CC 05-31-2022 Searchable PacketCITY OF CUPERTINO
CITY COUNCIL
AGENDA
10350 Torre Avenue, Council Chamber and via Teleconference
Tuesday, May 31, 2022
6:00 PM
Televised Special Meeting
IN-PERSON AND TELECONFERENCE / PUBLIC PARTICIPATION INFORMATION
Members of the public wishing to observe the meeting may do so in one of the following
ways:
1) Attend in person at Cupertino Community Hall, 10350 Torre Avenue.
2) Tune to Comcast Channel 26 and AT&T U-Verse Channel 99 on your TV.
3) The meeting will also be streamed live on and online at www.Cupertino.org/youtube
and www.Cupertino.org/webcast
Members of the public wishing to comment on an item on the agenda may do so in the
following ways:
1) Appear in person at Cupertino Community Hall. Members of the audience who address
the City Council must come to the lectern/microphone, and are requested to complete a
Speaker Card and identify themselves. Completion of Speaker Cards and identifying
yourself is voluntary and not required to attend the meeting or provide comments.
2) E-mail comments by 4:30 p.m. on Tuesday, May 31 to the Council at
citycouncil@cupertino.org. These e-mail comments will also be forwarded to
Councilmembers by the City Clerk’s office before the meeting and posted to the City’s
website after the meeting.
3) E-mail comments during the times for public comment during the meeting to the City
Clerk at cityclerk@cupertino.org. The City Clerk will read the emails into the record, and
display any attachments on the screen, for up to three minutes (subject to the Mayor’s
discretion to shorten time for public comments). Members of the public that wish to share a
document must email cityclerk@cupertino.org prior to speaking.
Members of the public may provide oral public comments pertaining to the agenda during
the teleconference meeting as follows:
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Oral public comments will be accepted during the teleconference meeting. Comments may
be made during the public comment period for each agenda item.
Teleconferencing Instructions
To address the City Council, click on the link below to register in advance and access the
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instructions on how to connect to the meeting. Your email address will not be disclosed to
the public. If you wish to make an oral public comment but do not wish to provide your
name, you may enter “Cupertino Resident” or similar designation.
3. When the Mayor calls for the item on which you wish to speak, click on “raise hand,” or,
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City Council Agenda May 31, 2022
if you are calling in, press *9. Speakers will be notified shortly before they are called to
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4. When called, please limit your remarks to the time allotted and the specific agenda topic.
In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to
attend this teleconference City Council meeting who is visually or hearing impaired or has
any disability that needs special assistance should call the City Clerk's Office at
408-777-3223, at least 6 hours in advance of the Council meeting to arrange for assistance. In
addition, upon request, in advance, by a person with a disability, City Council meeting
agendas and writings distributed for the meeting that are public records will be made
available in the appropriate alternative format.
NOTICE AND CALL FOR A SPECIAL MEETING OF THE CUPERTINO CITY COUNCIL
NOTICE IS HEREBY GIVEN that a special meeting of the Cupertino City Council is hereby
called for Tuesday, May 31, 2022, commencing at 6:00 p.m. in Community Hall Council
Chamber, 10350 Torre Avenue, Cupertino, California 95014 and via teleconference. Said
special meeting shall be for the purpose of conducting business on the subject matters
listed below under the heading, “Special Meeting."
SPECIAL MEETING
ROLL CALL
POSTPONEMENTS AND ORDERS OF THE DAY
REPORTS BY COUNCIL AND STAFF
1.Subject: City Manager Report regarding the Rise (Vallco) development - request for
modification of approved SB 35 project pursuant to Government Code section
65913.4(g)
Recommended Action: Receive the report and public comment
Staff Report
A - Project Description
B - Link to Project Plans
ADJOURNMENT
The City of Cupertino has adopted the provisions of Code of Civil Procedure §1094.6; litigation
challenging a final decision of the City Council must be brought within 90 days after a decision is
announced unless a shorter time is required by State or Federal law.
Prior to seeking judicial review of any adjudicatory (quasi-judicial) decision, interested persons must
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file a petition for reconsideration within ten calendar days of the date the City Clerk mails notice of the
City’s decision. Reconsideration petitions must comply with the requirements of Cupertino Municipal
Code §2.08.096. Contact the City Clerk’s office for more information or go to
http://www.cupertino.org/cityclerk for a reconsideration petition form.
In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to attend this
meeting who is visually or hearing impaired or has any disability that needs special assistance should
call the City Clerk's Office at 408-777-3223, at least 6 hours in advance of the meeting to arrange for
assistance. In addition, upon request, in advance, by a person with a disability, meeting agendas and
writings distributed for the meeting that are public records will be made available in the appropriate
alternative format.
Any writings or documents provided to a majority of the Cupertino City Council after publication of
the packet will be made available for public inspection in the City Clerk’s Office located at City Hall,
10300 Torre Avenue, Cupertino, California 95014, during normal business hours; and in Council
packet archives linked from the agenda/minutes page on the Cupertino web site.
IMPORTANT NOTICE: Please be advised that pursuant to Cupertino Municipal Code section
2.08.100 written communications sent to the Cupertino City Council, Commissioners or City staff
concerning a matter on the agenda are included as supplemental material to the agendized item. These
written communications are accessible to the public through the City’s website and kept in packet
archives. Do not include any personal or private information in written communications to the City
that you do not wish to make public, as written communications are considered public records and will
be made publicly available on the City website.
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CITY OF CUPERTINO
Agenda Item
22-11041 Agenda Date: 5/31/2022
Agenda #: 1.
Subject:City Manager Report regarding the Rise (Vallco) development - request for modification of approved
SB 35 project pursuant to Government Code section 65913.4(g)
Receive the report and public comment
CITY OF CUPERTINO Printed on 5/27/2022Page 1 of 1
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CITY COUNCIL STAFF REPORT
Meeting: May 31, 2022
Subject
City Manager Report regarding the Rise (Vallco) development - request for modification
of approved SB 35 project pursuant to Government Code section 65913.4(g)
Recommended Action
Receive the report
Background
Summary of Modification Request
In March 2018, Sand Hill Property Company applied for approval of a housing
development project pursuant to Senate Bill 35 (SB 35) (codified as amended at
Government Code section 65913.4). SB 35 provides for a streamlined, ministerial local
review process for residential and mixed-use developments that meet certain conditions.
The intent of the legislation is to increase California’s housing supply and to accelerate
the development of projects that include affordable housing.
On September 21, 2018, the City approved the Vallco Town Center SB 35 project pursuant
to the streamlined, ministerial process set forth in the statute . As approved, the project
would consist of 2,402 residential units (half of them affordable), 485,912 square feet of
retail uses, and 1,981,447 square feet of office uses.
On March 24, 2022, the applicant initiated a request for modification of the September
2018 approval under Government Code section 65913(g). The proposed modification
(renamed “the Rise”) proposes increasing the residential square footage of the project
from approximately 4.96 million square feet to approximately 5.12 million square feet;
decreasing the office square footage from approximately 1.98 million square feet to
approximately 1.97 million square feet; and decreasing the retail square footage from
approximately 486,000 square feet to approximately 429,000 square feet. The number of
residential units (2,402) and affordable units (1,201) remains unchanged. The
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modification request proposes changes to vehicular circulation and seeks to eliminate
public access easements over private open space areas within the project. Additionally,
the applicant proposes reducing the project’s total parking from 10,500 spaces to 7,583.
(See Attachments A and B)
The affordable housing component of the proposed modification request is also subject
to new state law adopted by the Legislature in September 2021. The new law (Assembly
Bill 1174) provides that for projects that include 500 or more units of housing and dedicate
at least 50 percent of the total number of units to households making at or below 80
percent of the area median income, the rent for 30 percent of the affordable units shall be
determined based on the standard for low income household established in the Health
and Safety Code, and rent for the remaining 70 percent of affordable units shall be set at
a rent that is consistent with the maximum rent levels for a housing development that
receives an allocation of state or federal low-income housing tax credits from the
California Tax Credit Allocation Committee [“TCAC”].” (Gov. Code, § 65913.4(k)(2).) The
project also remains subject to affordability requirements of State Density Bonus Law and
the City’s Below Market Rate (“BMR”) Housing Program. A comparison of affordability
levels of affordable units in the approved project and proposed modification is set forth
below.
Approved
Project
Proposed
Modification
Allowed Rent
Very Low Income Units
(Density Bonus, BMR &
SB 35)
217
160
Very Low Income Per
Health & Safety Code
§ 50053
Very Low Income Units
(Density Bonus & SB 35)
144
107
Very Low Income Per
Health & Safety Code
§ 50053
Very Low Income Subtotal 361 267
Low Income Units (BMR
and SB 35)
144
107
Low Income Per Health &
Safety Code § 50053
Low Income Units (SB 35)
696
827
Low Income Per TCAC1
Low Income Subtotal 840 934
Total 1,201 1,201
1 Any project receiving TCAC financing may be subject to additional affordability requirements,
including the provision of additional very low income units.
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The applicant will be required to enter into regulatory agreements with the City
documenting the affordability requirements for each of these categories of affordable
units.
Overall, the proposed modification reduces the number of very low income units and
will likely increase average affordable rents due to changes in state law. However, the
applicant has also proposed adding 103 two- or three-bedroom affordable units and
adding 230 additional one-bedroom affordable units that were not included in the
approved project. The addition of larger units and the reduction in the number of studios
is intended to make the project more accessible to low-income families.
Review of the Proposed Modifications
The applicant’s modification request is subject to a limited scope of review under
Government Code section 65913.4(g), if the modification changes the total number of
residential units or total square footage of construction by 15 percent or mo re, not
including underground space. (Gov. Code, § 65913.4(g)(3).) The scope of review of a
qualified modification request under section 65913.4(g) is limited to determining whether
the modified project meets the statutory criteria for SB 35 eligibility an d whether the
project complies with objective planning standards in effect at the time the original
project application was submitted. (Gov. Code, § 65913.4(g)(1)(B).) Staff may not apply
objective planning standards adopted after the March 2018 submittal date of the original
Vallco SB 35 application if these requirements are met.
In addition, the City may not reconsider “prior determinations that are not affected by
the modification” (Gov. Code, § 65913.4(g)(4)) and must use “the same assumptions and
analytical methodology” that it used in approving the original application. (Gov. Code,
§ 65913.4(g)(1)(C).) These provisions mean that the review of a modification must be
limited to the proposed changes to the approved project and does not extend to SB 35
eligibility criteria that are not impacted by those changes, such as the location of the
project.
The modification request also includes a request for modification of the approved
tentative subdivision map for the project. The streamlined approval provisions of SB 35
apply to approval of a tentative subdivision map if “(A) [t]he development has received
or will receive financing or funding by means of a low-income housing tax credit,” or
“(B) [t]he development is subject to the requirement that prevailing wages be paid, and a
skilled and trained workforce used.” (Gov. Code, § 65913.4(a)(9).) A finding of
compliance with prevailing wage requirements was made in connection with the
approval of the original Vallco project and is not affected by the requested modification.
The tentative subdivision map will be reviewed and approved in compliance with the
Subdivision Map Act (Gov. Code, §§ 66410 – 66499.58). Under Government Code section
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65913.4(g), review must be limited to objective subdivision standards that were in place
at the time of the original application.
Under Government Code section 65913.4(g)(2), the City must complete ministerial review
of the proposed modification request within 60 days. The deadline for completing review
of the Vallco/Rise modification request is June 3, 2022. The determination under section
65913.4(g) will be made by the City Manager. This City Manager’s report provides the
City Council and public with information on staff’s evaluation of the modification request
and the opportunity to provide input for the City Manager to consider.
Analysis
Eligibility for Modification Request Under Government Code Section 65913.4(g)
Under Government Code section 65913.4(g)(3), a proposed project modification qualifies
for limited-scope review under 65913.4(g) unless (A) “[t]he development is revised such
that the total number of residential units or total square footage of construction changes
by 15 percent or more, or (B) “[t]he development is revised such that the total number of
residential units or total square footage of construction changes by 5 percent or more and
it is necessary to subject the development to an objective standard beyond those in effect
when the development application was submitted in order to mitigate or avoid a specific,
adverse impact, . . . and there is no feasible alternative method to satisfactorily mitigate
or avoid the adverse impact.” The number of residential units is unchanged in the
modified project, and the proposed modifications increase the total square footage of
construction by approximately 1.3%. Thus, the modified project qualifies for review as a
modification request under Government Code section 65914.4(g).
Eligibility for Streamlined Review Under SB 35
The following is an analysis to determine whether the project continues to meet the
eligibility requirements of Government Code section 65913.4. The eligibility
requirements are listed in the form of questions with responses based on whether this is
applicable to the modification request.
1. Has the Department of Housing and Community Development (“HCD”) determined that
the local agency is subject to SB 35?
Not applicable to the modification request, since there are no modifications proposed
which impact this criterion.
In 2018, when the original application was submitted, HCD had determined that due to
the type and amount of affordable housing generated in the City of Cupertino, the project
was subject to SB 35 streamlining.
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2. Is the project a multifamily housing development (2 or more residential units)?
Not applicable to the modification request, since there are no modifications proposed
which impact this criterion.
The proposed project continues to be a mixed use developmen t with 2,402 residential
units and therefore, qualifies as a multifamily housing development.
3. Has the applicant dedicated the applicable minimum percentage of units in the project to
households making below 80% of the area median income?
Not applicable to the modification request, since there are no modifications proposed
which impact this criterion.
In 2018, HCD had identified the City of Cupertino as a “50% Affordable Housing
jurisdiction” for purposes of SB 35 streamlining and ministerial review. The approved
project and the modification request both include 50% (1,201 units) of the total (2,402
units) as affordable to very low income or low income households earning annual
incomes less than 80% of the area median income.
4. If the site is in a city, is a portion of the city designated by the United States Census Bureau
as either an “urbanized area” or “urban cluster,” or, if the site is in an unincorporated
area, is the parcel entirely within the boundaries of “urbanized area” or “urban cluster”?
Not applicable to the modification request, since there are no modifications proposed
which impact this criterion.
In 2018, the U.S. Census data identifies the City of Cupertino as being a part of the San
Jose urbanized area.
5. Does at least 75% of the perimeter of the site adjoin parcels currently or formerly developed
with “urban uses”?
Not applicable to the modification request, since there are no modifications proposed
which impact this criterion.
California Government Code section 65913.4(h)(8) defines “urban uses” to mean any
current or former residential, commercial, public institutional, transit or transportation
passenger facility, or retail use, or any combination of those uses.
The City determined in 2018 that at least 75% of the perimeter of the proje ct site adjoin
parcels currently or formerly developed with urban uses.
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6. Does the site have either zoning or a general plan designation that allows for residential
use or residential mixed-use development and does the development designate at least two-
thirds of the square footage for residential use?
Residential or Mixed Use Designation
Not applicable to the modification request, since there are no modifications proposed
which impact this criterion.
The 2018 Cupertino General Plan: Community Vision 2015 – 2040 identified the parcels
at the project site as the Vallco Shopping District Special Area which had the following
General Plan land use designation: Commercial/Office/Residential. This land use
designation allows mixed-use developments with commercial, (including retail and hotel
uses), office, and residential uses.
The 2018 zoning of the property was Planned Development with General Commercial
uses (P(CG)) south of Vallco Parkway and Planned Development with Regional
Shopping uses (P(Regional Shopping)) north of Vallco Parkway. While the zoning did
not allow residential uses, the General Plan designation in effect in 2018 allowed for a
mix of uses including residential.
Government Codes section 65913.4(a)(5)(B) provides that in the event an objective zoning
standard (here, the 2018 zoning designation) is mutually inconsistent with an objective
general plan standard (here the 2018 General Plan land use designation), the general plan
designation prevails. The proposed modified project continues to propose a mixed use
development with residential, commercial and office uses. Therefore, the proposed
modification request is consistent with the 2018 General Plan land use designation
allowing a mix of uses, including residential.
Residential Square Footage
Applicable to the modification request, since there are modifications proposed that
change residential and nonresidential square footage.
Government Code section 65913.4(a)(2)(C) requires that projects qualifying for
ministerial approval must show that “at least two-thirds of the square footage of the
development is designated for residential use.” The residential and nonresidential square
footage calculations must be performed using the “same assumptions and analytical
methodology” that were used in the 2018 project approval.
In 2018, the definition of “floor area” in the 2018 Cupertino Municipal Code section
19.08.030(F) was used to determine what percentage of the proposed development is
designated for residential use. The Municipal Code defines “floor area” to mean “the total
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area of all floors of a building measured to the outside surfaces of exterior walls, and
including the following:
1. Halls;
2. Base of stairwells;
3. Base of elevator shafts;
4. Services and mechanical equipment rooms;
5. Interior building area above fifteen feet in height between any floor level and the
ceiling above;
6. Basements with lightwells that do not conform to Section 19.28.070(I);
7. Residential garages;
8. Roofed arcades, plazas, walkways, porches, breezeways, porticos, courts, and
similar features substantially enclosed by exterior walls;
9. Sheds and accessory structures.
"Floor area" shall not include the following:
1. Basements with lightwells that conform to Section 19.28.070(I);
2. Lightwells;
3. Attic areas;
4. Parking facilities, other than residential garages, accessory to a permitted
conditional use and located on the same site;
5. Roofed arcades, plazas, walkways, porches, breezeways, porticos, courts and
similar features not substantially enclosed by exterior walls.”
Cupertino Municipal Code section 19.08.030(A) defines an “attic” to mean “an area
between the ceiling and roof of a structure, which is unconditioned (not heated or cooled)
and uninhabitable.” Therefore, mechanical electrical and other areas between the ceiling
and roof are not included in the calculation of floor area.
Cupertino Municipal Code section 19.08.030(F) defines “first floor” to mean “that portion
of a structure less than or equal to twenty feet in height, through which a vertical line
extending from the highest point of exterior construction to the appropriate adjoining
grade, passes through one story.”
Based on an independent review conducted by the City’s contract plan check consultant,
under the supervision of City Planning and Building staff, t he modification request
complies with the minimum residential square footage requirement of SB 35. The
proposed modification is a mixed-used residential development consistent with General
Plan land use designation and Municipal Code definitions with at least two-thirds of the
area designated for residential use.
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7. Does the project involve a subdivision of land and is the development subject to a
requirement that prevailing wages will be paid and a skilled and trained workforce will be
used?
Not applicable to the modification request, since there are no modifications proposed
which impact this criterion.
The modification requests proposes a tentative map amendment. The applicant, has
certified that the project will be subject to the applicable requirements of California
Government Code section 65914.3(a)(8) related to the payment of the general prevailing
rate of per diem wages for all construction workers and that a skilled and trained
workforce will be used.
8. Is the project outside of each of the following areas? (The full text of the criteria listed below
can be found in section 65913.4(a)(6).)
Not applicable to the modification request, since the proposed modifications do not
impact this criterion and pursuant to Govt Code section 65913.5(g), the City is prohibited
from revisiting these determinations from 2018.
• Coastal zone – The project site is outside a coastal zone. The City of Cupertino’s
General Plan does not identify any portions of the City within a Coastal Zone.
• Prime farmland or farmland of statewide importance – The project site is outside
prime farmland or farmland of statewide importance. The City of Cupertino’s General
Plan does not identify any portions within the City to be prime farmland or farmland
of statewide importance.
• Wetlands as defined under federal law – The project is outside any wetlands as
defined under federal law. There are no wetlands as defined under federal law
identified on the project site.
• High or very high fire hazard severity zones – The project site is outside the high or
very high fire hazard severity zones. The high or very high fire hazard severity zones
are identified in Chapter 16.74 of the Municipal Code.
• Hazardous waste site – The site is not listed as a hazardous waste site pursuant to
Health and Safety Code section 65962.5 or 25356.
• Earthquake fault zones in an official map published by the State Geologist, unless the
development complies with state seismic protection building code standards and by
local building standards – The project site is outside earthquake fault zones and will
comply with applicable state seismic protection building code standards and local
building standards.
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• FEMA designated flood plain or floodway – The project site is outside a FEMA
designated flood plain or floodway.
• Lands designated for conservation in a habitat conservation plan – The project site is
outside lands designated for conservation in a habitat conservation plan.
• Protected species habitat – The project site is outside any protected species habitat.
• Lands under a conservation easement – The project site does not include lands under
a conservation easement.
• Require demolition of (a) housing subject to recorded rent restrictions, (b) housing
subject to rent control, (c) housing occupied by tenants within past 10 years, or (d) an
historic structure placed on a local, state, or federal register – The project site is outside
an area that would involve the demolition of any housing subject to rent restriction,
rent control or occupied by tenants in the past 10 years or an historic structure placed
on a local, state, or federal register. The site has historically been used and operated
as a regional mall. There has never been any housing located on the project site. While
the site is identified as a “Community Landmark” in the City’s General Plan, the site
does not contain an historic structure that was placed on a national, state, or local
historic register as referenced in SB 35.
• Land governed by the Mobilehome Residency law, the Recreational Vehicle Park
Occupancy Law, the Mobilehome Parks Act, or the Special Occupancy Parks Act –
The project site is not located on land governed by the Mobilehome Residency law,
the Recreational Vehicle Park Occupancy Law, the Mobilehome Parks Act, or the
Special Occupancy Parks Act.
9. Has the project proponent certified that either the entire development is a “public work”
for purposes of the prevailing wage law or that the construction workers will be paid at
least the prevailing wage?
Not applicable to the modification request, since there are no modifications proposed
which impact this criterion.
The applicant has affirmed in its project application that all construction workers will be
paid at least the prevailing wage.
10. Has the project proponent certified that “a skilled and trained workforce” will be used to
complete the development, if the requirement is applicable?
Not applicable to the modification request, since there are no modifications proposed
which impact this criterion.
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California Government Code section 65914.3(a)(8)(B)(ii) defines a skilled and trained
workforce for purposes of this section to have “the same meaning as provided in Chapter
2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code.”
The applicant has affirmed in the project application that it will use skilled and trained
workforce to complete the development.
Compliance with Objective Standards
Density
Not applicable to the modification request, since there are no modifications proposed
which impact this criterion.
The project meets the maximum allowable General Plan density for the site. The project
is located on 50.822 acres, prior to dedication of required right -of-way to accommodate
frontage improvements. In 2018, the City determined that the base maximum residential
yield would be 1,779 units. With a 35% density bonus (as the Density Bonus provisions
stood at the time the project application was made), the maximum residential yield is
2,402 units.
Objective Zoning Standards
Applicable to the modification request, since there are modifications proposed which
may impact this criterion.
The General Plan related to the Vallco Shopping Center Special Area in effect in 2018 (see
Attachment B) contemplated the preparation of a specific plan for the project site. The
specific plan was expected to include zoning standards. The draft specific plan was being
prepared and was not adopted as of the date the original project application was
submitted to the City in March 2018.2 Only objective planning standards in effect at the
time that the original application was submitted to the City can be applied to the project
or to the modification request. (Gov. Code, §§ 65913.4(a)(5), 65913.4(g)). As a result, there
was no specific plan or associated zoning standards, applicable to the project application.
As determined in 2018, there are no height limits applicable to the original or modified
project. However, the Community Form Diagram (Figure LU-2) in the Land Use Element
of the 2018 General Plan identifies building planes the project must meet. Figure LU-2
states as a foot note: “Maintain the primary building bulk below a 1:1 slope line drawn
from the arterial/boulevard curb line or lines except for the Crossroads Area” and “For
the North and South Vallco Park areas (except for the Vallco Shopping District Special
2 The Vallco Town Center Specific Plan was adopted on September 18, 2018. However, upon a
referendum by local residents, the City Council eventually rescinded the adopted Plan in May
2019.
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Area): Maintain the primary building bulk below a 1.5:1 (i.e., 1.5 feet of setback for every
1 foot of building height) slope line drawn from the Stevens Creek Blvd. and Homestead
Road curb lines and below 1:1 slope line drawn from Wolfe Road and Tantau Avenue
curb line.” In 2018, it was determined that the original project met this standard. The 2022
modified project continues to meet this standard by maintaining the 1:1 slope line for all
proposed buildings, including the green roof deck, from the arterial/boulevard curb line.
Objective Design Review Standards
Applicable to the modification request, since there are modifications proposed which
may impact this criterion.
As was determined in 2018, there are no specific “objective design review standards” for
this site (e.g., architectural design standards). However, there are standard project
requirements that are broadly applicable to development within the City (for example,
standards that relate to streets). There have been no changes to the project which impact
standard project requirements and therefore, the modification request complies with
design review standards.
Density Bonus Ordinance
Density Bonus
Revisiting the density bonus received by the project is not required since there are no
modifications proposed which impact the density bonus calculation.
The proposed modified project continues to request a 35% density bonus based on the
level of proposed level of affordability. 15% of the base units in the project (267 units) will
be affordable to very low income households (those making 50% or below of the area
median income (“AMI”). Based on the number of very low income units provided, the
applicant could request a density bonus of up to 50% under current State Density Bonus
Law. The requested 35% density bonus is unchanged from the approved project and is
consistent with state law.
Density Bonus Incentives
Revisiting the density bonus incentives awarded to the project is not required since there
are no modifications proposed which impact the incentives.
The approved project was eligible for three incentives since they provided at least 15% of
the base units (267 units) as affordable to very low income households. The applicant is
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not proposing any changes to the incentives received for the approved project. The three
incentives approved in 2018 are as follows:
1. A concession to allow the affordable units to be studios and one bedroom units
instead of a mix of units comparable to the units within the development pursuant to
BMR Housing Mitigation Procedure Manual section 2.3.4 (A);
2. A concession to allow the studio and one bedroom affordable units to be smaller in
size than the studio and one bedroom market rate units pursuant to BMR Housing
Mitigation Procedure Manual section 2.3.4 (B); and
3. A concession to allow 400,000 square feet of retail, where 600,000 square feet is
required in the General Plan pursuant to Strategy LU-19.1.4.
In 2018, the City determined that these three concessions: a) would result in identifiable
and actual costs to provide for affordable housing costs; b) would not result in specific,
adverse impacts upon public health or safety or the physical environment or any property
that is listed in the California Register of Historical Resources; and c) would not be
contrary to state or federal law. (Gov. Code, § 65915(d)(1)(A)–(C).) These findings are
unchanged by the proposed project modifications.
Sustainability Impact
Approval of the project will result in short-term and long-term increases in carbon
emissions and other sustainability impacts due to construction and operations. However,
those impacts may be offset by emissions reductions and reduced resource consumption
associated with higher density, mixed-use development. The impacts have not been
evaluated because the approved project and the modification request are ministerial
determinations that are not subject to review under the California Environmental Quality
Act.
Fiscal Impact
The building permits and construction taxes from this project will bring one time
revenues to the City. Additionally, ongoing sales tax, business-to-business taxes, and
property taxes will potentially bring tax revenue to the City.
Next Steps
The City Manager will make a decision on the applicant’s modification request based on
the criteria for ministerial approval set forth in Government Code section 65913.4(g). The
60-day review period under section 65913.4(g) expires on June 3, 2022.
Prepared by: Piu Ghosh, Planning Manager
Reviewed by: Benjamin Fu, Director of Community Development
Christopher Jensen, City Attorney
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Approved for Submission: Jim Throop, City Manager
Attachments:
A – Project Description
B – Plans available online at: www.cupertino.org/vallcosb35 or
https://apps.cupertino.org/pdf/Vallco/
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Appendix II, Modification Request Project Description The Rise
SB 35 Development – Modification Request
Project Description
March 24, 2022
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Appendix II, Modification Request Project Description The Rise
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Table of Contents
1 Introduction 2
2 Summary of Modification Request 3
3 Summary of Modification Request Entitlement Amendments 16
4 Residential Affordability and Density Bonus 19
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1 Introduction
Vallco Property Owner LLC (Applicant) submitted its initial application for the Vallco Town Center Project
(Project) pursuant to Government Code section 65913.4 (SB 35) on March 27, 2018 (SB 35 Application),
which was approved by the City of Cupertino (City) on September 21, 2018 (SB 35 Approval). This
modification request application (the modification request) is now being submitted in connection with
the approved Project in order to make necessary revisions based on design advancements that are typical
of all large‐scale projects. This project description provides a high‐level summary of the modification
request.
Since the 2018 SB 35 Approval, Applicant has made significant progress in readying the Project site for
construction and bringing forth much‐anticipated transformational change to the 50.82‐acre former
Vallco Mall property. To date, the City has issued certain construction‐related permits for preparation of
the site including demolition, make‐ready utility, shoring and excavation, and foundation permits.
Meanwhile, Applicant has continued to advance the Project design. The proposed design refinements
reflected in this modification request serve to enhance the public realm, improve circulation, better health
and safety, and continue to deliver on high quality architecture while keeping intact the original land use
program, site plan, general architecture and key community benefits.
The progressed design remains in substantial compliance with the SB 35 Approval and carries forward the
same vision for the Project site. However, the City has asserted a narrow interpretation of how close the
Project must match the SB 35 Approval, finding that refinement of design coordination components, such
as modest changes to the size and programming of the West Plaza, did not meet SB 35’s “substantial
compliance” standard and would require modification to the Tentative Map. With that recent experience
in mind, and as we look towards the next stage of construction and development activity, this modification
request is being submitted to obtain approval for these Project refinements and to provide a clear path
for the building permit review and issuance process moving forward.
As a threshold issue, this modification request remains in compliance with SB 35 and the objective
standards applicable to the Project. The modification request remains consistent with the City’s
Community Vision 2040 General Plan (General Plan) vision for redeveloping the aging and outdated indoor
mall into a vibrant, sustainable, walkable and safe neighborhood. Specifically, this modification request
retains the key hallmark features of the approved Project:
● 2,402 units of critically needed housing, 50% of which will remain affordable to low‐ and very‐low
income residents;
● Robust open space and bicycle and pedestrian connectivity;
● A vibrant mixed‐use “town center” design with residential, retail, entertainment, and office uses
in a pedestrian‐friendly, grid street network with high‐quality architecture that serves as a
community gateway for the City of Cupertino; and
● Sustainable design that reduces heat‐island effect; optimizes energy efficiency across program
types; implements significant water conservation, reclamation, and recycling; enhances the
quality and wellness of indoor environments for all occupants; and replaces an obsolete indoor
mall with 40 acres of naturally landscaped open space.
Importantly, this modification request also reflects design updates due to the changed realities learned
from the COVID‐19 public health crisis, which has fundamentally impacted the way in which Cupertino
and Bay Area residents live, work and play. To that end, key Project updates within this modification
request include increased access to communal and private outdoor space; residential design and vehicle
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parking changes as a result of work‐from‐home realities; increased outdoor dining and outdoor
programming opportunities; and adjustments to the design of indoor spaces (for example, increased
ceiling heights and access to natural light) to improve environmental quality and wellness throughout the
Project. Additional Project updates within this modification request reflect community feedback,
including a revised unit‐type mix that now includes two‐ and three‐bedroom affordable units and the
removal of the residential amenity uses on the Wolfe Road bridge. Additional detail regarding design
updates is provided in Section 2.4 below.
SB 35 allows for applicants to request modifications to previously approved developments through a
ministerial modification process set forth under Gov Code § 65913.4(g). SB 35 establishes that the local
government must approve that modification request if it does not affect the City’s prior determinations
regarding the Project’s consistency with the objective planning standards in effect at the time of the
original SB 35 application. As described by the statute, the City’s role is “strictly limited” to determining
consistency with objective planning standards, a determination it must make within 60 days after
submission of the modification where design review does not apply, as is the case here1.
(§ 65913.4(g)(2)2.) Applicant is committed to supporting the City with its review of this modification
request and looks forward to a collaborative process over the next 60 days.
2 Summary of Modification Request
2.1 Key Project Elements and Land Use Program Remain Unchanged
The modification request does not impact the key Project features and land use program as approved
under the 2018 SB 35 Approval. Consistent with the General Plan vision in effect at the time of the SB 35
Application submittal, including the Vallco Shopping District Special Area, the Project will continue to
implement strategies to revitalize the aging and outdated indoor mall into a vibrant, sustainable, walkable
and safe “town center” neighborhood.
The Project continues to incorporate the following key components and design approaches:
▪ Total 2,402 Residential Unit Count and 50% Affordability: 2,402 units of high‐quality
housing, 50% of which will remain affordable to low‐ and very‐low income, making a
substantial impact in addressing the worsening housing and affordability crisis;
▪ Mixed‐Use Town Center Design: Vibrant mixed‐use “town center” design with residential,
retail, entertainment, office, and open space uses in a pedestrian‐friendly, grid street network
with world‐class architecture that serves as a community gateway;
▪ Traditional Neighborhood Layout: Site plan that connects the community (internally and
externally) via walkable, pedestrian‐ and bike‐friendly streets, squares/plazas, trails, and
pathways;
▪ Open Space and Bicycle and Pedestrian Connectivity: Robust open space program, including
significant ground level and rooftop open space that will feature a diverse set of
programmatic uses, including event and community gathering spaces, recreational lawns,
playgrounds, trails, and acres of natural landscape; and
▪ Sustainable Design: Over 26 acres of programmed open space; 1,271 new, relocated and
retained trees; and extensive natural, drought tolerant landscape and green roofs will replace
1 The City's June 22, 2018 letter determining that the Project is eligible for streamlining under SB 35 confirmed that
there are no applicable "objective design review standards."
2 Unless otherwise stated, all references are to the California Government Code.
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the 50‐acre hardscape of Vallco Mall to create a sustainable, climate responsive project with
an unprecedented connection to nature in the heart of Silicon Valley.
2.2 Modification Request Land Use Program Summary
The modification request includes refinements to the Project land use program, while maintaining the
general mixed‐use design approach and compliance with the two‐thirds residential requirement under SB
35. The SB 35 Application provided a comprehensive overview of the Project design features, most of
which remain intact under this modification request. This Section 2.2 provides an overview of the land
use program set forth under the modification request. Section 2.4 below provides additional details
regarding notable design and program features to assist the City’s review of the modification request.
Additional detailed information regarding design updates and the modification request project data is
provided in Appendix III, Modification Request Plan Sets, Sheets P‐0101 and P‐0102.
Table 1: Land Use Program Summary provides a comparative summary of the Project land use program
as approved under the 2018 SB 35 Approval and the modification request. As shown in Table 1, the
modification request results in a Project‐wide change in square footage of only 1.25% as compared with
the 2018 SB 35 Approval. Notably, the growth of the residential component is responsible for all of the
increase in project square footage.
The residential area expansion was driven by an increase in unit area, notably including an approximate
10% increase in BMR unit area, which was implemented in response to community requests for more
housing opportunities for low income families (though there presently is unmet demand for all low‐
income housing types in Cupertino). Wellness and lifestyle changes as a result of COVID‐19 have guided
the majority of the other land use area changes.
The Project’s residential units continue to allow for both rental and for‐sale tenures, and support a wide
variety of household types. Of the Project’s 2,402 residential units, 1,201 units (50% total units) remain
affordable to low income households making less than 80% area median income (AMI) and 50% AMI in
accordance with applicable SB 35, state Density Bonus Law, and local affordable housing requirements.
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Table 1: Land Use Program Summary – Modification Request & Comparison to SB 35 Approval1
2018 SB 35 Approval Modification Request
Land Use Amount1 % Project Amount1 % Project
Residential Dwelling
Units
2,402 units N/A 2,402 units N/A
Residential Uses
(sq. ft.)
4,961,904 sq. ft. 66.8 % 5,119,005 sq. ft. 68.1%
Office (sq. ft.) 1,981,447 sq. ft. 26.7 % 1,973,494 sq. ft. 26.2%
Retail /
Entertainment (sq.
ft.)2
485,912 sq. ft. 6.5 % 429,408 sq. ft. 5.7 %
Total Square
footage3
7,429,263 sq. ft. 100 % 7,521,907 sq. ft. 100 %
Percent Change3 N/A
Unit Count: 0% change
Square footage: 1.25%
Notes:
1. Calculations provided in this Table 1 are based on the Cupertino Municipal Code 19.08.030 “floor area” methodology as utilized in the SB 35
Approval.
2. The Entertainment component will be no more than 30% the total retail area in compliance with the City of Cupertino’s General Plan.
3. Pursuant to SB 35, underground space shall not be included for purposes of calculating either (i) the two‐thirds residential requirement or (ii)
the square footage of construction changes for modifications. (See § 65913.4(a)(2)(C); see also § 65913.4(g)(3)(A)‐(B).) Therefore, consistent with
statutory requirements, this Table 1 summarizes only at‐ and above‐grade square footages.
2.3 Two‐Thirds Residential Compliance
As shown in Table 1: Land Use Program Summary, the modification request remains in compliance with
the SB 35 requirement that “at least two‐thirds of the square footage of the development is designated
for residential use.” SB 35 establishes additional parameters for the calculation of the two‐thirds
requirement: (1) the square footage of the development shall not include underground space, such as
basements or underground parking garages; and (2) any additional density, floor area, and units, and any
other concession, incentive, or waiver of development standards granted pursuant to the Density Bonus
Law shall be included in the square footage calculation. (§ 65913.4(a)(2)(C).)
As described in the City’s June 22, 2018 letter (“90‐Day Letter”), in evaluating the original SB 35
Application, the City utilized the definition of “floor area” as defined in the Cupertino Municipal Code
Section 19.08.030(F) to determine what percentage of the proposed development is designated for
residential use. In its 90‐Day Letter, the City confirmed that the original SB 35 Application materials
appropriately designated the residential and non‐residential floor areas for purposes of calculating the
two‐thirds requirement. This approach was also upheld as proper by the Santa Clara County Superior
Court.
This modification request utilizes the same approach as in the original SB 35 Application for calculating
the two‐thirds requirement, as shown in Appendix III, Modification Request Plan Sets, Sheets P‐0101 and
P‐0106 through 0108. This approach is consistent with the SB 35 requirement that, when processing a
modification application, the City must utilize the same “assumptions and analytical methodology” that it
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used when processing the original application to assess consistency with objective planning standards.
(§ 65913.4(g)(1)(C).)
2.3.1 Updated HCD Guidelines Methodology Regarding Two‐Thirds Residential Compliance
Since the SB 35 Approval, the City has adopted procedures for implementing SB 35 project applications,
including its SB 35 Eligibility Checklist and related SB 35 Application Form. The City now utilizes an updated
approach to calculating the two‐thirds residential requirement that is no longer based on the “floor area”
definition described above, and instead utilizes a revised approach based on the HCD Guidelines. (See
Updated HCD Guidelines §400(c)(1).) The Updated HCD Guidelines establish that the two‐thirds
calculation is based upon the “proportion of gross square footage of residential space and related
facilities3 as defined in Section 102(w), to gross development building square footage for an unrelated use
such as commercial,” and that structures used for both residential and nonresidential uses “shall be
credited proportionally to each intended use.” (Id.) The primary differences between the original “floor
area” approach utilized in the 2018 SB 35 Approval and this new HCD Guidelines methodology is that,
under the new methodology, (i) certain square footage is allocated proportionally and (ii) some common
areas that are not “substantially enclosed,” such as residential balconies, are included.
While utilizing this revised approach would be appropriate for new SB 35 applications, it is inapplicable to
this modification request because the statute requires that the City utilize the same “assumptions and
analytical methodology” used for the original SB 35 Application. Therefore, using the 2018 “analytical
methodology,” the City must use the Municipal Code “floor area” definition and must exclude the same
types of spaces that were previously excluded. Moreover, pursuant to SB 35, any updated HCD Guidelines
adopted or amended after the Project approval “shall not be used as a basis to deny proposed
modifications.” (§ 65913.4(g)(1)(D).) Therefore, the fact that the HCD Guidelines adopted an updated
approach is not a basis for deviating from the original methodology.
Nevertheless, the modification request remains in compliance with the Updated HCD Guidelines two‐
thirds residential methodology as demonstrated in Attachment A: Two‐Thirds Analysis Per Updated HCD
Guidelines (Informational Only), which includes analysis – for informational purposes only – regarding the
modification request square footage allocations based on the Updated HCD Guidelines methodology.
2.4 Modification Request Design Changes
2.4.1 Land Use Program
As described above, the overall Town Center‐based land use program remains the same. Each of the
eleven major blocks comprising the Project site retains the general mix of land uses as set forth in the SB
35 Approval (i.e., Block 1 remains dedicated to residential and retail uses; Block 6 remains dedicated to
office use, etc.). For reference, Figure 1: Project Site Diagram provides a simplified overview of the
Project site layout and block numbering.
3 The term “related facilities” is defined to mean “any manager’s units and any and all common area spaces that
are included within the physical boundaries of the housing development, including, but not limited to, common
area space, walkways, balconies, patios, clubhouse space, meeting rooms, laundry facilities, and parking areas that
are exclusively available to residential users, except any portions of the overall development that are specifically
commercial space.” Updated HCD Guidelines § 102(w)
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Figure 1: Project Site Diagram
In certain areas, the specific locations of land uses have shifted within particular blocks. For example,
within Blocks 4 and 5, townhome units have been replaced with street fronting retail uses (shifting
residential area to, and intensifying residential use at, the upper levels, including those above the green
roof). Retail has also been added in the plazas: while the East Plaza’s pavilion was removed, two new
pavilions were added to the West Plaza. Furthermore, in response to community concern over the private
residential amenity enclosed within the bridge over Wolfe Road, the modification request includes the
removal of this structure and replaces it with a turfed play field providing a new area of open space and
enhancing connectivity across the green roof. The displaced residential amenity has been distributed to
the various residential blocks in the project, which also serves to improve access thereto by residents.
As a result, the modification request includes certain adjustments to the gross square footage of office,
retail, and residential land uses, as set forth in Table 1 above. Under the modification request, gross
square footage allocations are as follows:
▪ Residential: 5,119,005 square feet of residential areas, including 2,402 residential units, 50%
of which will be income‐restricted affordable units, which remains within with the General
Plan maximum residential density for Vallco Shopping District Special Area of 35 units per
acre, including the 35% density bonus;4
▪ Office: 1,973,494 square feet of office space, which remains within the General Plan
maximum office allocation of 2,000,000 square feet (see footnote #5 below); and
▪ Retail: 429,408 square feet of retail space, consistent with the retail area minimum of
400,000 square feet approved per the density bonus concessions included in the SB 35
Approval, which remains applicable to this modification request.
Additional details regarding the land use program distribution is shown in Appendix III, Modification
Request Plan Sets, Sheets P‐0101, and P‐0106 through P‐0108.
4 It should be noted that due to amendments to the State Density Bonus Law, the Project qualifies for a 50%
density bonus, which would allow 2,669 units. However, the present modification request does not propose a
change to the unit count.
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2.4.1.1 Residential Unit Mix, Layouts and Distribution
As described above, the overall unit mix count remains unchanged at 2,402 total residential units with
1,201 offered at market rate and 1,201 at income‐restricted affordable levels.
The modification request includes certain changes to the unit mix for both market‐rate and affordable
unit types. Under the SB 35 Approval, the affordable units were designed primarily as studios, with no
multi‐bedroom layouts; the modification request now includes 103 affordable units as larger 2‐ and 3‐
bedroom unit types, as well as over 230 additional 1‐bedroom units by converting affordable studios to
larger units. This change will enable more low‐income families to live and work in Cupertino, resulting in
greater equity and benefiting the community in many ways.
Additionally, unit layout design throughout the Project has been informed by market changes from the
COVID‐19 pandemic and refined to accommodate work‐from‐home configurations and offer improved
access to outdoor spaces and amenities.
The distribution of residential units has also shifted within the Project site in an effort to improve project
quality and constructability and optimize unit layouts for livability and quality of life, including prioritizing:
sun exposure, access to outdoors, and flexible work‐from‐home configurations, while also optimizing
constructability of residences in a market where construction costs continue to escalate. The unit mix
was altered to adjust for the increased unit areas due to the additional multi‐bedroom affordable units
and residential market changes. Additional information regarding the modification unit mix allocation and
residential program distribution is further described in Appendix III, Modification Request Plan Sets,
Sheets P‐0102.
2.4.1.2 Office Use
The modification request involves a modest reduction in the office square footage to 1,973,494 SF, which
remains within the 2 million square foot cap established under the General Plan5; the office distribution
remains located in Blocks 6, 7, 8 and 11.
The modification request also includes certain changes to the layouts of the office buildings within Blocks
6, 7, 8 and 11. The office area has been redistributed between Blocks 6, 7, 8 and 11 to meet post‐COVID
market requirements and the evolving types of office users in the Bay Area. Blocks 6, 7 and 8 have been
standardized to a similar size to accommodate and appeal to multi‐tenant, single tenant and multi‐
building campus users alike. The floorplates of these buildings have also been optimized to meet
requirements of office, R&D, and life science users. The office entrances have been revised to coordinate
with the Project site’s sloped grading and are located to account for anticipated future office tenant
preferences. Overall, typical floor to floor heights have been reduced from approximately 17’‐8” to
approximately 15’‐2” (resulting in typical floor to ceiling heights of 14’‐5”). As described in Section 2.4.3.5
below, major mechanical, electrical and plumbing infrastructure has been relocated to the ground floor,
which has allowed for improved loading and service functions to be located at‐grade rather than in
5 This is a conservative approach because this square footage is based on the “floor area” definition, but the City’s
approach to office allocation is to exclude “amenity” space because such space does not generate additional vehicle
trips. For example, the City excluded several categories of space from Apple Park, including the restaurant, entries,
security receptions, wider hallways, among other areas. The Project includes several similar features, but they are
not accounted for in this project description (nor are they deducted from the Project’s floor area).
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basement levels. As a result, new loading docks have been provided for each building from the Wolfe
Road Frontage Road along Blocks 6, 7, and 8.
As the City previously confirmed that life science is an allowed use for the Project, Block 11 has been
reconfigured to accommodate life science tenants, including the potential for laboratory fit‐outs and with
the design and operational criteria required for life science uses, including appropriate loading and
staging, clear heights, floor loads and MEP criteria, among other features. The prospect of life sciences at
the Project would be of significant benefit to the City given market demand for this use, the job and fiscal
diversity life science uses would introduce to Cupertino, along with the comparatively lower employee
density and resulting lower traffic volume impacts as compared to traditional office uses.
2.4.1.3 Retail Use
The modification request retains a comparable amount of retail square footage of 429,408 SF, which
remains consistent with the retail area minimum of 400,000 square feet approved per the density bonus
concessions included in the SB 35 Approval; retail uses remain located throughout Blocks 1 through 5. The
modification request includes certain changes to the location, configuration and layouts of the retail uses
throughout the Project site to improve retail siting and create more robust retail environments, as well as
to account for required circulation, services and structural components, which impact retail area. For
example, Block 1 retail depths were decreased by at least one structural bay in order to accommodate a
rear loading area and enhance leaseability given the market demand for storefront‐oriented street retail,
as opposed to urban big box retail format.
With that same goal in mind, retail space has been extended along Street 7 to enhance the retail and
shopping environment. Similarly, within Blocks 4 and 5, retail uses have been expanded in that location,
with the townhome units previously in those locations relocated elsewhere, and a pedestrian‐only paseo
has been added at the ground floor in Block 4 to facilitate connectivity and create a unique retail and
dining atmosphere. Finally, sidewalks have been increased in depth throughout the Project site to provide
for expanded outdoor dining opportunities to meet newly intensified demand, provide opportunities for
the community to enjoy Cupertino’s temperate climate, and create an improved pedestrian experience.
Collectively, these changes will further the City and community’s vision for an unparalleled retail, dining,
and entertainment destination that will become the social heart of Silicon Valley and ensure that the
vibrancy and urban energy once offered by the former Vallco Mall is restored.
2.4.2 Open Space
The modification request maintains the Project’s commitment to providing an inspired open space design
that connects the community with miles of trails and acres of natural landscape, recreational lawns, play
areas and community gathering spaces in a City that is built‐out with few remaining opportunities for
these important features, much less additional future parks such as what this Project provides. Built and
natural environments complement one another to create thriving communities. The pandemic has
demonstrated that open space and parks are not just an amenity but are instead a necessity for basic
human health and wellness.
The City, through its General Plan and Parks & Recreation System Master Plan, has identified eastern
Cupertino, i.e., where the Project site is located, as an area with limited existing parks and an area where
the City should focus new parks. However, given the limited availability of land to be made into new open
space and parks, the primary strategy for achieving this goal is through incorporation of onsite open space
within private developments such as the Project. The Project provides an innovative solution to address
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the need for a natural environment in this region of the City with inadequate existing open space or parks
by providing acres of open space intended for community gathering, play areas, and pedestrian/bicycle
trails.
The modification request includes certain limited changes to the configurations and layouts of the Project
open space to accommodate the other design refinements described herein while maintaining over 26
acres of programmed open space throughout the Project, including meeting the requirements for private
park credit under the Cupertino Municipal Code.
West Perimeter Park
The West Perimeter Park combines existing park spaces from the SB 35 approval into a programmed 3.79
acre park at the western edge of Block 1 on the west side of the Project site. (For reference, the West
Perimeter Park is comparable in size to the City’s Portal Park.) The West Perimeter Park includes children’s
play areas, family picnic areas, recreational lawns, accessible pedestrian paths and an informal
amphitheater that will provide a unique programmed park for the community. The West Perimeter Park
begins at‐grade on Stevens Creek Boulevard and Perimeter Road and maintains accessible routes as it
slopes up. Because portions of the West Perimeter Park slope upwards, a new elevator has also been
added to the north end of Block 1 to provide additional improved access to the topmost portions of the
West Perimeter Park.
Town Center Plazas
The modification request retains the “town center” design centered around two outdoor plaza areas –
the West and East Plazas – which will provide transformational placemaking for the Project site and
surrounding area. The modification request includes limited changes to the design and configuration of
the West and East Plazas.
The dimensions of the West Plaza have been reduced by approximately 0.14 acres from 1.26 acres to 1.12
acres in order to increase the area of the sidewalks immediately adjacent to the West Plaza at Blocks 2
and 3, which will provide an expanded and improved outdoor dining opportunities to meet newly
intensified demand as described above and a more vibrant setting. Within the West Plaza, design and
program elements have evolved in terms of landscape planting, seating, and retail pavilions to support
the activation of the plaza and create the dynamic destination envisioned for the community in the SB 35
approval. The West Plaza will include three retail pavilions (increased from one), which will create more
intimate dining and retail opportunities while activating the plaza throughout the day. Additionally, two
public access points have been added from the below grade parking to the plaza to facilitate pedestrian
circulation and provide convenient entrance points.
The dimensions of the East Plaza have been increased from 0.74 acres to 1.88 acres. This increased size is
achieved through incorporation and programming of the pedestrian‐only areas adjacent to the East Plaza
and between Blocks 9, 10 and 11. Specifically, the East Plaza has been reconfigured to limit vehicular
travel around the plaza and to create a more pedestrian friendly setting, with pedestrian/bicycle paths,
seating and landscaped plantings. The single retail pavilion has been removed, along with the
escalator/elevator bank, in order to maximize the usable East Plaza area. Dedicating all of the below‐grade
parking to the office use allowed for the removal of the central escalator/elevator bank, improving garage
layout efficiency, strengthening the individual connections between the garage and each office building.
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Pedestrian and Bicycle Trails
The Project continues to incorporate a vast network of trails, including a pedestrian and Class I bikeway
along Perimeter Road with potential connection to future City trails, to allow residents, workers and
commuters alternatives to single‐occupancy vehicles. The Class I bikeway follows the perimeter of the site
and will increase the City’s existing Class I bikeway mileage by approximately 15%. Protected Class IV bike
lanes are incorporated in the design at Wolfe and Stevens Creek. Class II and III paths connect the internal
project street grid. This bikeway network will provide much needed safe bike routes in what currently is
one of the City’s highest stress biking areas. Pedestrian trails and sidewalks are provided throughout the
project on both the ground level and on the rooftop.
Green Roof Feature
Between the opportunity to master plan a 51‐acre site and Applicant’s commitment to a development of
the utmost quality and benefit, the Project continues to provide the largest green roof in the world. With
this modification, the Project will deliver robust rooftop open space featuring a range of active and passive
programming, including: a turfed playfield area; game, fitness, and sport court areas; picnic areas;
swimming pools; and natural landscaping. The modification request makes certain refinements to the
programming of the green roof area. Notably, the outdoor residential amenity area previously located
above Block 5 has been relocated to the bridge located between Blocks 4 and 5. The pedestrian bridge
diagonally crossing the West Plaza has been removed. As noted above, the bridge crossing Wolfe Road
also has been reconfigured to remove the residential amenity space and has been replaced with a
protected outdoor turfed playfield.
The Applicant’s vision for the green roof has always been for it to be a well‐used place–by residents,
workers, and visitors–and that its best use is, consistent with its urban setting, as an active outdoor
environment. This modification takes additional steps to ensure the activation of the green roof, including:
introducing office use and adding more housing units at the green roof level; creating additional means
of access to the green roof, specifically elevator service at the West Plaza providing general access to the
West Perimeter Park as well as additional residential common area access points; and creation of a gentler
and more walkable slope along with the refinement of the trail and pathway design.
Project Open Space Programming and Operations
As described below, because the City has elected not to provide park fee credit for a public access
easement dedication that had been offered over the open space areas, including the plazas, the Tentative
Map is being amended to remove this easement. Given Applicant’s interest in providing a parkland
solution for the park‐deficient east side of Cupertino, these areas will continue to provide community
gathering spaces, connectivity, and opportunities for community events, but with more flexibility for the
Owner to develop appropriate rules and regulations related to security, use, hours of operation and
conduct and to make necessary operational and/or design changes over time. The public access easement
– and the property rights such an easement would afford the public – could be restored if the City agrees
to provide park fee credit as originally envisioned (and consistent with City policy to require park
dedication rather than in‐lieu fees).
2.4.3 Building Bulk, Setbacks, and Height
The General Plan requires the Project to create a vibrant, mixed‐use town center with residential, retail,
office and open space uses. The modification design maintains the basic programming of the SB 35
approval with some adjustments to building bulk and height to accommodate market driven changes to
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residential and commercial uses, in part due to design changes that respond to COVID‐19. The peak height
of the project (which is reached at the Block 9 and 10 tower elements) remains effectively unchanged
from the SB 35 approval (the height of Blocks 9 and 10 as measured from NAVD‐88 increased by 6 inches).
However, under the modification request, some heights and bulks of other structures have increased, as
shown in the Appendix III, Modification Request Plan Sets In some areas, floors have been added to
accommodate the increase in residential unit area and redistribution of residential amenity space. Given
the constraints of the site and General Plan requirements, the only way to accommodate this additional
area is to increase building bulk. Floor to floor heights for all uses have been adjusted to meet prevailing
market expectations for indoor design quality and access to natural light.
Countering these changes to building bulk and heights, the peak of the green roof surface has generally
been lowered by approximately 9 feet on the west side and approximately 20 feet on the east side, and
while the green roof’s surface or edges are not a part of the primary building bulk, the lowering of this
architectural feature may also contribute to an enhanced visual connection from the ground level with
the green roof and a reduction in the overall perception of the height of the buildings adjacent to it from
Stevens Creek Boulevard, Wolfe Road, Vallco Parkway, and neighboring properties. The updated rooftop
design provides for more accessible and gradually sloping paths and spaces on the roof.
The Project is sensitive to its neighbors and these changes were made with the utmost consideration. In
addition to lowering the main green roof plane, setbacks have been utilized to minimize the perceived
building height from streets and neighboring properties. Upper floors are substantially setback at the
green roof level by at least 25’ (and in most locations, 40’) and continue to be further setback on higher
floors to minimize perceived bulk and height.
The design changes remain in compliance with the General Plan requirement to maintain the “primary
building bulk” below the 1:1 set‐back plane from the arterial/boulevard curb line; no other applicable
development standards apply to the Project’s height or bulk. Although the term “primary building bulk”
is not defined in the General Plan, its plain meaning would allow some features to exceed the setback.
The word “primary” suggests that “secondary” or “non‐primary” portions, such as architectural features,
may exceed the setback plane and “bulk” suggests the primary massing. This interpretation is also
consistent with recent City practice.6 See Appendix IV, Updated Objective Standards Consistency Analysis
for additional information regarding the modification request compliance with applicable objective
standards.
These changes to the project’s heights, setbacks and bulk will serve to improve the ground floor retail
offering, enable the expansion of the affordable units, maximize the placement of residential units above
the green roof, provide improved outdoor access to residents and employees, and deliver a more
activated rooftop open space experience.
2.4.3.1 Vehicular Circulation
The Project’s overall vehicular circulation plan remains the same, including maintaining the major egress
and ingress along Wolfe Road, Stevens Creek Boulevard and Vallco Parkway and centering internal
vehicular circulation within the Project site around an internal small block‐street network, which has been
designed consistent with the City’s “complete streets” General Plan Policies M‐2 and M‐2.2. The
modification request includes minor changes to the Project vehicular circulation and mobility features.
6 For example, recent City staff reports for the Westport project excluded the roof overhang when depicting the
location of the “primary building bulk.”
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Project Ingress and Egress
A new central entry ramp has been incorporated at the Vallco Parkway and Wolfe Road intersection
(entering the west‐side below grade garage and arriving at a new rideshare hub and visitor services facility
described below), which improves arrival efficiency, reduces traffic, and promotes a safer pedestrian
environment throughout the Project. Three additional non‐residential parking entrances have been added
to the perimeter of the Project at Blocks 4 and 5 along Wolfe Road and at Block 6 along Street C, and the
Perimeter Road ramp at Stevens Creek Boulevard has been modified to coordinate with the progression
of the basement parking layout; taken together, these changes further enhance the pedestrian experience
in the internal street grid as well as motorist convenience.
Certain residential parking ramp locations have been modified to better coordinate with surrounding
retail storefronts and merchandising and improve the walkability of the Project site street grid.
Internal Circulation
The modification request includes certain changes to internal vehicular circulation. For example, Street 1
(crossing beneath Blocks 2 and 4) has been converted to a pedestrian‐only paseo in Block 4 that connects
the retail environments between Wolfe Road and the Project site. Street 1 has been removed from Block
2 to provide a better pedestrian retail experience along Streets B and C.7 Additionally, residential porte
cocheres have been incorporated into Blocks 3, 4, 5, 9 and 10 to provide covered entrances for additional
loading and pick‐up and drop‐off access for residents.
Mobility Services and Features
Additionally, a new rideshare hub has been introduced at the center of the below grade parking structure
on the west side, which provides convenient access to the West Plaza located above. The rideshare hub
includes areas for transportation network company pickup/dropoff areas, valet, concierge and parking
services, security, and restrooms, including accommodations for shuttles and ADA vans and parking
spaces for car share vehicles. The parking garage entrances have been directly aligned with the rideshare
hub to provide direct vehicular access, and allow Project visitors to easily access the West Plaza using
newly located escalators and elevators. The 15 car‐share parking spaces under the Block 1 mezzanine have
been relocated to the rideshare hub. Direct pedestrian access is provided from the rideshare hub to the
pavilions at the West Plaza, providing efficient and intuitive wayfinding for pedestrians. The rideshare hub
was designed in collaboration with transportation networking companies and parking industry experts to
optimize traffic and pedestrian flow and circulation.
2.4.3.2 Transportation Demand Management
The Project will continue to incorporate and implement various Transportation Demand Management
(TDM) measures that will result in reduced single occupancy vehicle trips, consistent with City policies
favoring alternative mode use and alternate transit solutions. The following TDM infrastructure and
operational measures remain incorporated in the modification request and will result in significant vehicle
trip reductions:
● Parking supply limits
7 City Staff has reviewed these changes to Street 1 during review of the draft Final Map and has confirmed that
they are in substantial conformance with the SB 35 Approval. Nonetheless, this modification request includes
these changes so that the plan set and updated Tentative Map are complete.
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● Unbundled residential parking
● High quality transit stop on Stevens Creek (which also will serve as a mobility hub, in that
the facility will include bike storage and repair along with transit service)
● Transit stops on Wolfe Road (one of which will also serve as a mobility hub)
● Rideshare/Transportation Network Company Hub
● Bike hubs (bicycle storage and repair facilities) distributed throughout the Project
● Class IV bike lanes on Wolfe Road and Stevens Creek
● A grid network of pedestrian connectivity throughout the Project for shortest walking paths
● Pick‐up and drop‐off areas for private shuttle buses on the east and west side of the Project
● Showers and lockers for office users
● Potential space for a day care facility for children
● Valet service to reduce on‐site travel
● Carpool parking spaces
● EV parking spaces
● Infrastructure for priced retail and workplace parking
● BMR units (which have reduced VMT)
Through marketing and tenant agreements, among other means, the Project will also promote various
TDM measures, such as work‐from‐home, car‐pooling, bicycling, walking between office spaces,
residential units, and restaurants and shops, the use of VTA transit, and the use of private shuttles.
Additional details regarding operational TDM components may change over time depending, in part, on
new transit services and emerging technologies, as new commuter patterns and preferences arise, and
based on tenant needs and market conditions at the time of implementation.
In addition to mitigating the potential traffic impacts of the Project and removing vehicle trips from the
City’s roadway network, these TDM measures include certain improvements identified on the City’s TIF
improvement plan in addition to improvements that are a similar type and provide the same benefits as
those included in the TIF improvement plan. Furthermore, as modified the Project also dedicates
significant land to the City for implementation of traffic improvements, such as frontage roads,
bikeways, sidewalks, and turn lanes.
2.4.3.3 Vehicle and Bicycle Parking
Because the Project site is located within one‐half mile of public transit, parking standards are not
applicable to the Project, including this modification request. (See §65913.4(e)(1).) Nonetheless, the
Project continues to provide parking to adequately meet the demands of the various uses, as described
below for informational purposes.
The modification request includes changes to vehicle parking counts and locations as detailed in Appendix
III ‐ Modification Request Plan Sets, Sheets P‐0101. Because one of the most effective TDM measures for
reducing vehicular trip generation and encouraging the use of alternative modes of transportation is to
reduce parking supply, and after further analysis of the parking allocations demonstrated that surplus
below‐grade parking was available for office and retail uses under the parking ratio included in the SB 35
Approval, the Project’s total parking area has been reduced to include 7,583 vehicle stalls. The parking
count is inclusive only of striped stalls and does not include additional parking accommodation that may
be provided through parking management strategies, including valet parking programs and mechanical
stackers, which would be deployed based on future tenant requirements. It is estimated that
implementing these parking demand strategies could increase the parking capacity by at least 30%,
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yielding a similar effective parking supply as included under the SB 35 Approval, but avoids construction
of surplus physical parking, consistent with best TDM practices.
The reduction in parking is consistent with City policies, including General Plan Strategy LU‐8.3.2, which
encourages shared or reduced strategies where appropriate as incentives to construct new commercial
and mixed‐use development, while increasing opportunities for other modes of transportation. Reduction
in parking is further supported by a reduced office parking demand resulting from expanded work‐from‐
home policies, the opportunity for a shared parking approach between the Project’s retail and office uses
and increasing utilization of rideshare services. Additionally, the Project may incorporate a significant life
sciences component within the office square footage allocation given the notable recent expansion of the
life sciences market within Silicon Valley. It is well established that life science and research &
development land uses generate lower parking demands based on a lower yield of occupied space due to
research and laboratory design requirements. The associated reduction in total parking square footage
also results in reductions in construction‐related impacts relating to subterranean grading activity,
offhaul‐ and construction‐related trips, and the extent of hard materials necessary for construction (e.g.,
concrete and steel).
The modification request incorporates 2,780 Class I bicycle parking spaces and 326 Class II bicycle parking
spaces, an increase from the approved Project. Additionally, the modification locates several bike hubs
throughout the project, at which cyclists can store and repair bikes, creating convenient and frequent
facilities to encourage bicycle commuting to and from the Project.
2.4.3.4 Central Utility Plant & Accommodation of Fire Station (4 Person Facility)
The modification request retains the standalone central utility plant included within the Project located
at Block 3A, which provides utility services to the Project site. Based on further design progression and
coordination with utility providers, the central utility plant has been developed to include the equipment
required to provide primary incoming power, heating and cooling, recycled water with treatment, tier‐
four life safety generators, and a cooling tower condenser water loop to serve all buildings on the
property. The above grade area of the central utility plant has decreased from 16,000 square feet to
12,000 square feet. The use of a condensed water loop throughout the Project site will provide an
environmentally sustainable heating and cooling sink that takes energy from one use and uses it in
another.
Under the SB 35 Approval, the approved plan sets included an approximately 7,000 square foot area for
an optional fire station accommodating four SCCFD staff in the northwest of the Project site. Under the
modification request, the central utility plant continues to include demised space for an approximately
7,000‐square foot fire station (4‐person) to accommodate two vehicle apparatus bays (one apparatus bay
accommodating an approximately 168” wheelbase fire truck and one accommodating a Captains Vehicle),
which has been reviewed with Santa Clara County Fire Department (“SCCFD”), as a possible future tenant
fit‐out. While a fire station is not required by the Project approvals or any other applicable regulatory
requirement, the Applicant intends to continue to provide this new fire station, as designed, which will be
a community benefit for the Project and the surrounding community. The City has estimated the value of
this benefit to be $10,000,000.
2.4.3.5 Mechanical, Electrical and Plumbing Configurations
Under the SB 35 Approval, the majority of mechanical, electrical and plumbing (MEP) equipment was
located in various below‐grade areas. Based on further design progression and as a result of advanced
coordination with PG&E, this equipment has now been relocated to ground‐floor levels. This relocation
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has allowed for the reduction in the below‐grade garage perimeters by eliminating the MEP space
reserved for below‐grade transformers and other MEP equipment has now been placed at grade within
the buildings. This relocation remains in compliance with PG&E Electric and Gas Service Requirements
(Greenbook).
Under the modification request, the distribution of cisterns for water capture, retention, and reuse have
also been relocated to below the garage parking slabs following the natural slope of the site. Through
consultation with the various City, County, and State agencies, certain infrastructure utility points of
connection, sizes, and distribution have been refined according to meet these agencies’ respective
requirements, including relocations of above‐grade components that will be screened to meet Cupertino
standards.
2.4.3.6 Construction Phasing
Development of the Project is expected to occur in multiple phases over several years, depending on
market absorption rates, with both sequenced starts and concurrent openings. The construction phasing
plan remains conceptual until such time as building permits are issued, and actual phases may vary as to
scope or sequence at that time.
In response to community feedback, Applicant has prioritized the delivery of the Project’s much‐needed
housing, as well as the majority of the retail and a significant portion of the at‐grade open space in the
first phase of construction, as well as the complete road network and supporting infrastructure. In
particular, the first construction phase is anticipated to include the central utility plant, the below‐grade
parking structure podium on the west side, and construction of Blocks 1, 2, 4, and the West Plaza. The
second construction phase is anticipated to include the remaining west side buildings on Blocks 3, 5, and
6. The final third construction phase is anticipated to include the entirety of the east side, inclusive of the
two levels of podium, Blocks 7, 8, 9, 10, and 11. (Note that, compared to the original phasing plan, this
phasing plan contains a greater percentage of affordable housing and greater amount of retail delivered
in the first phase, the same amount of office delivered in the first phase, and a lower amount of office
delivered in the first two phases).
Consistent with the building permit applications on file with the City, it is anticipated that the
subterranean garage structures/podia will be developed, and they will then support no less than the
construction of superstructures above the ground plane. Again, this conceptual phasing plan is subject to
further refinement (which could include the modification or swapping of any phase), and the completion
of any individual building will depend upon a number of factors, including construction logistics, relocation
of any remaining existing tenants, availability of contractors, and other market conditions and will
continue to be implemented with the Conditions of Approval, such that the last certificate of occupancy
for non‐residential construction shall not be issued until two‐thirds residential square footage is
constructed.
3 Summary of Modification Request Entitlement Amendments
In connection with the SB 35 Approval, the City issued the following specific entitlements:
(1) Development Permit – Major; (2) Architectural and Site Approval – Major; (3) Tentative Subdivision
Map for Condominium Purposes (Tentative Map); and (4) Tree Removal Permit. Applicant anticipates that
this modification request will require amendments to each of these permits.
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3.1 Planning Permit Amendments
Specifically, Applicant anticipates that the Development Permit – Major and Architectural and Site
Approval – Major will be amended to reflect the design revisions described above and as reflected in the
Appendix III, Modification Request Plan Sets. The Tree Removal Permit amendment will be required to
account for removal of twelve (12) additional on‐site tree removals consistent with Condition 30, which
states that a Tree Removal Permit is required for removal of additional on‐site protected trees. These
additional tree removals are required due to location of Project driveways and loading areas along Wolfe
Road; these additional trees include #63, 65, 66, 67, 277, 284, 440, 441, 442, 466, 467, and 1245 as shown
in the tree disposition plan in Appendix III, Modification Request Plan Sets, Sheets P‐0101 and P‐0602B
and as described in the Appendix VIII, Updated Arborist Report. In total, the Project will include 1,271
trees inclusive of new, relocated and retained trees; the total number of trees on the Project site has been
reduced compared to the SB 35 Approval but tree replacements on the Project site will continue to exceed
City replacement requirements. No additional amendments to the Tree Removal Permit are anticipated.
Additional details regarding the Tentative Map amendments are described in Section 3.2 below.
Because the modification request is being submitted pursuant to SB 35, the City’s normal permitting
process and any findings or other requirements are not applicable to the extent that such requirements
go beyond confirming SB 35 compliance and whether the modification affects the City’s prior
determination of the Project’s consistency with objective standards. SB 35 prohibits the City from
requiring discretionary approvals for the modification request, consistent with the original SB 35 Approval
process.
3.2 Tentative Map Amendments
The Tentative Map amendment is proposed primarily to remove a Public Access Easement that had been
included originally on the areas proposed for public parks and open space, including the plazas, the
bike/ped path and access to the green roof. However, because the City has elected not to recognize these
areas as public park dedications for purposes of providing Park Fee credit, the dedications are being
removed. In addition, we are proposing to modify the area dedicated to the City at the corner of Wolfe
Road and Stevens Creek Boulevard to align with other project changes. There are also other minor changes
that through the Final Map processing, the City has confirmed are in substantial conformance with the
original Tentative map. Although these minor changes have been determined to be in substantial
conformance, the Tentative Map is being updated to reflect them as well.
Table 2 below describes all the changes. Overall, the core components of the Tentative Map remain as
approved under the SB 35 Approval, including: the proposed configuration of Parcel A and Parcel B;
allowance for up to 2,500 condominium units (not to exceed 2,402 residential and 98 commercial/retail
condominium units); and the option to utilize phased final maps pursuant to Section 66456.1 of the
Government Code.
None of the proposed changes to the Tentative Map relate to an objective standard applicable to the
Property.
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Table 2: Tentative Map Revisions per Modification Request
Map
Component/Features Additional Details
No Modification Proposed
Parcel Number No change proposed. Tentative Map revision retains proposed Parcel A and Parcel B
configuration on either side of Wolfe Road.
Condominium
Purpose
No change proposed. Tentative Map revision retains proposed allowance for up to 2,500
condominium units (not to exceed 2,402 residential and 98 commercial/retail
condominium units).
Phased Final Mapping No change proposed. Tentative Map revision retains option to utilize phased final maps
pursuant to Section 66456.1 of the Government Code.
Easement Relocation No change proposed. Tentative Map revision maintains all easements proposed for
relocation by the approved Tentative Map pursuant to Section 66434(g) of the Government
Code remain as previously shown.
Modification Proposed
Dedications Modification proposed. Tentative Map revision continues to provide dedications of the
Vallco property along the Project frontages, but the specific dedication alignments have
been updated based on direction from the City Engineer and the City’s surveyor. Namely,
the property lines after dedication along Wolfe Road and Stevens Creek Boulevard were
adjusted to comply with requests from Public Works: (1) On Stevens Creek Boulevard, the
dedication area was revised to ensure that the Property line is parallel to the centerline of
the right of way; and (2) on Wolfe Road, the dedication area was revised to follow the line
of the five foot public sidewalk. In addition, the property lines after dedication at the corner
of Wolfe Road and Stevens Creek Boulevard were adjusted to align with the modification
request site plan, resulting in dedication of a five‐foot public sidewalk in that location.
Lastly, easement rights have been reserved along the dedicated areas on Wolfe Road
adjacent to the pedestrian bridge to accommodate air rights, supports, footings and
columns associated with the bridge.
Public Utility
Easements (PUE)
Modification proposed. Tentative Map generally maintains all public utility easements for
maintenance and operation of public utilities across the Project site; one minor change has
been included to relocate a portion of the 10‐foot PUE to the other side of Perimeter Road.
Emergency Vehicle
Access Easements
(EVAE)
Modification proposed. Tentative Map revision continues to provide EVAEs on all vehicular
streets throughout the Project site; however, based on the updated design, a vehicular
street has been removed from Blocks 2 and 4 so the corresponding EVAE has been removed
from that location.
Public Access
Easements (PAE)
Modification proposed. The original Tentative Map included public access easements over
the plazas, bike/ped facilities through the Project and onto the green roof. The intent of
these public parks was to satisfy the City's Parkland Ordinance. However, and
notwithstanding General Plan policies favoring dedications over fees, the City has elected
not to treat these areas as parks and to instead charge a fee. Therefore, the Tentative Map
revision removes PAEs on plaza areas, as well from certain bicycle pathways and the access
point to the green roof. If the City determines that credit should be given for the PAEs, the
Applicant would be willing to maintain the PAEs.
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4 Residential Affordability and Density Bonus
As described in the SB 35 Application and the SB 35 Approval, the Project qualified for and was granted a
density bonus under the State Density Bonus Law (as implemented by the Cupertino Municipal Code).
Under the SB 35 Approval, the City granted a density bonus of 35 percent, yielding 623 additional market
rate density bonus units, and granted three concessions as described below.
The modification request remains eligible for the 35% bonus and three concessions as approved. Under
the applicable General Plan Land Use Element policies, the “base density” for the Project site remains
1,779 units. Under the modification request, the Project will continue to provide 50% of the units (i.e.,
1,201 units) affordable to at least 80% AMI households; these 1,201 units exceed the number of affordable
units required by SB 35, as has been clarified by HCD. The requirement to provide 50% affordable units is
calculated excluding any market rate density bonus units, which yields a total Project requirement of 890
affordable units. (See HCD Guidelines § 402(b)(3).) Therefore, by including 1,201, the Project is voluntarily
providing an additional 311 affordable units as a community benefit above the required 890 affordable
units. Consistent with the SB 35 Approval, the Project’s density bonus units remain geographically
separate, as allowed under the state Density Bonus Law. Also, although the Project now qualifies for a
50% density bonus due to changes in state law, because of the advanced stage of design and the relatively
significant changes to building heights and land use distribution that would be necessary to accommodate
the additional units, the Project continues to propose a 35% bonus resulting in the same number of total
units.
The modification request includes a reduction of the Very Low Income units to 267, which represents 15%
of the base density of 1,779 units. The State Density Bonus Law allows three concessions for projects with
15% of the "total units," where that term is defined to exclude units added by the density bonus, available
for very low‐income households. As a result, the Project continues to qualify for three concessions, as
further described in Section 4.1 below.
See Table 3 below for a comparative summary of the density bonus calculation under the SB 35
Application and this modification request.
Table 3: Density Bonus Summary Table
Maximum
Units
Permitted
Excluding
Bonus
Maximum
Units
Permitted
with Bonus
Affordable
Units by
Income Level
Bonus
Percentage
Incentives/
Concessions
Bonus
Units
Total Units
Proposed
Original
SB 35
Approval
1,779 2,402 Very Low: 361
Low: 840 35% 3 623 2,402
Modification
Request 1,779 2,669 Very Low: 267
Low: 934 35% 3 623 2,402
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4.1 Density Bonus Incentives/Concessions
In addition to increasing the Project’s density, the Project qualified for 3 concessions under the State
Density Bonus Law based on the inclusion of 15% of the total units for very low‐income households. As
further described in the SB 35 Approval, the City granted the following concessions under the State
Density Bonus Law:
1. A concession to allow the affordable units to be studios and one‐bedroom units instead of a mix
of units comparable to the units within the development pursuant to BMR Housing Mitigation
Procedure Manual Section 2.3.4 (A);8
2. A concession to allow the affordable units to be smaller in size than the market rate units pursuant
to BMR Housing Mitigation Procedure Manual Section 2.3.4(B); and
3. A concession to allow 400,000 square feet of retail, a reduction of 200,000 square feet, where
600,000 square feet is required in the General Plan pursuant to Strategy LU‐19.1.4.
The Project, as modified, would continue to include these three concessions. Under SB 35, additional
density or other concessions, incentives, or waivers of development standards granted pursuant to the
Density Bonus Law are not taken into account when evaluating compliance with the City’s “objective
zoning standards” and “objective design review standards.” Despite recent case law that brings clarity to
and would facilitate the use of waivers in the Project, no Density Bonus waivers are currently proposed.
Under the State Density Bonus law, the City can only deny an incentive or concession if it finds that an
incentive or concession does not result in identifiable and actual cost reductions; would have a specific,
adverse impact on public health and safety or the physical environment; or would violate state or federal
law. The City has already granted these concessions, and they remain applicable, so that determination
cannot be revisited. As required by the State Density Bonus Law, the obligation to maintain these units as
affordable units will be recorded in an agreement between Applicant and the City.
8 Although the modification request adds two‐ and three‐bedroom units, as requested by the City, the proportion
of affordable and market unit types is not the same so this concession remains applicable.
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Appendix II, Modification Request Project Description The Rise
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Attachment A – Two‐Thirds Residential Compliance – Updated HCD
Guidelines Methodology (Informational Purposes Only)
This Attachment A provides information regarding the original SB 35 Approval and modification request
square footage measurements based on the Updated HCD Guidelines methodology, which is utilized in
the City’s SB 35 Eligibility Checklist and related SB 35 Application Form. This is provided for informational
purposes and the City must use the “floor area” definition because that was the “analytical methodology”
utilized in the SB 35 Approval. As shown in Table 4 below, the modification request remains in compliance
with the two‐thirds residential requirement when utilizing the Updated HCD Guidelines methodology, as
well as the floor area approach (see above Project Description, Section 2.2, Table 1).
The key ways in which the Updated HCD Guidelines Methodology differs from the “floor area” definition
are that areas that service both residential and non‐residential are apportioned and residential balconies
are included. (The City's practice is to not count non‐residential balconies as building area, and so we have
adopted that approach here. However, if we were to include nonresidential balconies in the calculation,
the Project would still comply with the 2/3s test.) Because the HCD Guidelines Methodology focuses on
types of uses and not on measurement methodologies, this approach continues to use some City
conventions, such as excluding attics, counting stairwells/elevators only at the base, and double counting
areas with extra high ceilings (15 or 20 feet, depending on the floor). As it relates to the modification of
the 2018 approval, the current design reflects a COVID‐driven increase in private open space, such as
yards and terraces.
Table 4: Two‐Thirds Residential Compliance – Updated HCD Guidelines Methodology1
2018 SB 35 Approval (Recalculated
Utilizing HCD Methodology Modification Request
Land Use Amount % Project Amount % Project
Residential Dwelling Units 2,402 units N/A 2,402 units N/A
Residential Uses (sq. ft.) 5,410,304 sq. ft. 68.7% 5,656,995 sq. ft. 69.7%
Office (sq. ft.) 1,981,447 sq. ft. 25.2% 1,985,600 sq. ft. 24.4%
Retail / Entertainment (sq. ft.) 485,912 sq. ft. 6.2% 475,122 sq. ft. 5.9%
Total Square footage 7,877,663 sq. ft. 100 % 8,117,717 sq. ft. 100%
Percent Change4 N/A
Unit Count: 0% change
Square footage: 3.05%
Notes:
1. Information in this Table 4 is provided for informational purposes only; the floor area methodology described in Section 2.2, Table 1 of the
Project Description remains the applicable methodology for purposes of determining two‐thirds residential compliance required under SB 35 and
determining the percent‐change of the modification request compared to the SB 35 Approval.
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Rise Modification Plans are available online at:
www.cupertino.org/vallcosb35 or
https://apps.cupertino.org/pdf/Vallco/
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