CC Resolution No. 21-118 (M-2021-002)RESOLUTION NO.21-118
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A DEVELOPMENT PERMIT MODIFICATION TO THE
PREVIOUSLY APPROVED WESTPORT CUPERTINO PROJECT BY REDUCING
THE UNITS OF THE ASSISTED LIVING FACILITY (BUILDING 1) FROM 131 TO
123, AND REDUCTION IN PARKING LOCATED AT 21267 STEVENS CREEK
BOULEVARD (APN: 326-27-043)
SECTION I: PRO ECT DESCRIPTION
Application No.: M-2021-003
Applicant: Related California (Cascade Zak)
Property Owner: 190 West St. James, LLC
Location: 21257 Stevens Creek Blvd. (APN #326-27-043)
SECTION 11: FINDINGS FOR DEVELOPMENT PERMIT:
WHEREAS, the City of Cupertino received an application for a Development Permit as
described in Section I of this :resolution; and
WHEREAS, The Westport Cupertino Mixed -Use Project ("Project"), including the Heart
of the City Exception, is fully described and analyzed in the Initial Study and proposed
Final Environmental Impact Report (State Clearinghouse No. 2019070377) ("EIR" or
"'Final EIR") for the Project; and
WHEREAS, on August 18, 2020, after consideration of substantial evidence contained in
the entire administrative record, the City Council approved the Westport Cupertino
project, by adopting resolutions including the Development Permit Resolution No 20--
106, and Resolution No. 20-105 certifying the EIR, adopting and requiring as conditions
of approval all of the mitigation measures for the Project that are identified in the EIR and
are within the responsibility and jurisdiction of the City, and adopting the Mitigation
Monitoring and Reporting Program for the Project; and
WHEREAS, on October 15, 2021, the applicant submitted and requested the City to
consider modifications to the approved Westport Development project wlvch include
adjusting unit mix in the assisted Irving facility (Building 1) to 123 assisted living units
and 35 memory care rooms, reclassification of approximately 8,000 square feet of public
dining area to private dining, reducing the underground parking to reflect adjustments
in uses, and reduction of massing on the top floor to accommodate a sixth floor aqua
therapy pool; and
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WHEREAS, other than the changes described above, the Development Permit proposes
the same development and public improvements approved in August 2020, covering 8.1
gross acres, and providing for 88 single-family units, and 48 below -market -rate units; and
WHEREAS, the proposed changes to the project would not have any new or
substantially more severe significant envirorunental impacts; and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and on December 7, 2021,
the City Council held a public hearing to consider the Heart of the City Exception; and
WHEREAS, the City Council moved to continue the item to the City Council hearing on
December 21, 2021; and
WHEREAS, the City Council of the City of Cupertino is the decision -malting body for
this Resolution; and
WHEREAS, the applicant has inet the burden of proof required to support the application
for a Development Permit Modification; and
1, The proposed development, at the proposed location, will not be detrimental. or
injurious to property or improvements in the vicinity, and will not be detrimental to
the public health, safety, general welfare, or convenience;
With the conditions of approval and the approved density bones, parking reduction, waivers,
and inceritivelconcession, the project is consistent with the General Plan and Zoning
Ordinance acid has been designed to lie compatible zoilh and respectful of adjoining laird rises.
Additionally, all rrrifigatiou rirerzsitres that are with iii the responsibility aiid jirr isdiction of the
City have been adopted and zoill be inade conditions of approval in order to riritigate potential
impacts to a less than significan( level. The use of rriechrrrrrcal Iifts and valet parking staff will
be conducted in a safe nianner as described in the application as it would rna-irrtain an adequflte
sr.rpply within the project parcel. Tlierefore, the project will not lie clef rin ten tal or irijrrrions to
properties or irnproveinents in the vicinity, and will not be defrirnen.tal to the prrlilic health,
safety, general welfare, or convenience.
2. The proposed development will be located and conducted in a manner in accord with
the Cupertino Comprehensive General Plan and the purpose of the City's zoning
ordinances.
The General Plan land ase designation for the property is ConinierciallResidential, The
proposed 74se is consistent iruth the General Plan. The subject properhj is zoned as Planned
General ConaverciallResidential with a further designation as a Priority Housing Elernient
Site. Projects that propose a densitil above the allocation provided in the Housing Element are
r•equircd to obtain a Conditional Use Perrrril (CLIP), which the project is seeking and subject
to approval, see Condition of Approval (COA) #3 in Section 111. With the conditions of
Resolution No. 21-1 T 8
Page 3
approval acid the granting of the regi4ested exception, the proposed dmeloprlrent has inel Ill.('
applicable develops -neat standards of the Heart t?f the City Specific Plan avid qualifies for iT
density bonds, densittl bonus parking redaction, and certain density boons ivai-ocrs and
irrcerrfitreslconcessions for certain general plan and zoning developrne nt standards as
perrrriffed in the City of Cupertino's Mrinicipal Cone Chapter 19.56 Density Bonus.
Therefore, the proposed development is consistent with the pin -pose of the City's zoning
ordinance.
3. The remaining sites identified in the Housing Element are adequate to meet the
requirements of Section 65583.2 and to accommodate the Cit�,'s share of the regional
housing need. (Findings required by Government Code Section 65863(b)(2).)
The renirairting sites in the hor.rsing element inventory arc adequate to rlreet the reginrernents
r f Section 65583.2 and to occonirirodate the City's share of the regional loftier in coine housing
creed. The proposed project does not reduce the density of the site belortl zoliat was projected in
the Ci(l`s hotisirrg element, the hoitsing element shows a site capacit l of 200 i-inits, wJtereas
267 units are proposed. However, the proposed project inchides only 48 lower income units,
whereas the site was projected to contain 200 lower incoine imits, Nonetheless, the rewairrirrg
sites in the inventory are adequate to accornrrrodale the City's share of the regional lower
income housing creed, in that 1,242r lower incorrae emits have been approved by the City at the
reniainhig hoiising eleinent sites Wallco Shopping District, Marina Plaza, the Hawp tons, r-arrd
the Barry Swenson site), zoell in excess of the 563 rrrrits that wrist be accorn nodntcd to meet
the Citil's share of the regional lousier income horlsing need. The City has approved a total of
3,2092 units on these four sites, also well in excess of the City's allocation of I,064 11nit's to
ineet its total share of the regional housing creed,
4. The applicant has requested a density Lanus. Pursuant to Cupertino Municipal Code
Section 19.56.070, before approving an application that Includes a request for density
bonus, incentive, parking reduction rind/or waiver, the decision -making body shall
make the fallowing findings, as applicable:
a) A finding that the residential project is eligible for the density bonus and any
incentives, parking reductions or waivers requested.
The application is a for a density bomis project that provides for approxinratehl 20% of
its base denial as Below Market fate Hotising. Becarase 12% of the inlits on -Site will
be limited to Ver7, j Low Income seniors, the project is eligible for a 35% density bonds,
parking reduction, waivers, and rip to two (2) incentiveslconcessions. The site is
t Consisting of the following lower income units in approved projects: Vallco Shopping, District, 1.201 units;
Veranda affordable housing (Barry Swenson site), 18 units; Marina Plaza. 10 units; Hamptons, 7 units net.
Consisting of the following total units in approved projects: Vallco Shopping District, 2.402 units: Veranda (Bally
Sweaison site), 19 units; Marina Plaza, 188 units; Hatnpluns, 600 net new units.
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eligible for a density Ironies parking redricti'on tinder Government Coda section
659251pj(2) and Mrrriicipcal Code Section I9.56.040(C) (0,5 space per bedroom), in that
it inchides the inaxinnon nwilber of very lout? incoine iinits and is located within one-
half 17iile of a rnajor tr iinsit stop, with unohstnicted access, as described in the staff
report and Finical FIR.
U} A fielding that the requested incentive(s) or concession(s) will resutt in
identifiable and actual cost reductions based upon the documentation
provided by the applicant and the findings of [lie peer reviewer, if incentive(s)
or concessions) are requested (other than mixed use development).
The applicant has relltrested as a concessroii that all senior BMR nnits be consolidated
in Building 2, rather than dispersed between Brtilding I and Brtilding 2. The City
proposes to expand this concession to allow the applicant to consolidate all BMR snits
in Bicilding 2, rather- than dispersing tl ein throiighotat Building I and the
TownhoaaselRowhorise portion. The expanded coiwession would resrilt in actraal cost
redactors to the project.-. First, Hie cage restricted Buildings I and 2 are realtrired to be
constructed rising different methods and inaterials. As a state -licensed assisted living
facility, Barilding 17ooidd he rerli-Tired to Ire Iriailt as a Type I lriiilding per the State of
Californian dtie to the naattrre of the proposed residents. Building 2 is Tinder no srach
restriction, however, and can be constriicted as a Type IIIA Sprinklered SM Irarilding
for the top five levels arxd Type IA Sprinklered SM for the groitnd floor and connected
parking garage to Building I (Type IA). Therefore, the total cost savings by
consolidating the BMR i.anits in Bitildirtg 2 would be appwxhvately $200,000 per BMR
ainii in constriction casts, Second, there is a stihstiantinl on -going operating cost to
provide the services associated with a state -licensed assisted living.facilihl. These costs
fair exceed the BMR housing allow ancc for reii.I- and utilities rand rep resenI srahs[antial
cost savings if the units were relocated to Building 2 as senior independent living units.
Third, a signs ficant soiiree of funding for of ordoble horasing, which is from the scale of
teal credits, would not be available for the nine BMR units if they were developed in
Briilding 1 as state -licensed assisted living vnits, Higher total financing cost phis the
additional tirrre arxd cost of delay would be inciirred to fill this gap. These costs are waved
by consolidating the BMR anits in BidIdirrg 2 as senior indepoident living rinits.
Fourth, providing BMR tourrrlioi-iselrozarh.oai.se remits would he more expensive than
providing senior 13MR Taints in Bitilding I for a rlitmber of reasons, inclitdirig that the
tor.wrlanirselrowhoIlse units are proposed to be nuich larger than the senior rarrits by
Building I and file applicant would have easier access to affordable finarncing if all
BMR iinits are consolidated in a single Intilding,
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c) If the densi ty bonus is based all or in part on donation of land, a finding that
all requirements included Section 19.56.030C have been met,
The density bon iis is not based orr the donation of lai id, so [lie findiiig is Trot applicable.
d) If the density bonus is based all or in part on the inclusion of a childcare facility,
a finding that all requirements included in Section 19.56.030 (D) have been rnet.
The density horns is not [rased on. t-he incIrrsion of a childcare fricility, so t:he f oiling is
not applicahlr.
e) If the density bonus or incentive is based on a condominium conversion, a
finding that all the requirements included in Section 19.56.030 (E) have been
stet.
The density bontis is nol based on a condoininhan conversion, so the finding is riot
applicable.
f) If the incentive includes mixed -use development, a finding that all
requirements included in Section 19.56.40 (B) (2) have been met.
While the project is a mixed -use developincrrl, the density !orris is not Mused our Me
inixed-rased development as an incentive, so the finding is not applicable.
gj if a waiver is requested, a finding that that the development standards for
which the waivers are requested would have the effect of physically precluding
the construction of the housing development with the density bonus and
incentives or concessions permitted.
BMR Unit Dispersion Waiver, The project applicant regtiesfed a ulaiver of the
regitiretnent that "[1]he BMR units shall be dispersed throtighoiit lire residential
project, " {CMC § 19.56.050G T and BMR Mitigation Manual Section 2.3.4(D)},
insofar as it Tooidd have required BM1: limits to be dispersed in the
Town hotfselRo?ohouse coinpon.ent of the project. However, this uiaiver is not Iiidsti f ed,
There is no evidence that this regnirenient—zohich regaires dispersion of BMR emits,
fait sloes not require the BMR iinits to be senior BMR rinits—zootrld "physically
prechide" the project. Rather, enforcing this requirement zooidd simply reipiire the
applICan t to corrver'l Borne of the e- isting towrihor.tseslrozirhoitses. fr•oin niarkeI rate 1117its
to BMR rinits. While that conversion may have _financial hupacts, those financial
Irrrpacts are not a basis for granting a waiver murder State Density Bontis Ltizo. No
Resolr.rLion No. 21-118
Page G
change is rerlrrired in [lac physical design of the project to dispo—se the BMR t- niFs, The
City has proposed ara expanded concessOn that woitId allow the applicnrzt to consolidate
all BA4R nnits in BidIding 2, rather than dispersing tlrerrr in the TncrrnhortselRowhorrse
portion of the Project.
Height and Slope Setback Waivers: According to analysis prepared by the
arch itectr,rral firm RRM, applying the height and slope setback liadfations would
physically prech4de the project by: (a) decreasing the animint of proposed open space
and landscaped areas below what is otherwise reL1rrrr-ed by the City; (b) reducing the
average size of senior rrrdts; (c) redrrcirrg corrrrrrercial ceiling heights; (d) decreasing
above-grorrrrd parking and increasing rrrrdergrowid parking, Therefore, the
developtrrerrt standards for the slope tine setback arrd height z.vortld phys Wally preclude
the developrnerrt,
While the evidence in the record mpporls these waivers, there is also evidence
suggesting these zonivers could have been sripported as concessions, and City Corrrrcil's
preference 7voidd have been to approve these rrrodifications as concessions.
h) Jf a reduction in off-street parking standards for an eligible housing
development is regr.rested, a finding that all the applicable requirements rn
Section I9.56.040,C have been met, (The project is eligible to provide 0.5 space
per bedroom, which requires at least 11.% very Iow income or 20%, low income
units; within one-half mile of a Major Transit Stop; and Lrnobstructed Access to
the Major Transit Stop.)
The project proposes that 12",, of the iinits on -site will be Iiinited to Veal Lozo Incorare
seniors; it its within I/z rnile of a Major Transit Stop at the intersection of N. Slellirag
Road and Stevens Creek Bor.rlevard, defined, as relevant for this project, as the
intersection of two or more rrrajor brrs routes with a fregatenQ1 of service interval of 15
inintttes or less diming tare morning and afternoon peak coin inrtte periods; and residents
will have r.rrrobstrrrcted access to this major transit stop becat.tse they will be able to
access it without Uncorr.ratering natrrrrrl or constrtrcted irnpedirrrents. At a ratio of 0.5
spaces per bedroan, 243 spaces cor.rld be provided for the residences, malt the project
proponent has elected to provide 320 spaces.
Reasolution No. 21-118
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5, Since the applicable findings required above can be made, the decision -malting body
may deny an application for a waiver only if one of the following wri tten findings as
applicable to each type of application, supported by substantial evidence:
a) That the incentive or concession, or waiver would have an adverse impact on
real property listed in the California Register of Historic Resources; or
There are no affected Historic Resonrces irr the z;icinihl.
b) That the incentive or concession or waiver would have a specific, adverse
impact upon Public health or safety or the physical environment, emd there is
no feasible method to satisfactorily mitigate or avoid the specific, adverse
impact without rendering the residential project unaffordable to low-- and
moderate -income households. For the purpose of this subsection, "specific,
adverse impact" means a significant, quantifiable, direct, and unavoidable
impact, based on objective, identified, written public health or safety
standards, policies, or condifions as they existed on the date that the
application for the residential project was deemed complete; or
As evidenced by thefindings ndings and conchisions of the 1lruvhoninc fal Impact Report,
there exists no significant, grraffliftable, direct, and irrravoidrable irrrprzcts, based orr
objective, ideittPied, written paldic health or safety stairdards, policies, or conditions as
they existed on the date that the application for the residential Project was deernied
corrrplete.
c) rhat the incentive or concession, or waiver is contrary to state or federal law.
The r•egiwsted waivers are not contrary to state orfederal lazo.
6. The applicant is proposing an alternative parking standard pursuant to Cupertino
Municipal Code Section 19.124.040(I), before approving an application that includes
a request for an alternative parking standard, the decision -malting body shall make
the following findings, as applicable:
a) The applicant submits a detailed parking study which demonstrates that the
proposed use is compatible with the proposed parking supply. Adjacent on -
street parking may be included in the parking supply.
The applicant is not proposing to reduce the parking supply as reiMir•ed by CMC
19.124 and 19.56, All parking regraired by the dez)eloprrzent will be accor anodated
onsite. The applicant has dertronstrated that the parking lift zoill be only operational t)jt
staff of the Assisted Lizrirug Fi0lity read zoill be barked by the valet service enrployed by
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the atierators of the In ilding. Die project leas been conditioned that the lifts U)i111re Only I
operated liy the employees of the facilihj.
b) The project is owned or managed by a single entity.
Tlie parking lifts are only avaidalile liy Me residents, staff, and users of file Bnilcliug 1
retail, Tlie alten iative parking standard is applicable to the assisted In ing_ acility only.
cj if adjacent properties are used to share parking, they are in close proximity to
each ether, and reciprocal parking and access easements and maintenance
agreen-tents are recorded on the applicable properties to run with the land.
No adjacent properties utill bG Used to accon niodate [lie parking lift and volr°f services.
All of those services will lie conducted on the saoie parcel as flre assisted living fnellity.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the EIR and the Mitigation Monitoring and Deporting
Program for the Project (EA-2018-04), subject to the conditions which are enumerated in
this Resolution beginning on PAGE 3 thereof, and those contained In all other Resolutions
approved for this Project,
The application for a Development Permit, Application No. M-2021-003, is hereby
approved, and that the conclusions upon which the findings and conditions specified in
this Resolution are based are contained in the Public Hearing record concerning
Application no. M-2021-003 as set forth in the Minutes of file City Council Meeting of
December 21, 2021, and are incorporated l)y reference as though fully set forth herein.
SECTION ill: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPARTMENT.
1. APPROVED EXHIBYFS
Approval is based on the plait set clated December 15, 2021, consisting of 14 sheets
labeled as Westport Cupertino Building 1: Enhanced Senior and Living Project,
GOO — G1, and A10-A31, drawn by Steinberg Hart except as may be amended by
conditions in this resolution.
2, ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations, building setbacks,
property size, building square footage, any relevant easements and/or
Resolu tion No. 21.118
Page 9
construction records. Any misrepresentation of any property data may invalidate
this approval and may require additional review, including any misrepresentation
related to the note on the Vesting Tentative Map that the Tow2-house/Rowhouse
units will be for -sale.
3. CONCURRENT AND PRIOR APPROVAL CONDITIONS
The conditions of approval contained in file nos. EXC-2021-003, and ASA-2021-007
shall be applicable to this approval. The conditions of approval contained in file -nos.
TR-2018-22, TM-2018-03, TM-2021-002, DP-2018-05, U-2019-03, EXC-2019-03 and EA-
2018-04 shall be applicable to this approval unless in conflict with the conditions of
approval of this resolution.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on
the first page of the building plans.
5. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies
with regard to the proposed project for additional conditions and requirements.
Any misrepresentation of any submitted data may invalidate rui approval by the
Community Development Department.
G, DEVELOPMENT ALLOCATION
The applicant shall receive an allocation of 237 of the residential unit allocations
for the Heart of the City Special Area. By requesting only one concession prior to
City Council approval of these first development permits, the applicant has
waived any future claim to a second concession.
7. INDEMNIFICATION
To the fullest extent permitted by Iaw, the applicant shall agree to indemnify, defend
with the attorneys of the City's choice, and hold harmless the City, its City Council,
and its officers, employees, and agents (collectively, the "indemnified parties") from
and against any liability, claim, action, cause of action, suit, damages, judgment, lien,
levy, or proceeding (collectively referred to as "proceeding") brought by a third party
against one or more of the indemnified parties or one or more of the indemnified
parties and the applicant related to any Ordinance, Resolution, or action approving
the project, the related entitlements, enviroiunental review documents, finding or
determinations, or any other permit or approval authorized for the project. The
indemnification shall include but not be limited to damages, fees, and costs awarded
against the City, if any, and cost of suit, attorneys' fees, and other costs, liabilities, and
Resolution No. 21- [ 18
Page ] 0
expenses incurred in corn -section with such proceeding whether incurred by the
Applicant, the City, or the parties Initiating or bringing such proceeding.
The applicant shall agree to (with rut limitation) reimburse the City its actual
attorneys' fees and costs incurred in defense of the litigation. Such attorneys' fees and
costs shall Include amounts paid to the City's oLitside counsel and shall include City
Attorney time and overhead costs and other City staff overhead costs and any costs
directly related to the litigation reasonably incurred by City. The applicant shall
likewise agree to indemnify, defend, and hold harmless the indemnified parties from
and against any damages, attorneys' fees, or costs awards, including attorneys' fees
awarded under Code of Civil Procedure section 1021.5, assessed or awarded against
the indemnified parties. The Applicant shall cooperate with the City to enter a
Reimbursement Agreemelit to govern any such reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any, document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment) if made necessary by
proceedings challenging the project approvals and related environmental review, if
the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business intermphon, punitive, speculative, or consecluerntial damages.
S. NOTICE OF FEES DEDICATIONS RESERVATIONS OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain Fees,
dedication requirements, reservation requirements, and other exactions.
PASSED AND ADOVFED at a regular meeting of the City Council of the City of
Cupertino this 21" day of December, 202I, by the following vote:
Vote Members of the City Council
AYES: Paul, Chao, Moore, Wei, Willey
NOES: None
ASSENT: None
ABSTAIN: None
Resolution No. 21-118
Page 11
SIGNED:
Date
arty Paul, agar
City of Cuper '
ATTEST:
I4irsten Srluarcia, Cif Clerk
Date
1271494,8