofit mutual benefit corporation that owns the common areas of that certain common interest development in Cupertino known as Northpoint ("Northpoint"). The HOA oversees management and control of the townhouses, condominiums and common areas within Northpoint through its board of directors, subject to and governed by the City's zoning ordinances and the HOA's covenants, conditions and restrictions ("CC&Rs") and bylaws; relevant provisions of these governing instruments are set out below. Northpoint is zoned (P) RIC, which is a residential single-family cluster zone subject to Chapter 19.44 of the Code, which governs the development and modification of such planned communities. Section 19.44.060.F.2, relating to site development regulations in the residential cluster zone, provides that "[t]he relationship between adjoining units shall be designed in such a manner so as to preclude visual intrusion into private outdoor yards or interior spaces." (Emphasis added.) Section 19.44.080.F, relating to changes that are made after a residential cluster zone is granted, states that "[n]o building, structure or land shall be hereafter erected, structurally altered or enlarged in a residential cluster zone, otherwise than in confonnance" with all of the provisions of Chapter 19.44 (emphasis added). Section 5.01 of the CC&Rs mandates that no structures may be built or altered in N orthpoint until an application for construction or alteration has been submitted to the HOA's board for approval. Section 5.02 of the CC&Rs allows the HOA's board to assign the review of such applications to an architectural committee, and Section 8.01 of the bylaws requires the board to appoint such a committee. Section 5.06 of the CC&Rs states that the HOA's board may prescribe standards, specifications or conditions for the construction or alteration of structures in Northpoint. Section 10.01 of the CC&Rs provides that the HOA, the City, and any owner of property at Northpoint shall have the right to enforce all of the provisions of the CC&Rs and any rule or regulation adopted thereunder. Section 11.01 of the CC&Rs states that the HOA and any property owner in Northpoint has the right to enforce all restrictions, conditions, covenants, reservations, liens and charges imposed by the City. Section 5.01 of the bylaws states that regular board meetings shall be held monthly without notice. Copies of the above CC&Rs and bylaws are attached hereto as Exhibit "A" and Exhibit "B", respectively. Appellants own and reside in homes located at 20282 (Critzer) and 20292 (Chen) Northcove Square in Northpoint. On or about December 22, 2003, Jerry Enos ("Enos"), who then owned and resided at the Subject Property, a home adjacent to the Appellants' in Northpoint, submitted an application to the HOA's board for permission to install the Window in his home. That application stated that Enos would install one vinyl window in his master bathroom on the upstairs outer wall facing the rear fence of another home- Il~¡ Cupertino City Council City of Cupertino November 30, 2005 Page 3 in other words, facing the Critzer Home and the Chen Home. At that time, the master bedroom of Enos's home had a solid wall facing the Critzer Home and the Chen Home. The architectural review committee and board of the HOA then took up Enos's application at one of their regular meetings, and Enos's application was approved on or about January 20,2004. Prior to that time, neither of the Appellants ever received any notice from either Enos or the HOA regarding Enos's application or the meeting at which Enos's application would be considered. Some time after January 20, 2004, Enos filed an application with the City for a building permit to install the Window, and the City later approved that application and issued the pennit in reliance on the HOA's prior approval of Enos's application. The Appellants did not learn until February 24,2004, that changes to the Subject Property had been considered or approved by the City or the HOA, when they saw the Window being installed in the Subject Property on that date. Due to grade differences in Northpoint, the second story of the Subject Property affords a direct view into the first floor ofthe Critzer Home; the Window has a direct view all the way through the Critzers' living room clear to the interior wall on the farthest side of their living area from the Subject Property. The Window also has a view into the Chen Home. Due to the location of the Window, Appellants have been forced to choose between protecting their privacy against visual intrusion resulting from the Window by keeping their blinds and shades closed, or being able to enjoy natural light, fresh air, and a view of their yard and common area landscaping in their homes. Immediately on learning of the window's installation, the Appellants challenged the HOA's approval of Enos's application and the City's issuance of its building permit with representatives of both the HOA and the City. After several months of discussions, Ciddy Wordell, a City Planner, wrote a letter to the HOA on November 10, 2004, asking the HOA to contact the City in order to determine the best course of action to address the situation, as the City had consulted with the HOA prior to approving the building permit for the Window, and relied upon the HOA to consult with and represent the interests of all affected property owners, and as Ms. Wordell had since determined that the Window created privacy issues for Appellants. This letter resulted in a mediation between the Appellants and the HOA conducted by Project Sentinel in January 2005; Enos did not participate in the mediation, and later sold the Subject Property to Darien Tung ("Tung") in July 2005. In their mediation, the Appellants and the HOA reached an agreement, subject to Mr. Enos's acceptance, to install at the Subject Property in the Window's place an obscure glass "awning" window (a window hinged at the top that swings out at a limited angle to open only a small space at the bottom for ventilation, blocking the view). Mr. Enos ultimately would not agree to the solution proposed in mediation, and the HOA would not agree to the solution then proposed by Appellants, to increase the height of the fence between their homes and the Subject Property to block the view from the Window. The HOA later proposed to pay to install obscure glass in the Window, but Appellants rejected this idea as it would not block the view from the Window if it were opened. /I-~ Cupertino City Council City of Cupertino November 30, 2005 Page 4 On April 27, 2005, Steve Piasecki, Director of Community Development, wrote to David Critzer to advise him that the City would take no further action with regard to the Window on the ground that he believed that an acceptable compromise had been proposed by the HOA because the HOA offered to pay for the installation of obscure glass in the Window. The Director of Community Development further stated that, if David Critzer disagreed with the City's position, he had the right to appeal the decision to the City Manager within ten business days. As the Appellants' view is that installation of obscure glass in the Window will not protect their privacy as long as the Window can be opened, the Appellants filed an appeal with the City Manager. The City Manager dismissed this appeal without a hearing on July 13,2005, however, based on the belief that the Critzers' pending civil lawsuit against the HOA rendered that proceeding moot. The Appellants then appealed the City Manager's dismissal to the City Council, asking that the City Council either revoke the building permit and require the removal of the Window or refer the matter back to the City Manager for a hearing; a copy of this law firm's appeal letter to the City Council dated July 27,2005, setting forth the Appellants' position with regard to the City Manager's dismissal of their appeal and summarizing the underlying facts of this dispute, including copies of Appellants' appeal letter to the City Manager and copies ofCiddy Wordell's and Steve Piasecki's correspondence referred to above, is attached hereto as Exhibit "C". After a hearing held on September 6, 2005, the City Council remanded the matter to the City Manager for a hearing on the merits, which was held October 25, 2005 before the Director of Public Works, acting as the City Manager's designated hearing officer. On November 15,2005, the Director of Public Works issued the City Manager's Notice of Detennination, denying the Appellants' appeal based on a finding that the Community Development Director acted properly and in full compliance with the Code in issuing the building pennit for the Window, on the ground that Section 19.44.060 of the Code relied upon by Appellants relates only to design and planning issues, not modifications, and that modifications are governed by Sections 19.44.080.A and 19.44.080B. The City Manager also found that the City had no obligation to give notice to affected homeowners and that the City had "no jurisdiction or authority for the HOA's process beyond compliance with applicable law." Finally, the City Manager found that the installation of the Window did not rise to the level of a nuisance as it was a "minor change" installed "in compliance with existing regulations and procedures." This appeal follows. B. The City Manager Mischaracterizes the Proper Standard for Modifications The City Manager ruled that "the Community Development Director acted properly and in full compliance [with] the Cupertino Municipal Code in issuing the building permit" to install the Window. The City Manager justified his ruling as follows: The basis for this finding is that CMC section 1944.060 cited by the Appellants relates to the process followed in the initial design and planning n .-10 Cupertino City Council City of Cupertino November 30, 2005 Page 5 reviews of a project and not to modifications. The proper procedure for applications for a modification permit for a property in the RIC zone is found in CMC Sections 19.44.080A and 19.44.080B which specifically provides that the applicant, along with other required submittals shall also include a letter of approval from the appropriate Homeowners Association. The City Manager's basis for his finding, however, is in error. First, Sections 19.44.080A and 19.44.080.B of the Code do not govern applications for a modification pennit for a property in an RIC zone; rather, they address changes to the development plan or the covenants in place with regard to such a project. Those sections read as follows: A. In the event that the applicant shall desire to make any change, alteration or amendment in the approved Development Plan or covenants after a cluster zone has been granted by the City Council, a written request and revised development plan shall be submitted to the Building Department. Along with the plans, a letter of approval from the appropriate homeowners association or architectural board shall be submitted. [Emphasis added.] B. If the number of dwelling units is not increased, and the City Planner makes a finding that the changes are minor and do not affect the general appearance of the area or the interests of owners of property within or adjoining the development area, the building pennit will be issued. If the homeowners association fails to act, the Planning Director may make a detennination of significance. The Planning Director may issue a building pennit or require that the applicant receive architectural and site approval. If the homeowners association issues a statement opposing the proposed modifications, the property owner must submit for architectural and site review. Building permits will not be issued until City Council approves the request. Those provisions deal with changes to the design of a project, not to modifications of individual units, and so are thus inapplicable to the type of modification in question in the instant situation, contrary to the City Manager's view. Second, the City Manager is in error in stating that the Appellants rely solely on Section 19.44.060 of the Code for their position that the City must correct its erroneous approval of the installation of the Window. As clearly stated in their appeal letter (p. 2, Section 2(b», the Appellants also rely on Section 19.44.080.F of the Code, which is a portion of the section entitled "Changes After Granting of a Cluster Zone," and which provides as follows: F. No building, structure or land shall be used, and no building or structure shall be hereafter erected, structurally altered or enlarged in a residential cluster zone, otherwise than in conformance with the following It -- ¡ I Cupertino City Council City of Cupertino November 30, 2005 Page 6 provisions, except that uses, buildings and structures lawfully in existence at the time the ordinance codified in this title takes effect may remain as long as no alterations take place (except those alterations pennitted by Chapter 19.112) [relating to nonconfonning uses]. [Emphasis added.] While it is clear that Section 19.44.060 establishes design standards for the cluster zone, it is equally clear that Section 19.44.080.F establishes that the design standards of Section 19.44.060 are equally applicable to structural alterations. As such, those two sections, taken together, create a standard under the Code for the review and approval of structural alterations that prohibits "visual intrusion into private outdoor yards or interior spaces." This standard should have been taken into account by the HOA and the City in their consideration and review of the application to install the Window, but clearly was not until after the fact, when Ciddy Wordell noted in her letter that the window created "privacy problems" for the Appellants. In view of the foregoing, the City Manager's ruling is in error, and the City Council should overrule that ruling and render a decision in favor of Appellant by requiring the City's Community Development Director to revoke or amend the existing permit in order to require that the Window be either removed or modified so as to completely and pennanently eliminate any view from the Window into the Appellants' homes, as required under Sections 19.44.060 and 19.44.080 ofthe Code. C. The Citv Cannot Permit This Violation ofIts Ordinance to Stand As set forth above, it is Appellants' position that the Window violates applicable Code provisions and should not have been installed, pursuant to Sections 19.44.060 and 19.44.080 of the Code. Furthennore, the CC&Rs and bylaws ofHOA incorporate these standards and are enforceable under those governing documents. Specifically, Section 11.01 ofthe CC&Rs ofHOA provide that that the HOA and any property owner in Northpoint has the right to enforce all restrictions, conditions, covenants, reservations, liens and charges imposed by the City, including the above-referenced Code provisions prohibiting the installation of the Window. In light ofthe fact that the Window's approval and installation violates the Code as well as the CC&Rs and bylaws of the HOA, the Window constitutes a public nuisance under Sections 1.09.030 and 1.09.180 of the Code and Civil Code § 3479. The City, by and through its administrative officers, has a duty to enforce the Code and all applicable laws. See, Taliaferro v. Wampler (1954) 127 Cal. App. 2d 306, 309. As such, the City may require that the Window be removed as a nuisance, even though the City has already issued a permit for its installation. See, o 'Hagen v. Board afZoning Adjustment (1971) 19 Cal. App. 3d 151, 158. As such, the City may, indeed must, require that the Window be either removed or modified so as to completely and permanently eliminate any view from the Window into the Appellants' homes, as requested by Appellants. (l~{ 2 Cupertino City Council City of Cupertino November 30, 2005 Page 7 D. The City Cannot Allow the Appellants' Due Process Rights to Be Violated In support of his denial of the Appellants' appeal, the City Manager stated that "[w]hatever noticing [that] mayor may not be done by the HOA is strictly within the purview of the HOA and the City has no jurisdiction or responsibility for the HOA's process beyond compliance with applicable law." This statement is mistaken for two reasons. First, it is clear that the City relied on the HOA to consult with and represent the interests of all affected property owners in its consideration of the installation of the Window, as stated by Ciddy Wordell; as such, the City should not be able to wash its hands of any defects in the HOA's process. Second, to the extent the City relied on the HOA to review the application for the installation of the Window in an adequate manner, the City is responsible for any rights violations that may have occurred on the HOA's watch. In his letter to the City Manager dated July 7, 2005, counsel for the HOA argues that the Appellants were given proper notice of Enos's application to install the Window; in support ofthis position, he states that the HOA's CC&Rs do not require that individual notice be sent to homeowners when HOA's board considers recommendations from its Architectural Committee, which reviews all homeowners' applications to modify their homes. Because the HOA takes up those recommendations at every "regularly noticed meeting" of the board, the HOA's counsel claims that the Appellants were given notice of Enos's application. These procedures are inadequate in this situation, however, because consideration and approval by the HOA's board of an application for a use such as the Window, which creates a visual intrusion contrary to the provisions of the Code, requires that the HOA's board give all affected homeowners specific notice of such a request. Cohen v. Kite Hill Community Assn. (1983) 142 Cal. App. 3d 642, 652, 654 (approval ofa nonconforming structure by a homeowners association "is analogous to the administrative award of a zoning variance," which requires a public hearing with notice to affected persons, and a decision to approve such a structure "must be 'in keeping with the general plan for the improvement and development ofthe Project,' and of course, must be made in good faith and not arbitrary."). As the Code's prohibition against the modification of structures that would create visual intrusions in the cluster zone are incorporated in the HOA's CC&Rs and Bylaws, these requirements are enforceable as part of those governing instruments; further, these requirements have an independent basis under state law, as described in Cohen, for the protection of property owners' due process rights. As such, to the extent that the HOA's CC&Rs and bylaws fail to provide for this type of notice to be sent to affected homeowners under these circumstances, they violate both the Code and general legal requirements for due process. The City's obligation to enforce the law is not mitigated, vitiated or excused by its reliance on HOA's procedures for considering and granting approval to applications by homeowners to modify their homes, and the City cannot simply permit such a violation to go unchallenged. The City /7-(J Cupertino City Council City of Cupertino November 30, 2005 Page 8 must therefore require that the Window be either removed or modified in order to completely and permanently eliminate any view from the Window into the Appellants' homes. E. Conclusion Boiled down to its essence, the City Manager's decision is that the invasion of the Appellants' privacy caused by the Window is only a minor issue, unworthy of the City's time and effort to bother with. Similarly, the Director of Community Development felt that the HOA's offer to pay to install obscure glass in the Window was enough to protect Appellants' privacy, even though the purpose ofthe obscure glass was easily defeated by simply opening the Window. While the City Manager and the Director of Community Development are entitled to their views, they are not consistent with the clear statement of policy enunciated by the City in its Code and its General Plan, which state that private indoor and outdoor spaces that are free from any visual intrusion must be protected. Based on the foregoing, it is the Appellants' position that the City Council must direct City staff to revoke or amend the existing building pennit issued for construction of the Window in order to require that the Window either be removed or modified so as to completely and permanently eliminate any view from the Window into the Appellants homes. Thank you for your attention to this matter. / ¡ ; "---.--- ~Vê,~ truClY YOø' urs, 7 I / / ., {_-p~ '.. / v .~ JáÌnes J. ¡{¡Ier (ð'r enclosures 14461 17~(l( ., " AMENDED AND RESTATED COVENANTS, CONDmONS AND RESTRICTIONS OF NORTHPOINT HOMEOWNERS ASSOCIATION Table of Contents INTRODUCTION 2 ARTICLE I DEFINITIONS 3 ARTICLE II COMMON AREA 4 ARTICLE III MEMBERSHIP AND VOTING RIGHTS 5 ARTICLE IV COVENANT FOR ASSESSMENTS 6 ARTICLE V ARCmTECTURAL CONTROL 9 ARTICLE VI EXTERIOR MAINTENANCE 10 ARTICLE VII USE RESTRICTIONS 11 ARTICLE VIII ENCROACHMENTS 13 ARTICLE IX DAMAGE OR DESTRUCTION 14 ARTICLE X GENERAL PROVISIONS 15 ARTICLE XI CONDITIONS IMPOSED BY TIIE CITY OF CUPERTINO 17 ARTICLE XII CONFLICTS BETWEEN DOCUMENTS 18 Exhibit A I/~(F 4.09 The lien ofthe ass~ssments provided for herein shall be subordinate to the lien of any first mortgage. The Association may subordinate such lien to a second mortgage if the Board determines that the Owner's equity in the Lot wil~ after such subordination, be not less than 25% of its fair market value. Sale or transfer of any Lot shall not lÚfect the assessment lien. However, the sale of any Lot pursuant to mortg¡¡ge foreclosure or transfer to the mortgage holder in lieu of foreclosure shall extinguish the lien of such assessments as to payments wruch became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof ARTICLE V - ARCHITECTURAL CONTROL 5.01 No building, fence, wall or other structure shall be conunenced, el,"ected or maintained, nor shall any alteration be made therein nor shall any exterior addition be made to any Building Unit, nor shall any air-<;onditioning unit or other appliance be installed in a window opening, nor shall any window be covered on t\1e inside or outside with a material not approved by the Board, nor shall any exterior wall be painted, nor ,any tree planted until an application for approval thereof has been submitted to the Board together with the plans and specifications showing the nature, kind, shape, height, materials, and location of the same, and if a tree, t\1e species thereof, and they have been approved in writing by the Board of Directors of the Asso<;iation as to harmony of external design and lo<;ation.in rel¡¡tion to surrounding structures and topography and as to other lipplicable features. 5.02 TheB,oard may assign to an ArcrutecturalCommittee, to be appointed by the Board, the review of any application filed under Section 5.01 and for the purpose of making a report to the Board. 5.03 ffli decision h~ not been made within thirty (30) dliYs ~er thelipplicati,on is submitted, the app1i<;ants\1a11 be ,entitled to a hearing before the, Board on rus application within sixty (60) days ¡¡fier the lipplicatioI). has been submitted. 5.04 If the BQard, giveupprovaLtoan Owner fo~ thei,n,stallation of a Structure or exterior addition, such as but not limited to, a sunshade or patio cover, the Owner shltll be prorubited from making any additions t\1ereto or changes therein, fi;Qm painting the same, from installing electric lights thereon, and fronrpermittingplant~ or vines to growt\1ereon, withouíprior written approval of the Board aaer submission to the Board of anappli<;ation therefor pursuant to Section 5.01. 5.05 (a) Each Owner who receives Board approval for installation of a structure or exterior addition sh~1 be requiredito ÇQ.nfonn to all of the condiµ.on$ ofapprova1, and to keep and maintain the stru<;tureori exterior addition in gøod e::onåitionand repair at his own expense in accordance with RegJ;llations of the Board then in effect and as may be thereafter adop,ted. 9 {7~f¿' (b) !fan Owner violates the provisions ()fsectiou 5.05(a) or shall fail to maintain the structure in good condition and repair, the Board may, after giving the Owner ten (10) days written notice requiring him so to do, make such repairs as will bring it into good condition and repair at the expense of the Owner. The costs so incurred shall constitute a special assessment upon the Owner's Lot and be enforceable as provided in Article IV. (c) The Association shall have the right to enter into and upon any Lot, upon reasonable prior notice, to correct any violation of Section 5.01 and carry out the work described in Section 5.05(b) and shall also have a non-exclusive easement to the extent required for such work. 5.06 The Board may by Rule or Regulation give general approval to any of the acts or items mentioned in Section 5.0 I' and may prescribesta.hdards and/or specifications therefore and conditions applicable thereto. The doing of any of said acts by an Owrter shall be deemed an acceptance of all cortditions applicable thereto as seHorth in such Rule or Regulation. ARTICLE VI - EXTE.R.IOR MAINTENANCE 6.01 In addition to maintenance of the common area, ,the Associa,tion shall provide maintenance to the exterior of each unit which is subject to assessment hereunder, as follows: paint, repair, replace and care for roofs, gutters, downspouts, exterior building surfaces, and walks. Such exterior maintenance shall not include glass surfaces, doors, garage doors, window and door screens, metal window frames, doorknobs, locks, lightfixttites, patio and balcony covers, concrete patio decks, damage from termites or other wood-destroying organisms or any structure or exterior addition installed or maintained by an Owner pursuant to the provisions of Article V of the CC & R's. Provided, however, it shall include painting of doors and garage doors. Where any condition requiring maintenance or repair is caused by the owner or tenant - the Association shall have no obligationlo provide maintenance or repair. ' [Revised by vote of the Members; recorded January 31, 1987.] 6.02 Each Lot ,shall be subject to a non-exclusive easement in fàvor of the Association to the extent required for the performance by the Association of its obligations to provide exterior maintenance as set forth in Section 6.01. ' 6.03 In the event that the need for maintenance or repair is caused through the willfu1 or negligent act of the Owner, his family, guests, invitees or such acts of his tenants, contract purchasers, their families, guests or invitees, the cost of such maintenance or repairs shall be added to and become a part of the assessment to which such Lot is subject and be enforceable in the same manner as is provided in Article IV. Before making such assessment, written notice of the proposed. assessmentshalLbe given to the Owner,and II reàsonable opportunity to be heard on the matter shall be afforded to him; 10 fl~17 9.08 All property and liability insurance carried by the Association or the owners shall contain a cross liability endorsement and, if possible, waiver of subrogation as to the Association, officers and directors, and any Members, tenants, guests, agents and employees. Where there is damage to, or destruction of more than one unit, repair or reconstruction shall be subject to the coordinating authority of the Association. 9.09 Annual Insurance Disclosure. In accordance with Civil Code Section 1365.9(c), the Association shall, upon issuance or renewal of insurance, but no less than annually, notify the Members as to the amount and type of insurance carried by the Association, and it shall accompany this notmcation with statements to the effect that the Association is or is not insured to the levels specmed by Civil Code Section 1365.9(c), and that if not so insured, Owners may be liable for the entire amountofajudgment, and if the Association is iru¡ured to such levels, then Owners may be individually liable only for their proportional share of assessments levied to pay the amount of any judgment which exceeds the limits of the Association's insurance. ARTICLE X - GENERAL PROVISIONS 10.01 The Association, any Owner, or the City of Cupertino shall have the right to enforce, by a proceeding at law or in 'equity, all restrictions, conditions, covenants, reservations and provisions imposed by this Declaration, and any Rule ot Regulation adopted thereunder. The prevailing party in such proceeding shall be entitled to reasonable attorney's fees, to be fixed by the court. Failure to enforce any such provision shall not be deemed a waiver of the right to do so thereafter. 10.02 Alternative Dispute Resolution (a) ADR Procedure. Unless the applicabltHime' limitation for conunencingtheaction would run within one hundred twenty(120Ydays prior to the filing of a civil action by either the Association or an Owner solely for declaratory relief or injunctive relief; or for declaratory relief or' injunctive tèliefin conjunction with a claim fo1' monetarydàma.ges, other than assessments, not in excess offivetho\lsand dollus ($5,000), related to the enforcement of théAssociation Management DOØ1.lments, the party shall endeavor, as provided herein, to submit their dispute to a fonn of alternative dispute resolution, such as mediation or arbitration. Theform oflfltetnative'dispute resolÌJtionchosen may be binding or nonbinding at the option of the parties. Any party to such a. dispute may initiate this process by servicing on another party to the dispute a Request for Resolution. The RequestforResolution shallinèlude (1) a briefdèscriptiòÌ1 of the dispute between parties, (2) a request fOI''Mternative dispute resolution, and (3) a notice that the party receiving the Request fot Resøtåtion is required to respond thereto within thirty (30) days of receipt or it will be deemed rejected. Service ot''the' Request for Resolution shall be in the- same manner 3$ prescribed for service in a smaJ1 claim action as provided in Section 116.340 of the CaliforniäCode ofCivilJ!rocedures. Parties receMng Request for Resolution shall have thìrty (30) dayHollowil1gservice of the Requestfor Resolution to a.ccept or reject alternative dispute resolution' a:n:d,ifnot accepted within the t.lûrty (30) day period by a 15 (1- ( J" 10.05 This Declarationsh<!1l remain in force for a teon of twenty (20) years from the date this Declaration is recorded, after which tÏn1e it shall be automatically extended for successive periods often (10) years, subject, however, to the power of the Owners to amend. 10.06 Tills Declaration may be amended by the vote or written assent (or a combination thereof) of the owners of not less than sixty percent (60%) of the Lots; provided, however, any amendment which: (a) changes the method of determining the obligations, assessments, dues and other charges which may be levied against an Owner; or (b) authorizes the abandonment, partition, subdivision, encumbrance, sale or transfer of the Common Area other than as provided herein, shall require the written consent of the Owners of at least seventy.five percent (75%) of the Lots. 10.07 An amendment to this Declaration shall become effective upon the recording in the office of the Recorder of Santa Clara County of a certificate signed and acknowledged by the President and Secreta¡;y of the Association CertiMngthat such amendment has been approved by the vote or written consent of the rèquisite percentage of Lot Owners as specified in Section 10.06. 10.08 The Article headings herein are for convenience on1y and they are not intended to be a part of tills Declaration nor do they describe the scope or intent of the particular Article to which they refer. ARTICLE XI . CONDmONS IMPOSED BY THE CITY OF CUPERTINO 11.01 The Association, or any Owner, shall havetherlghtto enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the City of Cupertino. Failure by the Association or by any Owner to enforce any requirement of the City of Cupertino herein contained shall in no event be deemed a waiver of the right to do so thereafter. 11.02 All of the conditions set Jorthin Resolutions No. 928 and 929 of the City of Cupertino are made a part hereof as if recited in full. 11.03 All of Resolution No. 951 of the Planning Commission of the City of Cupertino reconunending the granting ofa Use PerrnittoDitz·Crane is hereby made a part hereof as ifrecited in full. 17 17-- 11 '-tUOL:J..:H¿lj CRITZER INSURANCE PAGE 62/23 AMENDED AND RESTATED BYLAWS OF NORTlll'OINT HOMEOWNERS ASSOCIATION T~ble or Contents ARTICLE I NAME AND LOCATION 1 ARTICLE n DEFINITIONS 1 ARTICLE m MEMBERS MEETINGS 2 ARTICLE IV BOARD OF DIRECTORS 6 ARTICLE V MEETINGS OF DIRECTORS 7 ARTICLE VI POWERS OF DUT.ŒS OF THE BOARD OF DIRECTORS 8 ARTICLE vn OFFICERS 11 ARTICLE vm COMMITTEES 13 ARTICLE IX BOOKS AND RECORDS 13 ARTICLE X ASSESSMENTS 14 ARTICLE XI BUDGETS AND FINANCIAL STATEMENTS 14 ARTICLE xn FISCAL REVIEW 16 ARTICLE xm LJMlTATlON OF RESERVE EXPENDITURES 17 ARTICLE XIV RESERVE STUDY REQUIREMENTS 18 ARTICLE XV OFFICER AND DIRECTOR LIABILITY 18 ARTICLE XVI INSPECTION OF BOOKS AND RECORDS 19 AR.TICLJi: xvn CORPORATE SEAL 20 ARTICLE xvm AMENDMENTS 20 ARTICLE XIX MISCELLANEOUS 20 /1-- 20 Exhibit B "~/~"/¿~~4 18:19 4882531213 CRITZER INSURANCf PAGE 89/23 ARTICLE V MEETINGS OF DIRECTORS 5.01 Regular Meeting. Regular meetings of the Board of Directors shall be held monthly without notke, at such place Md hour as may be fixed rrom time to time by resolution of the Board. Should said meeting faU upon a legal holiday, then that meeting shall be held at the same time on the next day which is not a Friday, Saturday, Sunday or a legal holiday; provided, however, that the Board may specifÿ a .' different day or time. 5.02 Special Meetings. Special meetings of the Board of Directors shall be held when called by the President, Vice President, Secretary or any two Directors of the Association, after not Jess than three (3) days notice to each Director. 5.03 Quorum. A majority of the number of Directors shall constitute a quorum for the transaction of business. Every act or decision done or made by such majority shall be regarded as the ac:t of the Board, except a,s may be otherwise specifically provided in these Bylaws, the Articles ofIncorporation or the Declaration. 5.04 Attendance by Members and Association Manager. (a) With the exception of executive sessions of the Board (see subparagraph (b), below) and any meetings conducted by conference telephone, aU meetings of the Board shall be open to Members of the Association, provided that non-Director Members may only participate in deliberations or discussions of the Board when expressly aùthorlzed bya vote of a majority ofa quorum of the Board. If the Association has retained the services of a Manager, such person may, in the Board's discretion, attend regular and special meeting. (b) The Board may adjourn a meeting and reconvene in executive session to discuss and vote upon litigation, matters that relate to the fOl1l18.tion of cÒntracts with third parties, or personnel matters. The nature of any and all business to be discussed in executive session shall first be announced in open session. Any matters discussed in executive session shall be generally noted in the minutes of the Board of Directors. In any matter relating to the discipline of an Association member, the Board of Directors shall meet in executive session if requested by the Member, and the Member shall be entitled to attend the executive session. Nothing provided herein shall be construed to obligate the Board to first call an open meeting before meeting in executive session with respect to the matters described above. 7 17~2-J 09/08/2004 18:19 4082531213 CRITZER INSURANCE PAGE 15/23 Authorization (e) Tbe Board may, by resolution from time to time, authorize action to be taken by or through an officer or officers. Unless a specific termination is provided for in such resolution, the authorization shall continue in effect until revoked. ARTICLE vm COMMITTEES 8.0] The Board of Directors shaIl appoint an Architectural Committee, as provided in the Declaration, and a Nominatihg Committee as provided in these Bylaws. In addition, the Board of Directors shall appoint other committees as deemed appropriate in carrying out its purpose, No committee, regardless of Board resolution, may: (a) Take any final action On any matter which, under the Non-Profit CorporaJtion Law of California, also requires approval of the Members. (b) Fill vacancies on the Board of Directors or in any committee which has been delegated any authority of the Board. (c) Amend or repeal Bylaws or adopt new Bylaws. (d) Amend or repeal any resolution of the Board of Directors which by its express terms is not so amendable or repealable. (e) Appoint any other committees of the Board of Directors or the members of those committees. (f) Approve any transaction (I) to which the corporation is a party and one or more Directors have a material financial interest; or (2) between the corporation and one or more of its Directors or (3) between the corporation or any person in which one or more of its Directors have a material financial interest. (g) Levy Fines. ARTICLE IX BOOKS AND RECORDS 9.01 The books, records and papers of the Association shall at all times, during reasonable business hours, be subject to inspection by any Member. The Declaration, the AMicles of Incorporation and the By-Laws of the Association shall be available for inspection by any Member at the ' principal office of the Association, where copies may be purchased at reasonable cost. 13 (1- 22- · - ELLER & ASSOCIATES ATTORNEYS AT LAW 60 SOUTH MARKET STREET, SUITE 1201 SAN JOSE, CALIFORNIA 95113-2351 TELEPHONE: (408) 299-0180 FACSIMILE: (408) 271-0754 jelleresq@aol.com July 27, 2005 Cupertino City Council City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Re: Appellants: David and Margaret Critzer Installation of window at 20272 Northcove Square Appeal of City Manager's determination to dismiss appeal Dear Members of the Cupertino City Council: This letter is submitted to you on behalf of the Appellants, David and Margaret Critzer (the "Critzers" or "Appellants"), in support of their appeal of the detennination by the City Manager to dismiss their appeal with respect to the installation of a second story master bathroom window (the "Window") by Jerry Enos ("Enos") at his home at 20272 Northcove Square in February 2004. The Critzers are taking this action because Enos now has a direct, unobstructed view through the Window into the Critzers' living room and backyard located at 20282 Northcove Square, next door to Enos's home, in violation of Sections 19.44.060 and 19.44.080 of the Cupertino Municipal Code (the "Code"). As a preliminary matter, please note that this appeal is submitted with respect to the Director of Community Development's initial decision to take no further action upon the Critzers' claims (the "Director's Decision"), as well as the determination by the City Manager to dismiss the Critzers' appeal of the Director's Decision (the "City Manager's Dismissal").' By this appeal, the Critzers request that the City Council direct City staff to revoke or amend the existing building permit issued for the construction of the Window in order to require that Enos either remove the Window or modify it so as to completely and permanently eliminate any view from the Window into the Critzers' home. In the alternative, the Critzers request that the City Council refer this matter back to the City Manager and direct the City Manager to conduct the hearing that was cancelled when the City Manager made his determination to dismiss the appeal without prejudice to permit 1 The Critzers' appeal is being submitted without the filing fee required for appeals ITom decisions of the Director of Community Development and Planning Commission, in reliance on information given by the City Clerk; a copy of the City Clerk's email advising there would be no appeal fee in this case is attached to the cover sheet: , Theeritzc" p,c,iuu,ly paid an appeal fee with their appeal of the Director's Decision. Exhibit C / l~ 2 J Cupertino City Council City of Cupertino July 27, 2005 Page 2 the Critzers' civil lawsuit to proceed, in order that the parties may have the opportunity to attempt to resolve their issues through the City's administrative review process. I. Factual Background The facts of this dispute are set forth in the Critzers' appeal of the Director's Decision, a copy of which is attached hereto and incorporated herein by reference as Exhibit A. Those facts will not be reiterated in detail here; for ease of reference, a time line of significant events relevant to this appeal is attached hereto and incorporated herein by reference as Exhibit B. 2. Appeal of the Director's Decision With regard to their appeal of the Director's Decision to take no further action upon their claims, the Critzers believe that the City must act to compel Enos to remove or otherwise render opaque and unopenable the Window in order to (a) enforce the applicable provisions of the City's Municipal Code that have been violated by Enos's installation of the Window, and (b) remedy the failure of North point Homeowners Association ("HOA") to employ a legally adequate architectural control process in approving Enos's installation of the Window. The Critzers' position has previously been set forth in detail in Exhibit A, their appeal of the Director of Community Development's decision to take no further action upon their claims. We invite you to review the Critzers' appeal, and shall not repeat in detail in this letter the arguments set forth therein. Rather, we ask that the City Council take note ofthe following: (a) With the installation ofthe Window, Enos's house now has a view directly through the entire depth of the living area of the Critzers' home and into the Critzers' private back yard. (b) The Window violates applicable Code provisions and is not allowed to be installed under either the Code or HOA's CC&Rs. Section 14.44.060 of the Code precludes visual intrusion into private outdoor yards and interior spaces in the RIC zone, where the Critzers' and Enos's homes are located, and Section 19.44.080 of the Code states that no structure may be altered in a manner that would violate the zoning provisions for the RIC zone.2 Pursuant to Section 11.01 ofHOA's CC&Rs, restrictions imposed by the City, including the above-referenced Code provisions, are applicable to 2 In his letter to the City Manager dated July 7, 2005, HOA's counsel states that Chapter 19.44 of the City's Municipal Code does not apply here because that chapter does not relate to planned developments or multi- family residential zones. That statement is in error; City staff has identified the zone where the Critzers' and Enos's homes are located as RIC. r 7- 'kL( Cupertino City Council City of Cupertino July 27,2005 Page 3 the Northpoint development. A copy of the relevant provisions ofHOA's CC&Rs are attached hereto and incorporated by reference as Exhibit C. (c) HOA approved the installation of the Window without giving adequate notice to the Critzers. While counsel for HOA contends in his letter to the City Manager dated July 7, 2005, that the Critzers were afforded proper notice of Enos's application to install the Window, that position is legally defective. HOA's counsel states that HOA's CC&Rs do not require that individual notice be sent to homeowners when HOA's board considers recommendations from its Architectural Committee, which reviews all homeowners' applications to modify their homes. Because HOA takes up those recommendations at every "regularly noticed meeting" of the board,3 HOA's counsel claims that the Critzers were given notice of Enos's application. These procedures are inadequate in this situation, however, because consideration and approval by HOA's board of an application for a nonconforming use such as the Window (see (b), supra) requires that HOA's board provide all affected homeowners with specific notice of such a request. See, Cohen v. Kite Hill Community Assn. (1983) 142 Cal. App. 3d 642, 652, 654 (approval of a nonconfonning structure by a homeowners association "is analogous to the administrative award of a zoning variance," which requires a public hearing with notice to affected persons, and a decision to approve such a structure "must be 'in keeping with the general plan for the improvement and development of the Project,' and of course, must be made in good faith and not arbitrary."). Both HOA's CC&Rs and Bylaws fail to provide for this type of notice to be sent to affected homeowners under these circumstances; copies of relevant provisions of the CC&Rs and Bylaws are attached hereto and incorporated herein by reference as Exhibit C and Exhibit D, respectively. (d) In view of the fact that the Window's approval and installation violates the Code, the Window constitutes a public nuisance under Sections 1.09.030 and 1.09.180 ofthe Code. As such, the City may require that the Window be removed, even though the City has already issued a permit for its installation. See, Q'Hagen v. Board of Zoning Adjustment (1971) 19 Cal. App. 3d 151, 158. (e) The City, by and through its administrative officers, has a duty to enforce the Code. See, Taliaferro v. Wampler (1954) 127 Cal. App. 2d 306, 309. The City's obligation to enforce the Code is thus not mitigated, vitiated or excused by relying on HOA's procedures for considering and approving homeowners' applications to modify their homes. 3 As noted in the Critzers' appeal, the only notice given ofHOA board meetings is a calendar item in the HOA newsletter, which does not include any agenda of Architectural Committee recommendations to be taken up by HOA's board. (7~2...) Cupertino City Council City of Cupertino July 27,2005 Page 4 Based on the foregoing, the Critzers' position is that the City must require Enos to remove the Window or otherwise render the Window fixed and non-transparent in order to eliminate any possible view from the Window into the Critzers' home. 3. Appeal of the Citv Manager's Dismissal With regard to their appeal of the City Manager's determination to dismiss their appeal on the ground that the Critzers have filed a civil suit against Enos and HOA, it is the Critzers' position that this administrative process, rather than the courts, is the most appropriate forum for the resolution of this dispute because ofthe City's unique position to enforce the Code. See 2( e), supra. The Critzers have been attempting in good faith to resolve this dispute through these administrative processes,4 and only filed their civil suit in order to protect their rights.5 At the Critzers' request, the Santa Clara County Superior Court has postponed further action in that lawsuit until after the anticipated date of the hearing of this appeal in order to allow this appeal to proceed to a resolution. In the event the City Council will not act upon the Critzers' appeal, in the alternative, the Critzers ask that this matter be referred back to the City Manager to allow the hearing that had been cancelled to proceed, before the court takes any action with regard to this matter. 4. Conclusion Based on the foregoing, it is the Critzers' position that the City Council must either direct City staff to revoke or amend the existing building pennit issued for the construction ofthe Window in order to require that Enos either remove the Window or modify it so as to completely and permanently eliminate any view from the Window into the Critzers' home, or refer this matter back to the City Manager to conduct a hearing in order that the parties may have the opportunity to attempt to resolve these issues through the City's administrative review process. Thank you for your attention to this matter. 4 Contrary to the claim made by HOA's counsel in his letter of July 7, the Critzers did not breach the Confidentiality Agreement entered into by the parties in connection with the mediation held on January 19, 2005, by making reference to matters discussed during the mediation. Under its terms, the Confidentiality Agreement provides only that the proceedings of the mediation could not be used in civil court; as such, , these matters could in fact be discussed during the City's administrative review process. 5 In his letter of July 7, HOA's counsel claimed that HOA was unaware that the civil suit had been filed until just prior to the date of that letter. This statement is untrue, as HOA had been served with the complaint well before that letter and HOA's counsel had contacted counsel for the Critzers to discuss the lawsuit shortly after the HOA was served. fì-2-1o City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 (408) 777-3223 CUPElQ1NO APPEAL 1. Application No. N/A (Re: Window installation at 20272 Northcove Sq.) 2. Applicant(s) Name: See below (same as Appellants) Phone Number David and Margaret Critzer. bv James J. Eller. Esq. Eller & Associates 60 S. Market Street. Suite 1201 San Jose, CA 95113 (408) 299-0180. fax (408) 271-0754 3. Appellant(s) Name: Address Email ielleresq@aol.com 4. Please check one: . Appeal a decision of Director of Community Development Appeal a decision of Planning Commission 'f. Appeal a decision ofthe City Manager 5. Date of determination of Director or mailing of notice of City decision: Julv 13.2005 6. Basis of appeal: See attached letter from Eller & Associates. Eller & Signature(s) Please complete , inc e appeal fee of$145.00, and return to the attention of the City Clerk, 10300 Torre Avenue, Cupertino, (408) 777-3223. IAppeal fee not applicable per email from Kimberly Smith dated July 19,2005 attached hereto.] 11-27 Yahoo! Mail- dsgonzale6@yaho" com t'age 1 or 1 ~SoOtMAIL Print - Close Window Subject: appeal fee for appeal re 20292 Northcoast Square Date: Tue, 19 Jul 2005 15:50:47 -0700 From: "Kimberly Smith" <Kimberlys@cupertino.org> To: dsgonzale6@yahoo,com Hello Mr. Gonzales, There is no appeal fee in this case. Kimberly Smith Cupertino City Clerk (408) 777-3217 kimberlvs@cupertino,orq > > > > > > > > Hello Mr. Gonzales, > > Here is the appeal form you requested (see attached). > > . « File: Appeal form.doc » > Someone from my office will contact you in the next day or 50 to let you know if there is an appeal fee for appealing the decision of the City Manager. > > > > > > -----Original Message----- From: Kimberly smith Sent: Tuesday, July 19, 2005 3:39 PM To: 'dsaonzale6@vahoo_com' Subject: appeal form re 20292 Northcoast Square Kimberly smith Cupertino City Clerk (408) 777-3217 kimberlvs@cupertino.orq /l- 2-Jr http://us.f518.mail.yahoo.comlymlShowLetter?box=Critzer&Msgld=8588 _ 8696613 _3107... 7/20/2005 City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 (408) 777-3223 CI CUPERJINO APPEAL 1. Awplication No. 2. Applicant(s): 3. reJ t .;20!l%d.- Nor'\hc.ovB c.<-LPeY-hno¡ C!A q6DI 400-Q13- 1\'84 /ìîQ../2.¡~KPME..Œ.bN\ Ple~se check one: ~ Appeal a decision of Director of Community Development o Appeal a decision of Planning Commission Appellant(s): name, address, plwne number, anq[ email 4. 5. Date of determination of Director or mailing of notice of City decision: 1tp~\ \ 27-t1-) , 2COb 6. Basis of appeal: 6e¿ Ai+ít6hLd Signature(s) ----' \i ..---- Please complete form, . elude appeal fee of$145.00, and return to theattention of the City Clerk, ]0300 Torre Avenue, Cupertino, (408) 777-3223. Exhibit A (7-2 { David and Margaret Critzer 20282 Northcove Square Cupertino, CA 95014 Jowei Chen 20292 Northcove Square Cupertino, CA 95014 May 10, 2005 Mr. David Knapp City Manager City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Dear Mr. Knapp, We are writing to request a meeting with you to appeal the decision of Cupertino's Director of Community Development, Mr. Steve Piasecki, in the atta¢hed letter postmarked April 27, 2005 (Attachment A) and received by us on April 28,2005. Mr. Piasecki states in the letter that the City will have no further involvement in the matter of a second story master bathroom window1 installed in a previously windowless, wall of the townhouse neighboring and directly east of our home in the Northpoint townhouse development. The second story window was installed in the townhouse belor1ging to Mr. Jerry Enos at 20272 Northcove Square. The window was installed with no advance notice to us, and is a nuisance that violates Cupertino Municipal Code Title 19. Additionally, Mr. Piasecki states that the Northpoint Homeowners' Associations' offer to pay up to $200 to replace the glass in Mr. Enos' window with obscure glass is "an acceptable compromise". We disagree and that is the reason we contacted the City to begin with. We contacted the City Attorney last September, asking him to investigate the window installation because it violates RIC code (see attached letter from Berliner Cohen dated 9-28-04 - Attachment B). The installed window contains transparent glass, slides open for ventilatiùn, and is installed so that the entire dimensions of the window are at a height directly above the top of our backyard privacy fence. The window is in a direct alignment wi~h our rear living room windows (Mr. Enos himself has stated the window is "dead on"), and affords Mr. Enos a clear view through the entire depth of our previously private living space and backyard from the master bathroom of his residence. Despite Mr. Enos' assertion éarly on that he "cannot see us", shortly after the installation of the window, Mr. Enos returned 1 This is the only master bathroom window in 416 units. 17~ J 0 · Page 2 May 10, 2005 a wave from Margaret Critzer as she was standing in her living room. It is not possible to prevent the visual intrusion with landscaping because the line of sight of the window is directly over our fence gate and there is a concrete walkway under the gate. The Northpoint development is zoned RIC on the Cupertino zoning map. Cupertino Municipal Code section 19.44.060 (Chapter 19.44 - Residential Cluster Zones~ states: "the relationship between adjoining units shall be arranged in such a manner so as to preclude visual intrusion into private outdoor yards or interior spaces." "Private outdoor space shall be provided for each unit..." Section 19.44.080 states: "... no structure shall be hereafter erected, structurally altered or enlargelj in a residential cluster zone, otherwise than in conformance with the following provisions." Additionally, the Cupertino General Plan policies state: "ensure that the site design for a residential project has private indoor and outdoor spaces for each unit..," The window installation violates Cupertino Municipal Code Title 19, and therefore constitutes a nuisance under Cupertino Municipal Code Title 1, Because of 'the impact on our privacy, and the comfortable enjoyment of our property, it also cOlllstitutes a nuisance under California law. Great care was taken in the initial deSiÎgn of the Northpoint development, and extensive common area landscaping was install$d and has been painstakingly maintained in the development for the enjoyment of the rea,idents and to ensure privacy, specifically for the backyards and rear living area windows; the space now impacted by the window was the private space in our home prior to tlhe window installation. The window installation forces us to choose between accessing daylight, fresh air, and a view of our backyard and the common area landscaping, or keeping our blinds closed at all times to prevent Mr. Enos from viewing into our home. The City has an obligation to enforce municipal code and to cause the window to conform and comply with municipal law. ' l7~J( . Page 3 May 10, 2005 The window contains two distinct sections of glass and slides open for ventilation. Even if the panes of glass were replaced with obscure glass, it would not afford us any control over when we have privacy and when we do not, as the window can be ope.ned at any time by Mr. Enos; this concept is clearly expressed in Cupertino's R1 privacy planting ordinance, which states that the only windows exempt from privacy planting a~e: · Obscure, unopenable windows · Windows with fixed louvers · Windows with a sill height of 5 ft. or higher Thus, the City has clearly codified in R1 zoning the standards for second st0ry window installations to realize the goals stated in the privacy protection policies of the General Plan, and has codified that an equivalent protection should apply in R1C dewelopments through code section 19.44.060 (i.e., "precludes visual intrusion...."). (The Merriam- Webster online dictionary defines "preclude" as "to make impossible by necessary consequence: rule out in advance"). A sliding openable window clearly does not "preclude visual intrusion". Mr. Piasecki's position that replacing the glass in the existing window is an '"acceptable compromise" is also inconsistent with my November 15, 2004 telephone cQnversation with Assistant City Attorney Eileen Murray. Ms. Murray stated that the in~ent of the November 10, 2004 (Attachment C) letter from Planner Ciddy Wordell to the Northpoint Homeowners' Association was that if obscure glass were installed, it would be non- openable privacy glass; Ms. Murray stated that she asked Ciddy Wordell about this and had told Ms, Wordell that she would see no point in openable privacy glass being installed. The window was installed with no advance notice to us that the exterior alteration was being considered or had been approved. Although the Northpoint Board of Directors considered and approved the modification at an open meeting of the Board, no notice that consideration of an alteration that would impact our privacy and the oomfortable enjoyment of our home was given to us, and no agenda was posted in advamce of the meeting. Under the Brown Act and other provisions of law, advance notice that a modification to property will be considered at an open meeting is required to be provided to City residents possibly impacted by the proposed modification; an agenda of the meeting is required to be posted in advance. The opportunity to provide inpu~ only after the approval and installation of a modification does not in any way equate to advance notice or to the ability of an impacted resident to give advance input prior to a governing body's consideration of a modification, Shortly after the window was installed, on or about March 9, 2004, Margaret Critzer called the City Building Department and spoke to Sue, who incorrectly told her she could not file a complaint about the window because the City approved it based on the h~32.. · Page 4 May 10, 2005 Homeowners' Association approval. On May 17, attorney Christian Picone sent a letter to Cupertino Code Enforcement and was also incorrectly informed by Gary Chao of the Planning Department that City zoning: and code enforcement do not apply to RIC zones (Attachment D). ' As Mr. Piasecki's letter states, the C~ arranged a Project Sentinel mediation after the issuance of Ciddy Wordell's November 10, 2004 letter. In attendance were representatives of the City and the N:orthpoint Homeowners' Association, us, and each parties' attorneys. The mediator's opinion was that the only meeting notice we received, which was a monthly event calendar stating the time and date of the regular monthly Board rneeting and with no agenda, was completely inadequate notice of the proposed window installation. An agreement was reached that the Northpoint Board would install an awning window containing obscure glass and with a limited opening capalbility in Mr. Enos' unit. Mr. Enos did not attend the mediation, so the advance premise of the mediation was to discuss modifications to restore privacy that would not ¡involve his participation. The Northpoint Board suggested the awning window, in preference to proposals we presented that would not involve Mr. Enos' window, and repre$ented that they firmly believed this was a solution requiring Mr. Enos' participation that h,e would be agreeable to. After the mediation, Mr. Enos refused to accept installation of the awning window, and instead attempted to clandestinely sell his townhouse from an Internet site, not on the multiple listing service and without any "For Sale" signs. Thlis became apparent to Margaret Critzer, while in her living room, as she observed througlh Mr. Enos' bathroom window that potential buyers were touring his property. At no time during the mediation was there any consideration by the intereste4J parties of placing obscure glass into Mr. Enos' existing window. When we learned that Mr. Enos would not accept the limited opening awning window, we proposed to the Northpoint Homeowners' Association that they increase the height of our fence in ordef to restore our privacy, without altering Mr. Enos' window; the Northpoint Homeowners' Association refuses to increase our fence height or to allow us to do so (the Homeowners' Association owns the fence). The City appears to be retreating from its duty to enforce the municipal code, in part because Mr. Enos was issued a building permit by the City for the window. As the building permit states, it does not entitle the holder of the permit to violate municipal code. Therefore, the window installation is not legal even if the builcjing permit was obtained through a valid process. Additionally, Mr. Enos stated on the owner-builder verification he signed to obtain the permit, that he or an immediate member of his family would perform the window installation and that the total installed cost of ttile window would not exceed $200. It is our belief that Mr. Enos actually used a contractor or workers of some sort to perform the installation, as David Critzer witnessed one of íhe workers, who were present for several weeks at Mr. Enos' residence performing an extensive interior remodel, leaning through the opening cut in the exterior wall of Mr. Enos' unit after the wall was opened and before the window was installed into the (Î~ .) 3 · Page 5 May 10, 2005 opening. This was our first indication that the window would be installed. If hß did use a licensed contractor, Mr. Enos was required to provide the contractor's state license number on tf'1e permit application; if the workers were not licensed, the building permit application states that a worker's compensation Certificate of Insurance needed to be on file at the City of Cupertino Building Department. Additionally, it is our belief that the total cost of the window and installation including the opening of the wall, the stucco repairing, and the installation and painting of wood trim on the wall would have exceéded $200. The permit application listed the "occupancy group" as R-3; the Northpoint development is zoned RIC on the Cupertino zoning map. If "occupancy group" determijnes which zoning ordinances apply to the subject property, there may be an error on the application, or in the planner's review of the application. These are issués the City should investigate and resolve to its satisfaction before it withdraws from ~his matter, based partly or entirely on a belief that Mr. Enos has a valid building penmit for the window. Mr. Piasecki stated the City issues building permits relying on the Homeowners' Association to represent the interests of all parties; the Homeowners' Association clearly did not represent the interests of all parties in this case. The Northpoint Homeowners' Association has not responded to Ciddy Wordell's April 11 letter requesting that the Association contact her and inform her how they plan¡ to resolve this matter. Eileen Murray informed me that Northpoint's attorney stated that the Northpoint Board does not want to increase our fence height because declination by the Board of similar requests from members of the Association may be deemed "arbitrary". This is a ludicrous assertion by the Northpoint Board, given the code violation that the Board has approved and the City's requests for property improvements to restore privacy. The City should not accept this as a reasonable response from the Northpoint Board when the Board will not agree to any other acceptable remedy. We believe Cupertino Municipal Code Title 19 and/or Title 1 give the City the authority to require the Homeowners' Association to increase our fence height. Additionally, we believe Mr. Enos may represent a risk to our personal safety; he is certainly not someone we want viewing into our home at times of his choosirng from his master bathroom. See Attachment E. It is incumbent upon the City to perform its duty to enforce municipal code alnd require either the Northpoint Homeowners' Association, Mr. Enos, or both parties, tf.¡ bring the modification into compliance with Cupertino's RIC code and the General Plan policies on privacy, and in a manner that affords us control of our privacy in the previously private indoor and outdoor spaces of our home. The restoration of privacy needs to be accomplished consistent with Cupertino's extensive history of protecting the pnivacy of its residents to afford us equal protection under the municipal code, and consistent with the character of the Northpoint development At a minimum, possible solutions the City could require are installation of a window with unopenable, obscure glass or fixed louvers; a reconstruction of our fence in the manner we proposed to the Northpoint Board; or the limited opening awning window agreed to in mediation. (,-JL{ · Page 6 May 10, 2005 An openable, sliding window does not achieve a result consistent with the zoning ordinance intent or language, and therefore will not bring the window installation into compliance with municipal code. The City should not vacate its duty to consistently enforce code simply because Mr. Enos obtained a building permit for his wil!1dow. The purpose of zoning is to provide predictability concerning the use of neighboring property; to enhance property values and the comfortable enjoyment of property; to minimize nuisances, and to implement community goals as described in the general plan. Those purposes are undermined if the zoning ordinances are not enforced. We look forward to meeting with you to discuss this further. Sincerely, ,dß¡¡~/IIM.,.I/I ,---d~ tt~vid ~~r, ~~~~r~ an~:~i Chen cc: Mr. James J. Eller, Esq. (7~35~ ~ i/zr!ðS ¡;J [C- CUPEIQ1NO April 24, 2005 Mr. David Critzer 20282 Northcove Square Cupertino, California 95014 Dear Mr. Critzer: The City of Cupertino staff issued a building pennit for a window adjacent to; your property (20272 Northcove Square) in the Northpoint residential developmenlt. The pennit was issued based on the letter of approval from the Northpoint HomeQwners Association Design Review Committee. The issuance of a pennit such as this is discretionary on the part of the City and we rely on the Homeowners Association to represent the interests of all the homeowners in approving such projects. After the project was completed we were contacted by you and your neighbot, Jowei Chen, where you expressed your concerns about the privacy impacts of the wlindow. We wrote to the Northpoint Homeowners Association on November 10,2004 and offered to continue to work with all parties to help resolve the privacy concerns, which we did through the mediation services of Project Sentinel. We wrote to the Homeowners Association on April II, 2005, encouraging thtm to arrive at a solution that met everyone's needs to the greatest extent possible. We al$o offered to coordinate additional mediation if that was desired. Although we have had niJ response from the Homeowners Association, we understand that they have offered to f1lay for the installation of obscure glass in the window. We feel this is an acceptable cOflllpromise. Therefore, we will not be involved any further in this matter, since our role h¡¡s been to help coordinate communication between the Homeowners Association and tfu¡¡e property owners. If you are in disagreement with this position, you may appeal my debsion to the City Manager within ten business days. G:planning/miscl20282 Northcove Square Printed on Recycled Paper (rkJfo BERLINER COHEN ATTORNEYS AT LA W sANfORD /t... BBIUlNBR'" ANDRBW L. PABER WILJ...1.AM J. GOINES'" ROBERTW,HUMPHRBYS R.ALPHJ, SWANSON PBOGY L SPJUNGGA Y JOSBPH B. DWORAK SAMUBLL. FARB ALAN-I. PlNNBR FRANK R. UBHAUS LINDA A. CALLON JAMBs P. CASHMAN STBVBN J. CASAD NANCY 1. JOHNSON mOLD A. -ReITON ROBBRTI.. QIORTEK JONATIiAN D. WOLF KATHLBSN K. SIPLB KBV1N F. KELLBY MARK MAKIEWlCZ 1EFJiRBY S. KAUFMAN JOUD HOUSTON A PARTNERSHIP INCLUDING PROPBSSIONAL CORPORATIONS TEN ALMADEN BOULEVARD ELEVENTH FLOOR SAN JOSE, CALIFORNIA 95113-2233 TELEPHONE: (408) 286-5800 FACSIMILEo (408) 998-5388 www.berliner.com PAULA. PELOSI THOMAS P. MURPHjY NADIA Y. HOLOBEI. BalAN 1.. SHBTLBR, MICHAEL VIOI..Al'4:JI CHRISTIAN S. PICONE EILEBN P. KENNEDf( PBTEl!. BAJOREK HARRY A. LOPEZ JOHN p, DOMiNOUE, SETIi J.: COHEN MONICA B. BOROCHOFP CHRlSTINB K LONG DAVIDD:WADB THOMAS B. BBBasOLB UV K. HASS5TI' LAURAPM.A220LO AARON M V A[JiNTI SaANNON N. COGAN CLAIRB LENCIONI JBNN1FBR L. GROSSMAN BrADCb OffIce - Mer=1, CA OF COUNSBL HUGH L. ISOLA STBVBN L. HAU.ORlMSON ERJC WONG NANCY 1.. BRANDT ŒARLBS W, VOLPB "'A Profeujonal CoqJDnWou RBTIIIJID SAMUBLl. COHEN September 28, 2004 Charles Kilian, Esq. City Attorney City of Cupertino 10320 South DeAnzaBlvd. Ste 1D Cupertino, CA 95014 Re: CritzerÆnos Violation of Municipal Code §§19.44.060 and 19.44.080 20272 Northcove Square, Cupertino, CA 95014 Our File No.: 13772-00] Dear Mr. Kilian: Berliner Cohen represents David and Margaret Critzer. My clients ,esideat 20282 Northcove Square, Cupertino, CA 95014. Recently their neighbor, Jerry Enos, whose address is 20272 Northcove Square, Cupertino, CA 95014, instal1ed a clear glass bathroon'1 window in his unit where previously there was just a solid wall. This window constitutes a visual privacy intrusion, i.e. a nuisance. Mr. En08 added the window to his dwelling in violation of Cupertino's single family cluster zones (lIuC). Mr. Enos did not folJowed code sections 19.44.060 and 080 when he obtained a ¡permit for the modification. "The relationship between adjoining units shalJ be designed in sIJ\Ch a manner so as to preclude visual intrusion into...intelior spaces." My c1ients had no notice or input in the decision. My clients have demanded that Mr. Enos remove this window because ,:t violates code. Mr. Enos refuses to remove his window. My clients attempted to seek regress from the NOl1hpoint Homeowner$ Association it was fruitless. My clients next contacted Code Enforcement and unfortunalely tJ1¡¡ey were told to close their ill·apes. Once involved, I contacted Code Enforcement and was politehy informed that ICEP\638959.1 < 092804·1377200 1 17~37 Charles Kilian, Esq. City Attorney September 28, 2004 city zoning and code enforcement did not apply to RIC zones. I disagree as Title 19 clearly applies to the Northpoint buildings. I request that your office look into this matter to determine whether this window violates Cupertino's Ordinance Code and, if so, require that Mr. Enos remove the window. If you have any questions or would like to discuss this matter, please contact me. Very truly yours, BERLINER COHEN ~d CHRISTIAN E. PICONE E-Mail: cep@berliner.com CEP:jk Cc: Clients \CEf'\ß38959.1 092804-13772001 17~3¡ 10300 Tonre Avenue Cupertino, CalifornJ¡.a 95014 Telephone: (408) 777-3308 FAX. (488)1777-3333 COMMUNITY DEVELOPMENT' November 10, 2004 NOlthpoint Homeowners Assocíation 10880 Northpoint Way Cupertino, California 95014 Re: 20272 Northcove Square (property owner Jerry Enos) Dear' Homeowners Association: I had intended to send this letter to you last week. Please excuse me if this is th", second time I have sent it. It has come to our attention that a second story window was installed at the above address. As you are aware, the City consulted with the Northpoint Homeownerm Association prior to approving a building pennit for the window. I visited the area adjacent to the window, and detennined that it creates privacy !problems for property owners west of the window. The city relied on the Homeowners Association to consult with and represent the interests of all affected property owners. We would like to continue to work with the Homeowners Association representatives and the ~operty owner, JeiTY Enos, to detenlline options to improve the privacy situation. Impr~.vements options could include installing obscure glass or louvers that prevent views out nf the window into adjacent properties. Please contact me to determine the best course of action to address this matter. 'The City can help convene a meeting of interested parties, if there is a need for that. You may reach me at 777-3236. Thank you in advance for your cooperation. Yours truly, (!{í¿d.£1 7¿JU2~/ Ciddy Wordell City Planner Cc; Jerry Enos, 20272 Northcove Squan", Cupertino, CA 95014 Eileen Murray, Assistant City Attomey G:planning/misc/Northpoint Homeowners Associ~tion be., ~ D~ ~'\h 2~ Printed on Recycled Paper I ì-- J 1 - ~. .~-~.. ----------- ---~ - - ------- ------- BERLINER COHEN ATTORNEYS AT LAW SANFORD A. BERLINER" ANDREW L.. FABER WILLIAM J. GOINES" ROBERT W. HUMPHREYS RALPH J. SWANSON pEGGY L. SPRINGGAY JOSEPH E. DWORAK SAMUELL. FARB ALAN J. PINNER FRANK R.. UBHAUS LINDA A, CALLON JAMES P. CASHMAN STEVEN J. CASAD NANCY J. JOHNSON JEROLD A. REITON ROBERT \,., CHORTEK JONATHAN D, WOLF KATHLEEN K. SIPLE KEVIN F. KELLEY MARK MAKlEWICZ JEFFREY S, KAUFMAN JOLlE HOUSTON A PARTNER$HIP INCLUDING PROFESSIONAL CORPORATIONS PAUl. A. PELOSI THQMAS P. MURPHY NADIA V. HOlOBER BRIAN L. SHETLER MICHAEL VIOLANTI CHRISTIAN E. PICO"1: EILEEN P. KENNED¥ PETER BAJOREK HARRY A. LOPEZ JOHN F. DOMINGUE SETH J. COHEN MONICA B. BORDCHOFF CHRISTINE H. LONG DAVID D. WADE THOMAS.E. EBERSOLE LlV K. HASSETT AARON M. VALENTI SHANNON N. COGAN JENNIFER L. GROSSMAN TEN ALMADEN BOULEV ARD ELEVENTH FLOOR SAN JOSE, CAUFORNIA 95113-2233 TELEPHONE: (408) 286-5800 FACSIMILE: (408) 998-5388 www,berliner.eom "A ProfesslOllalCorporallon OF COUNSEL HUGH L.. ISOLA STEVEN l. HALLGRIMSON ERIC WONG NANCY L. BRANDT CHARLES W. VOlPE RETIRED SAMUEL J. COHEN Branch Office - Merced, CA May 17, 2004 City of Cupertino Code Enforcement Department Cupertino City Hall 10300 Torre Avenue Cupertino, CA 95014-3202 Re: Critzer/Enos Code Violation at 20272 Northcove Square, Cupertino, CA 95014 Our File No.: 13772-001 Dear Madam or Sir: Berliner Cohen represents David and Margaret Critzer. My clients t,'eside at 20282 Northcove Square, Cupertino, CA 95014. Recently their neighbor, Jerry Enos, whose address is 20272 Northcove Square, Cupertino, CA 95014, installed a clear glass sliding window in his second story bathroom where there previously was no window. This window is low to the floor and faces the Critzers' family room and kitchen. When the Critzers are in their family room or their kitchen they look directly into Mr. Enos' master bathroom. It is my client$' understanding that Mr. Enos obtained a permIt of an undetermined kind from the City of Cupl;:rtmo; however, my clients have not seen a copy of the permit. It is our belief that the location of this window violates Cupertino's code. In addition to causing the Critzers severe emotional distress, the window constitutes a visual privacy intrusion, i.e. a nuisance. Mr. Enos added the window to his dwelOing in violation of Cupertino's multi-family residential ordinances. The code requires that all multi-family residential designs/modifications must consider and minimize visual privacy intrusions. My clients have demanded that Mr. Enos remove th.is window because it violates cod:. It is neither a skylight nor high-seated window located near the ceiling for ventilation purposes" either óf which would prevent my clients from seeing Mr. Enos while he is in the bathroom, or conversely Mr. ICEP\623624.2 051504·13772001 (7 -I.{ Ö ---- - -- ---------------- --------- City of Cupertino Code Enforcement Department May 17, 2004 Enos looking at my clients while he is in his bathroom. The window as it is situll!ted, whether open or shut, presents a full view of the Enos bathroom, and sometimes Mr. Enos himself. The copies of photographs, attached hereto, were taken by my clients from inside their family room windows. Mr. Enos has claimed that he is unable to see the Critzers in their home from the window in his bathroom. To make a point, on one occasion Margaret Criber waived to Mr. Enos while he was in his bathroom and she was in her family room. Mr. $nos had the audacity to return my client's wave, despite his previous assertions that he could not see into my clients' family room. As you can see from the photos, my clients are forced to look in to a window where there should be a significant level of privacy. As Margaret CritzeJ put it, "Mr. Enos decides when I have privacy." This lack of privacy is a nuisance to the Crit2lers and their surrounding neighbors. We respectfully ask that your department determine whether this win<llow violates Cupertino's Ordinance Code and, if so, require that Mr. Enos remove the win<llow. In the alternative, should Mr. Enos feel the need for some kind of window, that the City re!¡uire that the window be replaced with a skylight or ventilation type window that meets code. My clients are very distressed about the present situation and have requestf.!d that I seek immediate legal action. I have infonned them that the proper first step is to contact your department for action, as it is our understanding that the location of this window vidlates code. I would appreciate your immediate review of this matter. If you have any questions or would like to discuss this matter further, please ~ontact me. Very truly yours, BERLINE a ~ CHRISTIAN E. PICONE E-Mail: cep@berlinor.com CEP:jk Enclosure Cc: Clients Jowei Chen ICEP1623624,2 0515D4·13772001 (/~L{ /' - 20272 Northcove Square Window Impact Mr. Enos early on in this situation (before March 9th BOD meeting returns wave to Ms. Critzer. - He can't see us? · March 17th Prior to blinds being installed Ms. Critzer views an at least partially undressed Mr. Enos in his bathroom. · April 24th - The Critzers awake to find that Mr. Enos has posted 2 pictures in his newly installed window, one in each half-width window pane. - One is of a kitten, the other of a man of unknown identity making , a funny expression. By 1 PM Mr. Enos has removed the pictures from the window · -- ~ f; - 20272 Northcove Square Window Impact Memorial Day, 2004, - Mr. Enos intruded onto the Critzers' home twice telling them to leave him and his window alone. At one point, he discussed the "30 degree cone of vision" and ranted that the window was not within the "30 degree cone", but was "DEAD ON". . --..... .....) 1 --c- w - Window 20272 Northcove Square Impact Memorial Day, 2004, - Later that day, within minutes of Ms. Chen turning on her living room lights (after returning home - with friends), Mr. Enos visited her home and began telling her in front of her guests to leave him alone. · Critzers told Mr. Enos to leave immediately. · Mr. Critzer. . system shortly after this Enos returns and taunts Mr. The Critzers called the police. installs a home security Ms. Chen 'n.....~ ,J~=.. Iü \) rcrc;~H. . . - --.J , -=E - 20272 Northcove Square Window Impact the June 14, 2004, return from an evening walk around 7:50 pm to see Mr. Enos on the other side of his open blinds, he in11nediately spun around and dropped his arms as if he was holding a camera or binoculars. Once he had his back to window, he quickly closed the blinds. . Evening - Critzers had a neighbor over when Mr. Enos began viewing into their home as if he was "figuring out" who was in our home. - Once we looked in Mr Enos direction, he quickly , closed the blinds. . ---- --.) 1 ~ 'I 20272 Northcove Square Window- Impact · February 24, 2005 - Mr. Critzer sees Mr. Enos riding a bicycle on the street outside the Critzer's home. Several minutes later, Mr. Critzer drives to his place of business, about 1.5 miles away. As he opens the door to exit his car, Mr. Enos rides his bike swiftly by the trunk of Mr. Critzer's car and continues, without looking back at Mr. Critzer or his car, to the far end of the parking lot. Mr. Critzer stands and watches as Mr. Enos circles his bicycle at the far end of the lot to look back at Mr. d rides out of the parking lot when he sees Mr. Critzer's car, an Critzer looking .at him. - -v \ ~ ()"- 12/22/03 1/20/04 1/04-2/04 2/24/04 3/04-4/04 4/28/04 5/11/04 5/17/04 5/27/04 9/28/04 11/10/04 EXHIBIT B APPEAL OF DAVID AND MARGARET CRITZER TIMELINE OF SIGNIFICANT EVENTS Enos files architectural application with HOA to install the Window; no notice of this filing is mailed to the Critzers. HOA approves Enos's application to install the Window at HOA board meeting; no notice of the consideration of Enos's application at the meeting or its approval is mailed to the Critzers. Enos files building pennit application with City to install the Window, which City approves; no notice of this filing or its approval is mailed to the Critzers. The Critzers first learn of Enos's Window when they see the Window being installed; the Critzers communicate with onsite manager and HOA president to protest installation of the Window. The Critzers attend HOA meetings to ask HOA to remedy this problem, citing violation of privacy and nuisance, and to request that HOA comply with the City's code requirements. Letter from HOA to the Critzers suggesting binding arbitration Letter from the Critzers' counsel to HOA suggesting nonbinding alternative dispute resolution. Letter from the Critzers' counsel to City Attorney to investigate code violations resulting from the Window's installation. Letter from the Critzers' counsel to Enos and HOA requesting non- binding arbitration pursuant to HOA CC&Rs to resolve this dispute. Enos fails to respond to this request. Letter from the Critzers' counsel to City Attorney stating that the Window violates the Code and asking for investigation and Code enforcement. Letter from City Planner Wordell to HOA noting that City consulted with HOA prior to approving Enos's building pennit application and that the Window creates privacy issues, and requesting that the parties work together to achieve a resolution Exhibit B { 7~ '1 7 " 1/05 1/19/05 3/2/05 3/4/05 3/31/05 4/11/05 4/14/05 4/20/05 4/27/05 5/10/05 The Critzers and HOA participate in City-sponsored mediation, which Enos does not attend, and which produces a compromise between the HOA and the Critzers for the installation of an opaque awning window with limited opening capability to replace the Window. The Critzers file a civil lawsuit against HOA and Enos to preserve their rights against those parties; the Critzers do not immediately serve HOA and Enos with the lawsuit, and later advise the court that they are not actively prosecuting this lawsuit pending conclusion of City-sponsored mediation and City's administrative processes. Letter from the Critzers to City Attorney advising of Enos's refusal to comply with the compromise produced by the City-sponsored mediation and intention to sell his property, and pointing out Enos's code violations. Letter from the Critzers to Enos infonning Enos that they were aware of his efforts to sell his property and his refusal to carry out the compromise produced by the City-sponsored mediation, but that they would continue to pursue a resolution with HOA, the City, and any owner of Enos' property. Letter from the Critzers to City Attorney demanding that City enforce its ordinances with regard to Enos and the Window. Letter from City Planner Wordell to HOA encouraging HOA to arrive at a solution to the Critzers' problem and asking for information on what action HOA will take to resolve the matter. Letter from HOA's counsel to the Critzers' counsel and Enos proposing a settlement in which Enos would replace the clear glass of the Window with obscure glass but would continue to allow the Window to be opened, with HOA to bear no more than $200 of the cost, and each party to release the other parties and bear own attorneys' fees. Letter from the Critzers' counsel to HOA's counsel rejecting proposed settlement. Letter from City Director of Community Development Piasecki to the Critzers stating City's view that the installation of obscure glass in the Window is an acceptable compromise and advising of City's decision that City will no longer be involved in the matter (postmark date). Appeal of City Director of Community Development's decision to City Manager Knapp filed by the Critzers. (ì~L(¡ .' 7/7/05 7/13/05 14332 Letter from HOA's counsel to City Manager Knapp setting forth HOA's position in response to appeal filed by the Critzers. Letter from City Director of Public Works Qualls, acting as City Manager Knapp's hearing officer, to the parties notifying them of his detennination that the Critzers' appeal is dismissed without prejudice and canceling the hearing on the Critzers' appeal, based on the Critzers' civil lawsuit against Enos and HOA. n -"{ c¡ , J> . , AMENDED AND RESTATED DECLARATION OF COVENANTS,CONDmONS AND RESTRICTIONS OF NORTHPOINT HOMEOWNERS ASSOCIATION The Declaration of Covenants, Conditions and Restrictions applicable to that certain subdivision of real property known as NORTHPOINT located in the City of Cupertino, County of Santa Clara, as shown on that certain map entitled "Tract/No, 5Q70 Northpo.ÎJ1t" füed for record in the office of the Recorder of the County of Santa Clara on December 29, 1971, in Book 294 of Maps at pages 38to 42 inclusive and as shown on that certain Map entitled "Tract No. 5071 Northpoint Unit No.2", filed for record in the office of the Recorder of Santa Clara County on June 12, 1972, in Book 303 of Maps at pages I, 2, 3, 4 and 5, which Declaration was recorded December 23, 1980, in Book F808, Pages, et.seq., Instrument No. 6935037. The Amended and Restated DeclaratioA was amended by an Amendment to Amended and Restated Declaration of Covenants, Conditions and Restriction of North point recorded January 30, 1984 in Book 1267, Page 351, Instrument No. 7962115, and by a further Amendment, recorded February 17, 1987 in Book K040, Pages 1493"1495, Instrument }fo. 91589.67 and a second Amendment to Amended and Restated Declaration of Covenants, Conditions and Restrictions of North point recorded March 29, 1990 in Book L304, Pages 386-388, Instrument No.. 10470968. Tracts 5070 and 5071 above referred to are hereinafter referred to as "the Property", "the Properties", and as "NORTHPOINT". WHEREAS, Article X, Section 10.05, of the CC&:R's ofNQRTHPOINT provides that they may be amended by an instrument signed by not less than sixty percent (60%) of the Lot Owners, and WHEREAS, The Owners of sixty percent (60%) or mor.e of the Lots in NORTHPOINT deem it to be for the best interests of all interested parties to amend and restate the CC&R's ofNORTHPOINT, NOW, THEREFORE, the CC&R's ofNORTHPOINT are hereby amended and restated to read in full as follows: Declarants declare tha,t the Property shl\l!>pe held, sold, leased, encumbered and conveyed subject to the easements, covenants, conditions and restrictions contained in this Declaration which are imposed as equitable servitude's pursuant to a general plan for the development of the Property and for the purpose of protectipg the val.ue and desirability of the Property. This Declaration shall run with each and eVery lot and parcel ofland cQmprising the Property and shall be binding upon the Owners thereof and each and every successive Owner for the benefit of each and every portion of the Property and the provisions of this Declaration shall inure to the benefit of each and every Owner of a lot or parcel ofland comprising the Property and his or her heirs, successors and assigns. 2 Exhibit C /ì ~ S7) · 4.09 The lien oHhe as~.$.Sments, provided fod!~rein$hall be ,su,~ordin~te to the lien of any first mortg~ge. The Associ~tion may subordinate such lien to a second mortg~ge jfthe Board determines that the Owner's equity in the Lot wil~ after such subordination, be not less than 25% of its f,ai.r market value. Sale or transfer of¡y¡y I,.ot sb.allno.L~eçt the assessment lien. However, the sale of any Lot pursuant to mortg/1.ge fore.closure or tr¡¡,nsfer to the mortgage holder in lieu of foreclosure shall extinguish the lien of such assessments as to payments which became due prior to such's~e Qr tr¡µ¡sfer. No Sa1e or tr~fer shall ¡;eljeye, s].!phl,.ot from liability for any assessments thereafter becoming due or fi:c:}m the lien, thereof. ARTICLE V· AiémiJ¡;ci'uRAL CQNTROL 5.01 No building, fence, wall or other structure shall be commenced,~~ected or maintained, nor shall any alteration be made therein nor shall any exterior addition be made to any Building Unit, nor sÞallany air-conc;!itioni!1gunit or other appliance be installed in a windpw opening, nor shall any windQw be covered on tþeinside or outside with a I!1ate!Ìa1 ..!Jot /1.pproved by the Board, nor shall any exterior wall be painted, npr any tre¡:pl.anted until,an ~pplicatiO!1 for approval thereof has been submitted to the Board together with the plans and specifications showing the nature, kind, shape, height, materia1s, and locatipnpf the same, and if a tree, the species thereof, and they have been ~pproved in writing by the, Board ofpirectors of the Assoç¡~tion as to harmony of externa1 design and location-in, relation to surrq].!nding stl1lctl.¡res and topography and as to other appliçable features. 5.02 The Board ma.y assign-to an A,rçhite¡¡;t¡;¡ra1.Çommittee, to beappqinted by the Board, the review of any appliçation filed µnder Section 5.01 and for the purpose of making a report to the Board. 5.03 If ~ decision has not been made within thirty@()}.Qaysafierthe application is submitted, the appijçantsÞa11 be,entitled to a hearing before th~Board on his application within sixty (60) days aj:ler thnpplication has been submitted. 5.04 IftheBoardgjves approva1to,anOwner fOf; thein.stallation of a stl1lcture or exterior addition, such as but !1ot .limited to, a sunshade or pa.tio cover,the Owner shall be prohibited from making any additions tb.ereto or çhanges therein, from painting the same, ITom installing electriç lights thereon, and ITompermittingplí1,1lts or vines to grow thereon, withputp!Ìor written approval of the Board after submission to the Board of an application therefor pursuant to Section 5.0 I. 5.05 (a) Each Owner who receives Board approval for insta1lation of a structure or exterior addition sb.¡¡JI be required ,to <JQnfofID to all of the CQnditions of approva1, and to keep and maintain the structure Or exterior addition in gøod conditiqn and repair at his own expense in accordance with Regµlations of the Board then in effect and as may be thereafter ~dopted. 9 (ì~ J J 10.05 This,Declarations~~r.øm~·inJ'orce forl!- teffl. oftw~ty (2(}) years fÌ'om the date this Deçlaration is recÐrd~d.aftér whjoh tÎJJ:1e it shall beaytomaticaUy extended for successive periods oftøn(10) years, Sybject, however, to the power of the Owners to amend. 10.06 This Deçlaration may li>e,a,mended by the vote or written assent (or a combination thereof) of the owners of not less thansi<cty percent (60%) of the Lots; provided, however, any amendment which: (a) cha¡:¡g.eS.thefflethodofdeter.mining the obligations, assessments, dyes and other charges which may be levied against an Owner; or (b) authorizes the abandorunent, partition, subdivision, encumbrance, sale or transfer of the COn)1llon Areaotherthan as provided herein, shall require the written consent of the Owners of at leastseventy~five percent (75%) of the Lots. 10.07 An amendment to this Declaration shall become effective upon the reCQrding in the office of the Recorder of Santa Clara County of a certificate signed and acknowledged by the President and SecretaI¡y of the Association certjf}1ngthat suçhamendmenthas been approved by the vote or written consent of the requisite, percentage of Lot Owners as specified in SectiOhlO.06. 10.08 The Article headings herein are for convenience only and they are not intended to be a part of this Declaration nor do they describe the scope or intent of the particular Article to which they refer. ARTICLE XI - CONDITIONS IMPOSED BY THE CITY OF CUPERTINO 11.01 The Association, or any Owner, shall have the, right to enforce, by any proceeding at law or in equity, aU restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the City of Cupertino. Failure by the Association or by any Owner to enforce any requirement of the City of Cupertino herein CQntained shall in no event be deemed a waiver of the right to do so thereafter. 11.02 All of the conditions set.forth in Resolutions No. 928 and 929 of the City of Cupertino are made a part hereof as if recited in full. 11.03 All of Resolution No. 951 of the Planning Commission of the City of Cupertino recommending the granting of a Use Permit to Ditz-Crane is hereby made a part hereof as ifrecited in full. 17 n~s.z ~. -- . --.. -. .--. .. - ,'-" . . .-- .........-..... AMENDED AND RESTATED BYLAWS OF NORTHPOINT HOMEOWNERS ASSOCIATION ARTICLE I NAME AND LOCATION ThenarÍ1e'ofthe corporation is NORTHPOINT HOMEOWNERS ASSOCIATION, hereinafter referred to as the "Association", The principal office of the corporation shall be located in the City of Cupertino, County oiSanta Clara, State ofCalifornía, but meetings of Members and Directors may be held at such places within the State of California, County of Santa CIIlfa, as may be designated by the Board of Directors. ARTICLE n DEFINITIONS 2.01 "Association" shall mean and refer to NORTHPOINT HOMEOWNERS ASSOCIATION, its successors and assigns. 2.02 ·Property" and "Properties" shall mean and refer to that certain real property described in the Amended and Restated Declaration of Covenants, Conditions and Restrictions, and such additions thereto as may hereafter be brought within the jurisdiction of the Association. 2.03 "Cornmon Area" shall mean all real property owned by the Association for the common use and enjoyment of the Owners. 2.04 "Lot" shall mean and refer to any plot ofland shown upon any recorded subdivision map of the Properties with exception of the Common Area. 2.05 "Owner" shall mean and refer to the record owner, whether one or more perso!1lS or entities, of the fee simple title to any Lot which is a part of the Properties, including contra,;t sellers, but excluding those having such interest merely as security for the performance of an obligation. 2,06 "Decll1fant' shall mean the Owners, collectively. 2.07 "Declaration" shall mean and refer to the Amended and Restated Declaration of Covenants , Conditions and Restrictions applicable to the Properties recorded December 23, 1980, in the office of the Recorder, County of Santa Clara, State of California and any additions or amendments thereto hereafter adopted. 2.08 "Member" shaJlmean and refer to those personsentítled to membership as provXied in the Declllfation. The terms "Owner" and "Member" are synonymous. 1 Exhibit D 11- j- J ~ /. <+~O£:;JJ..L~..L~ ~~lIL~~ IN~U~ANCE ~" ( PAGE El9/23 ARTICLE V MEETINGS OF DIRECTORS 5.01 Regular Meeting. Regular meetings of the Board of Directors shall be held monthly without notice, at such place and hour 8$ may be fixed D:om time to time by resolution of the Board. Should said meeting fall upon a legal holiday, then that meeting shaIl be held at the same time on the next day which is not a Friday, Saturday, Sunday or a legal holiday; provided, however, that the Board may specify a " different day or time. 5.02 Special Meetings. SpeciaJ meetings of the Board of Directors shall be held when called by the President, Vice President, Secretary or any two Directors of the Association, after not Jess than three (3) days notice to each Director. 5.03 Quorum. A majority of the number ofDirecto.rs shaJl constitute a quorum for the transaction of business. Every act or decision done or made by such m~ority shall be regarded as the act of the Board, except a,s may be otherwise specifically provided io these Bylaws, the Articles of Incorporation or the Declaration. 5.04 Attendance by Members and Association Manager. (a) With the eKception of eKecutive sessions of the Board (see subparagraph (b), below) and any meetings conducted by conference telephone, all meetings of the Board shaJl be open to Members of the AssOCiation, provided that non-Director Me.mbers may only participate in deliberations or discussions of the Board when expressly authorized bya vote ofa majority of a quorum of the Board. !fthe Association has retained tlIe services of a Manager, such person may, in the Board's discretion. attend tegular and special meeting. (b) The Board may adjourn a meeting and reconvene in executive session to discuss and vote upon litigation, matters that relate to the formation of contracts with third parties, or personnel matters. The nature of any and all business to be discussed in executive session shall first be announced in open session. Any matters discussed in executive session ¡¡haJJ be generally noted in the minutes of the Board of Directors . In any matter relating to the discipline of an Association member, the Board of Directors shaJI meet in executive session if requested by the Member,and the Member shall be entitled to attend the executive session. NothiJ1g provided herein shall be construed to obligate the Board to first call an open meeting before meeting in executive session with respect to the matters described above. 7 ll-~-Y , f, illTE & MacDONALD, LLl ATTORNEYS AT LAW 99 ALMADEN BOULEVARD SUITE 1050 SAN JOSE, CALIFORNIA 95113~160' (408) 346-4000 ROB D. MacDONALD STEVEN M. WHITE JAMES P. HILLMAN FACSIMILE (408) 345-4020 January 10,2006 City Council of Cupertino c/o Grace Schmidt Deputy City Clerk 10300 Torre Avenue Cupertin(), CA 95014 fõ) lE ~ lE ~ \Yl lE fRI Inl JAN 1 1 2006 l1V CUPERTINO CITY CLERK Re: Notice of Appeal Hearing Hearing Date: January 17, 2006 Appellants: David and Margaret Critzer and Jowei Chen Dear Council Members: Please accept this letter in relation to your consideration of the above-referenced Appeal of the Town Manager's decision of November 15,2006. This office is counsel to the Northpoint Homeowners Association. Appellants are members ofthe Association. The subject permit applicant Jerry Enos is a fonner member of the Association. This appeal relates exclusively to the City's issuance of a pennit to Mr. Enos for construction of a window in the master bathroom of his townhome located in the Northpoint common interest development. The Association was not a party to the pennit application, and was not consulted by the City before its issuance. Accordingly, the Association does not encourage the Council to decide the subject appeal in any particular manner. However, for the Council's benefit, please know Mr. Enos did satisfy the Association's requirements to alteration of his townhome, which included procurement of a City building pennit. Of significance to the Association is the reference in the Town Manager's November 15, 2005 detennination to the Homeowners Association best suited to facilitate an end to this dispute. The statement suggests the Association has not been willing to resolve the dispute. That is not the case. The Association has initiated multiple efforts to resolve this matter, including the facilitation of meetings amongst the affected members, attendance at confidential mediations, and the incurrence of costs to obscure glass in the window. Unfortunately, those efforts and expenses have not yielded a conclusion. Indeed, the Association remains a defendant in the Santa Clara County Superior Court, Action No.1-OS CV 034156, initiated by appellants. Moreover, the Association has no authority to reconsider the issuance of a building pennit by the City. (¡.-')J City Council of Cupertino c/o Grace Schmidt Deputy City Clerk Cupertino, CA 95014 January 10, 2006 Page 2 of2 Thank you for your consideration of the foregoing. SMW/nm \\Whiteserver\trade\ WP\Northpoint\Council I-I0-06.doc Yay truly Yï/k )1!t;zi- TEVEN M~ :1IrE {l-- r-t City Hall 10300 Torre Avenue Cupertino, CA 95014-3255 (408) 777-3354 DEPARTMENT OF PUBLIC WORKS CUPEIQ1NO Ralph A. Qualls, Jr., Director Date of Determination: November 15, 2005 David and Margaret Critzer 20282 Northcove Square Cupertino, CA 95014 Jowei Chen 20292 Northcove Square Cupertino, CA 95014 Jerry Enos 2547 Deora Way Henderson NY 89052 Northpoint Homeowners Assn Attn: Celeste Strarr 10880 Northpoint Square Cupertino, CA 95014 Darien Tung 20272 Northcove Square Cupertino, CA 05014 Steven M. White White & MacDonald 99 Almaden Blvd, Ste 1050 San Jose, CA 95113 James Eller Eller and Associates 60 South Market Street San Jose, CA 95113 Subject: Hearing on Appeal by Critzer regarding window installation at 20272 Northcove Square - Notice of Determination This notice refers to the Hearing held at 2:00 PM on October 25, 2005 at the Cupertino City Hall on the above subject which I conducted as the City Manager's designated City Hearing Officer on this matter. The following persons were present: David and Margaret Critzer, Appellants James Eller, Esq. Eller and Associates (Representing the Appellants) Leslie Starr, Northpoint Homeowners Association (BOA) Stephen White, Esq., White and MacDonald (Representing Northpoint HOA) Steve Piasecki, Director of Community Development City of Cupertino Ciddy Wordell, Principal Planner, City of Cupertino Eileen Murry, Esq., Asst. City Attorney, City of Cupertino Carol Shepherd, Admin. Assistant, City of Cupertino Issue of Appeal The Appellants in this matter, Margaret and David Critzer and Jowei Chen are appealing the determination of the Director of Community Development to issue a building pennit under the provisions of Cupertino Municipal Code (CMC) to Jerry Enos for a building Printed on Recycled Paper n-)7 Finally, this installation of the window does not rise to the level of meeting the criteria to be declared a nuisance since it is a minor change and it was installed in compliance with existing regulations and procedures. Since the Director's Determination to issue the building pennit for the modification is found to be fully compliant with existing provisions of the Cupertino Municipal code, the Appeal is Denied. Further, whatever dispute remains following this finding and detennination, is strictly a civil matter by and between the private parties involved and no further action is required or necessary by the City of Cupertino. Please note that my decision may be appealed to the City Council by filing an appeal with the City Clerk of Cupertino within ten business days of the date of this Notice of Determination. Additional Comments Apart and aside from this determination, it is my general conclusion that the City has made a considerable effort over a long period of time, to help resolve the matter by facilitating discussions between the private parties and through a City-sponsored mediation, even though the City would typically have no obligation to do any of these things. In consideration of the discussion at the hearing regarding possible solutions in this dispute that are outside the purview of the City, I am strongly encouraging the private parties, including the Northpoint Homeowners Association, the Appellants and the apparent new owner of the residence, Mr. Darien Tung, to work together to seek a common, timely and equitable solution. The City has suggested this on numerous occasions for an entire year. Finally, it is my opinion and conclusion that the HOA is, irrespective of their stated view to the contrary, best suited to facilitate that effort in order to seek a common end to this dispute. Sincerely, ~~ U "'Us-/.. Ralph A. Qualls, Jr. V Director of Public Works C: David Knapp, City Manager Charles Kilian, City Attorney Steve Piasecki, Director, Community Development n-SX