26 Vallco
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
(408) 777-3308
Fax: (408) 777-3333
ITYOF
CUPEIQ1NO
Community Development
Department
Summary
Agenda Item No.1 b
Agenda Date: February 27, 2006
Applicant:
Property Location:
Mike Rohde (Valko Shopping Center)
10123 N. Wolfe Road
APNs: 316-20-057 & 316-20-064
Application Summary:
1. Conduct the second reading of Ordinance No. 1975: "An Ordinance of the City
Council of the City of Cupertino Rezoning of a 5.19-Acre Parcel From Planned
Development (Regional Shopping) to Planned Development (Regional
Shopping/Residential) at 10123 N. Wolfe Road."
2. Conduct the second reading of Ordinance No. 1976: "An Ordinance of the City
Council of the City of Cupertino Modifying a Development Agreement (l-DA-
90) to Encompass the Development Proposed in U-2005-16, ASA-2005-11, Z-
2005-05, and TR-2005-04 for a 137 Unit, Two- and Three-Story Residential
Condominium Development at 10123 N. Wolfe Road."
RECOMMENDATION
Staff recommends that the City Council:
1. Enact the Second Reading of Ordinance No. 1975 for Z-2005-05; and
2. Continue the Second Reading of Ordinance No. 1976 for DA-2005-01 to the
March 21, 2006 City Council meeting
BACKGROUND:
On February 7, 2006, the City Council continued the second readings of Ordinance No.
1975 (re-zoning of the proposed 5.19 acre Valko condominium site) and Ordinance No.
1976 (modification to the Valko Development Agreement encompassing the proposed
project) due to the lateness of the meeting.
DISCUSSION:
Petition for Reconsideration
On February 13, 2006, the City received a petition for reconsideration (See Exhibit A) of
Ordinance No. 1975 for the re-zoning of the proposed Valko condominium project site.
The petition indicated concerns regarding the condition to keep the wall along the
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Second Readings of Ordinance No. 1975 and 1976
Valko Residential Condominiums
Page 2
western boundary of the property intact without openings, school impacts, and Valko's
claim of the financial viability of the proposed project.
In response, the City Clerk sent a letter to the petitioner, Patty Chi, on February 13,
2006, stating that the petition is premature because the second reading of the ordinance
had not yet occurred (See Exhibit B).
Second Reading
Once the second reading is approved, then the negative declaration, use permit,
architectural and site application, and tree removal permit, as "adjudicatory" decisions,
can be petitioned for reconsideration, which must then be filed within 10 days after the
second reading of Ordinance No. 1975.
Therefore, staff recommends that the City Council enact the second reading of
Ordinance No. 1975 at this time for the re-zoning of this site, but continue the second
reading of the modification to the development agreement until the March 21, 2006 City
Council meeting until such time remedies can be made for the issues and concerns
raised in the petition for reconsideration.
Covenant
Currently, the City Attorney is working with Valko's attorneys to review and edit the
proposed covenant regarding the wall along the western boundary of the site that is
adjacent to the existing single family residential neighborhood to the west.
ENCLOSURES:
Ordinance No. 1975 for Z-2005-05
Ordinance No. 1976 for DA-2005-01
Exhibit A: Petition for Reconsideration received on February 13, 2006
Exhibit B: City Clerk's Letter dated February 13, 2006
Prepared b : Aki Honda, Senior Planner
Approved by:
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David W. Knapp
City Manager
Ste e Piasecki
Director, Community Development
G: \ Planning \ PDREPORT\ cq 2-2005-05, DA-2005-01, Second Reading, Feb 27, 2006.doc
2~.--2
EXHIBIT A
Date: Feb. 10, 2006
To: Gty Council Members of Cupertino
Richard Lowenthal
Kris Wang
Dolly Sandoval
Orrin Mal10ney
Patrick [(wok
rö)[E~[E~W[ErRi
lfll FEB 1 3 2006 l.W
CUPERTINO CITY CLERK
Members of the Gty Council,
We dtizens of Cupertino are filing a petition for reconsideration with the Gty Oerk. We are
petitioning the Council to reconsider its dedsion on January 31, 2006 to approve Orcünance
No. 1975: "An Orctinance of the City Council of the City of Cupertino Rezoning of a 5.19-Acre
Parcel From Planned Development (Regional Shopping) to POOmed Development (Regional
Shopping/Residential) at 10123 N. Wolfe Road." (V allco). Upon receipt of this petition for
reconsideration, we understand that the Gty Oerk shall schedule a reconsideration hearing to
be commenced by the City Council no later than sixty days after the filing of this
document. Mailed notices of the date, time and place of such hearing will be provided to all
interested persons at least ten days prior to the hearing. At the conclusion of the hearing for
reconsideration, the City Council may affirm, reverse, or modify its original decision, and may
adopt additional findings of fact based upon the evidence submitted in any and all dty
hearings concerning the· matter. The time within whicl1 judidalreview must be sought is
governed by 1096.6 of the California Code of Civil Procedure which is 90 days following this
effective date.
The grounds for this petition of reconsideration include the following:
1. An offer of new relevant evidence which, il1 the exercise of reasonable diligence, could not have been
produced at any earlier city hearing:
. Information has come to our attention that a state law exists which reqillres a direct
route between housing and the local schools. This law may invalidate any dedsion
made by the Council to keep the wall intact if housing is built on the Vallco property.
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2. Proof of/acts which demonstrate that the Cin} Council failed to provide a fair 11earing and due
process:
. On Jan. 31, 2006, the Superintendent of the Fremont Union High School District
provided infOffilation whicl1 had not been published before the January 30, 2006
public hearing for public review.
. No new information from the Vallco developers should have been delivered to the
Council except to answer a question from a Council member. If you review tapes of
the meeting. you will note that a dty official, Steve Piasecki, orchestrated a dialog
that enabled the developers to produce far more information than was requested by
direct questions from Council members. We believe this information was critical to
the eventual dedsion and dtizens from the conununity should have been able to
address these representations made during the closed session of the Council.
. The Council requested but never received any infonnation back from the POO111ing
Commission regarding Vallco 's claim that the expenses for the development project
would exceed projected revenues. This claim is the origin of determining whether
the adctitional137 condos should be approved. The Gty Planning Commission has
not performed the due diligence reqmred to validate this claim or the claim that the
project will cost $300M dollars. Consequently, the C0U11cil was not appraised as to
whether the proposed entitlement was needed to make the project finandally viable.
. Evidence requested by the community to review the original CC&R's between the
commU1uty and the original Vallco owners has not been provided. Gtizens who
have requested a copy of the CC&R's have been told that the City is unable to locate
these documents.
3. The council was advised to proceed with their decision in a manner that was not consistent with
CalifiYrnia law.
. The City. Attorney instructed Council members that California law prolubited the
COlli1cil the right to deny a development plan based on scl100l impact. However,
these instructions were not correct and were presented after the public hearing.
Califonua law does not prohibit the Council from eitl1er considering or denying a
petition to re- zone this particular development plan.
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Exhibit B
city Hall
10300 Torre Avenue
Cupertino, CA 95014-3255
Telephone: (408) 777-3223
FAX: (408) 777-3366
OFFICE OF THE CITY CLERK
CITY OF
CUPEIQ1NO
February 13,2006
Ms. Patty Chi
10273 Norwich Avenue
Cupertino, CA 95014
Dear Ms. Chi,
The Petition for Reconsideration of Ordinance No. 1975, received by the City Clerk's Office on February
13, 2006, is being returned to you. It cannot be accepted for filing for the following reasons:
1. Ordinance No. 1975, for which the petition is seeking Council reconsideration, has not been
adopted; therefore, the petition is premature.
The second reading and possible adoption of Ordinance No. 1975 is scheduled for the City
Council meeting of February 27 at 6:30 p.m.
2. Even if the Petition for Reconsideration was timely filed, it is not appropriate since the city's
ordinance section 2.08.096 limits reconsideration to "adjudicatory" decisions. The decision to
adopt or not adopt ordinance 1975 is "legislative" in nature and not "adjudicatory."
Attached to this letter is an additional copy of the written information I provided to you on
February 9, which includes that section of the municipal code.
3. The Council did make some "adjudicatory" decisions which were associated with the Vallco
project. Those decisions were to: (I) Approve a mitigated negative declaration; (2) Approve Use
Permit U-2005-16; (3) Approve Architectural and Site Application ASA-2005-11; and (4)
Approve a tree removal for an attached condominium. If the petitioners wish the council to
reconsider one or more of these items, they must file a Petition for Reconsideration within 10 days
after the second reading of Ordinance 1975.
Sincerely,
~Jmdl
Kimberly Smith
City Clerk
cc: City Council, City Manager, City Attorney
Community Development Director
Vallco General Manager Mike Rohde
7- b -j
Printed an Recycled Paper
Per a conversation with the city attornev on February 9.2006:
If you wish the City Council to change a decision, the procedure used is called a Petition for
Reconsideration. This cannot be used for ordinances, but can be used for special use permits.
In the case of the Vallco condominium project the use permit would be invalid without the
accompanying ordinance, and the ordinance does not go into effect until after the second reading
and adoption.
Because of the unusual timing in this case, the City Attorney has determined that the 10-calendar
day period to request a Petition for Reconsideration will begin once the Council has done the
second reading and adoption.
This second reading and adoption ofthe ordinance is scheduled for February 27. Ifit happens as
scheduled. vou would have until Thursdav. March 9. at 5:30 p.m. to submit vour Request for
Reconsideration in writing.
For details of that process, see municipal code section 2.08.096:
2.08.096 Reconsideration-Sought by Interested Person.
A. Any interested person, prior to seeking judicial review of any adjudicatory decision of
the City Council, shall file a petition for reconsideration with the City Clerk within ten days after
the decision. Failure to file a petition for reconsideration constitutes a waiver of the right to
request reconsideration and the City Council's decision shall be final for all purposes. Upon
timely receipt of a petition for reconsideration, the City Clerk shall schedule a reconsideration
hearing to be commenced by the City Council no later than sixty days after the filing of the
petition. Mailed notices of the date, time and place of such hearing will be provided to all
interested persons at least ten days prior to the hearing. At the conclusion of the hearing for
reconsideration, the City Council may affirm, reverse, or modifÿ its original decision, and may
adopt additional [mdings of fact based upon the evidence submitted in any and all city hearings
concerning the matter.
B. A petition for reconsideration shall specify, in detail, each and every ground for
reconsideration. Failure of a petition to specifÿ any particular ground or grounds for
reconsideration, precludes that particular omitted ground or grounds from being raised or
litigated in a subsequent judicial proceeding.
The grounds for recousideration are limited to the following:
1. An offer of new relevant evidence which, in the exercise of reasonable diligence, could
not have been produced at any earlier city hearing.
2. An offer of relevant evidence which was improperly excluded at any prior city hearing.
3. Proof of facts which demonstrate that the City Council proceeded without, or in excess
of its, jurisdiction.
4. Proof of facts which demonstrate that the City Council failed to provide a fair hearing.
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5. Proof of facts which demonstrate that the City Council abused its discretion by:
a. Not preceding in a manner required by law; and/or
b. Renderihg a decision which was not supported by findings off act; and/or
c. Rendering a decision in which the findings of fact were not supported by the evidence.
(Ord. 1807, § 1, 1999)
2-ú~7
DRAFT
ORDINANCE NO. 1975
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
RE-ZONING OF A 5.19 ACRE PARCEL FROM
PLANNED DEVELOPMENT (REGIONAL SHOPPING) TO
PLANNED DEVELOPMENT (REGIONAL SHOPPING/RESIDENTIAL)
AT 10123 N. WOLFE ROAD (VALLCO)
WHEREAS, an application was received by the City (Application no. Z-2005-05) for the
re-zoning of a property to Planned Development (Regional ShoppinglResidential); and
WHEREAS, the re-zoning is consistent with the City's General Plan land use map,
proposed uses and surrounding uses; and
WHEREAS, upon due notice and after one public hearing the Planning Commission
recommended to the City Council that the rezoning be granted; and
WHEREAS, a map of the subject property is attached hereto as Exhibit A as a proposed
amendment to the Zoning Map of the City of Cupertino.
NOW, THEREFORE, BE IT ORDAINED AS FOLLOWS:
Section 1. That the property described in attached Exhibit A is hereby re-zoned to
Planned Development (Regional Shopping/Residential); and that Exhibit A attached hereto is
made part of the Zoning Map of the City of Cupertino.
Section 2. This ordinance shall take effect and be in force thirty (30) days after its
passage.
INTRODUCED at a regular meeting of the City Council of the City of Cupertino the 30th
day of January, 2006 and ENACTED at a regular meeting of the City Council of the City of
Cupertino the 27th day of February 2006, by the following vote:
Vote
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
APPROVED:
City Clerk
Mayor, City of Cupertino
7- fß .--8
EXHIBIT A
RE-ZONE 5.19 ACRES
FROM: PLANNED DEVELOPMENT (REGIONAL SHOPPING)
TO: PLANNED DEVELOPMENT (REGIONAL SHOPPING/RESIDENTIAL)
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DRAFT
ORDINANCE NO. 1976
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
MODIFYING A DEVELOPMENT AGREEMENT (1-DA-90) TO ENCOMPASS
THE DEVELOPMENT PROPOSED IN U-2005-16, ASA-2005-1I, Z-2005-05 AND
TR-2005-04 FOR A 137 UNIT, TWO- AND THREE- STORY RESIDENTIAL
CONDOMINIUM DEVELOPMENT AT 10123 N. WOLFE ROAD (V ALLCO)
WHEREAS, an application was received by the City (Application No. DA-2005-01) for
the modification of a development agreement (l-DA-90) to encompass the development
proposed in U-2005-16, ASA-2005-11, Z-2005-05, and TR-2005-04 for a 137 unit, two-
and three-story residential condominium development; and
WHEREAS, the modification is consistent with the City's General Plan land use map,
proposed uses and surroundings; and
WHEREAS, the City Council finds that the subject Development Agreement meets the
following requirements:
I. Is consistent with the objectives, policies, general land uses and programs
specified in the General Plan and any applicable specific plan;
2. Is compatible with the uses authorized in, and the regulations prescribed for, the
land use district in which the real property is or will be located;
3. Is in conformity with and will promote public convenience, general welfare and
good land use practice;
4. Is not detrimental to the health, safety and general welfare;
5. Will not adversely affect the orderly development of property or preservation of
property values; and
6. Will promote and encourage the development of the proposed project by
providing a greater degree of requisite certainty.
WHEREAS, upon due notice and after one public hearing the Planning Commission
recommended to the City Council that the amendment be granted; and
NOW, THEREFORE, BE IT ORDAINED AS FOLLOWS:
Section 1. That Section 2.2 Vested Elements, ofthe development agreement described as
1-DA-90, is hereby amended to add a sub-section adding the development proposed in U-
2005-16, ASA-2005-11, Z-2005-05, and TR-2005-04, as vested elements ofthe
development agreement. Said subsection shall read as follows:
Applications U-2005-16, ASA-2005-11, Z-2005-05, and TR-2005-04 for a 137 unit, two-
and three- story residential condominium development as shown on the approved exhibits
for said applications.
J-k -10
Ordinance No. 1976
Page 2
DA-2005-01
January 10, 2006
Section 2. This ordinance shall take effect and be in force thirty (30) days after its
passage.
INTRODUCED at a regular meeting of the City Council of the City of Cupertino the 31 st
day of January 2006 and ENACTED at a regular meeting of the City Council of the City
of Cupertino the 27th day of February 2006, by the following vote:
Vote
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
APPROVED:
City Clerk
Mayor of Cupertino
2
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EXH.BBT
Va co Construction Status
Report as of 2-27-06
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Request for a 5 Month
Construction Schedule
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· Required by Section 10.48.031 of our
Noise Control Ordinance
· Seeks additional construction from 8pm
- 6am weekdays and Saturdays
Requested for:
· Safety Reasons
· Red uction of Construction Period
· Grand Opening Schedule
·
Construction Time ine
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· January 23th - May 31st
· Monday through Saturday
· Bolt, Rack and Welding in daytime
· Steel Construction from 10pm - 6am
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Vallco Noise Construction Permit
Conditions of Approval
A. Project applicants Vallco Fashion Park and their contractor DPR are approved for
extended evening and morning construction hours ITom January 17tlt 2006 through May
31st 2006. The nighttime construction activity shall be conducted in the quietest manner
possible and any illumination shall be directed toward the east away ITom the residential
neighbors located along the west property line.
Project construction began on January 23rd.
B. The applicants shall pay for a noise consultant, selected by the city, to monitor
construction noise throughout the four-and-one-half month construction period. The noise
consultant shall prepare weekly reports identifying the ambient, average and noise levels
exceeded I % of the time throughout the evening construction period. Said measurements
shall be conducted at hourly increments during the first month of extended hour
construction. Said reports shall identify, to the extent possible, the noise generated ITom
the construction and any noise disturbances unrelated to the construction activity that
may be audible along the property line. Noise Consultant reports shall come directly to
the City.
The City contracted with the firm of Charles M. Salter Associates, Inc. and noise
monitoring equipment has been in place since January 23rd. The consultants prepare
weekly reports, which are sent directly to the City.
C. As a general rule, the noise level generated ITom construction activity during the
extended nighttime hours shall not exceed an average of 60 decibels or the current
ambient (whichever is higher), measured at the property line. The City Council may
review the noise and construction activity at any time to ensure compliance with this
condition.
For the period January 23rd to February 25th, readings show that the noise levels were in
compliance with the conditions required by Council, except between the hours of 5-6am
on January 24th.
D. The applicants shall report back to Council in 2 months regarding the status of the
proj eet.
Due to the sensitivity of this project and the goal to update the Council and the public, a
Council presentation has been scheduled on February 27th, approximately one month
after construction commenced.
E, A "hot line" number will be established where residents can contact a real person at
Vallco if problems arise (408-446-3027).
The hot line was established and is in use. Vallco is considering recording calls to
monitor and ensure customer service. In addition, the city staff has periodically called
the hot line and has received polite and informative information.
F. The applicants shall prepare status reports about the Vallco project. Those status
reports shall be posted on the City's website, and at the expense of the developer, be
placed in the local newspapers and mailed monthly to a 1,000 foot radius around Vallco.
Both Vallco and the City are preparing status reports. They have been mailed to all
property owners in a 1,OOO-foot radius and posted on the City Website.
G. Steel construction can only occur during the hours of 10pm - 6am. No steel
construction is permitted on Sundays (6 a.m. Sunday to 10:00 p,m. Monday).
The applicant is complying with the hours above for steel construction. General
construction was occurring between the hours of 6am - 7am for several days and, when
brought to our attention, was stopped.
H. A current light standard be measured, which may not be exceeded.
Applicant is in compliance.
I. The westerly crane can only be operated for a one-month period.
Noted. Operation is only anticipated for two weeks.
J. No trees may be touched without prior approval of the City Council
Applicant is in compliance.
K. The applicants shall deposit a sum of $50,000, to be drawn down in increments of
$5,000 if thère is willful violation of the above conditions. Vallco management will be
given a "cure period" to correct any problems and the penalty will only be applied upon
the recommendation of the consultant and the city's Code Enforcement division.
We have had neighborhood issues (see attached summary of concerns), however Vallco
and DPR Construction have been receptive to mediation measures. Although they are in
compliance with the nighttime permit, all agreed that additional mitigation measures
should take place to alleviate some of the neighbors concerns. As such, the following
will be implemented immediately:
~ Refuse trucks now coming to Vallco at Sam will not arrive on-site until 8am.
This will include debris box pick up from the construction site and mall garbage
pick up. Vallco Security and Code Enforcement will monitor.
~ Leaf Blowers will not be permitted before 8am. Code Enforcement will monitor.
~ Daytime and nighttime security shifts will communicate issues so that there is
continuity in getting back to citizens.
~ DPR Construction, Inc. is double-checking all steel beams to ensure that they are
sized properly before installation. This quality control reduces the amount of
noise associated with fitting the beams together at the construction site.
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