Exhibit CC 03-01-2016 Oral CommunicationsTo: Cupertino City Council and the Planning Department
From: Cathy Helgerson -CAP -Citizens Against Pollution
Subject: Lehigh Permanente Cement Corporation Land Use Permit No. 23
The Land Use Permit issued by the Santa Clara County in 1939 with Lehigh Permanente Cement
Corporation has been allowed to continue and the conditions of the permit have not been met. The
Permit is open ended and a renewal date was never set which is against the Land Use Permit processes
Santa Clara Zoning Ordinance Chapter 5.65: -In reviewing a renewal application. The renewal process
would have determined if all the conditions were met and would have protected the public from any
noncompliance this was never implemented in order to form a greater control over the pollution at the
Cement Plant. The conditions of the Land Use Permit are clear which states as follows:
WHEREAS: The applicants have given evidence that the plant will be properly operated and all necessary
safeguards will be provided and, WHEREAS: The Planning Commission finds that the use for which said
Use Permit is sought will not, under the circumstances of the case, be detrimental to the health, safety,
morals, comfort, convenience, or welfare of persons residing or working in the neighborhood of such
use and will not, under the circumstances of the particular case, be detrimental to the public welfare or
injurious to property or improvements in said neighborhood, NOW, THEREFORE, BE IT:
The Planning Commission in a special meeting assembled on the 28th day of April, 1939, stated that the
plant be constructed and operated in accordance with the ordinances of the County of Santa Clara, and
in such a manner that dust be controlled in the manner specified in the application heretofore filed with
the Planning Commission and a bond satisfactory to the Board of Supervisors be set in the amount of
fifty thousand dollars ($50,000.00) be posted with the Board of Supervisors for the faithful performance
of these conditions. To date this bond was increased to ($70,000.00) dollars. The failure to comply with
the conditions of the Use Permit and to cease operations upon suspension of the Use Permit will
demand forfeiture the bond. The dust pollution has never been controlled and this matter demands
justice forfeiture of the bond should have taken place long ago and Lehigh should have been closed.
The Lehigh Permanente Cement Land Use Permit was excluded from procedures common to all land use
processes that include use permits and the renewal process which should have taken place would have
investigated if Lehigh was in complete compliance and they were not.
Lehigh should now be subject to further Clean Air Act Rules with the EPA based also on all of the
changes and retrofitting they have done at the Cement Plant but this is not happening they still hide
under a Grandfather Act this is illegal. The continued release of dust a serious violation of the conditions
of the Land Use Permit clearly states what will happen if the conditions are not met. The County failed
to protect the public from the dust and dangerous pollution and also failed to recognize in their
resolution that the Lehigh Permanente Cement Company was detrimental to the public welfare, health
and injurious to property and the persons in the surrounding neighborhoods this continues to today. I
ask that that the City of Cupertino to ask Santa Clara County to investigate this matter and correct this
injustice so that the people can be protected from this serious pollution.
Grace Schmidt
From:
Sent:
To:
Cc:
Subject:
Attachments:
Darrel Lum <drlum@pacbell.net>
Wednesday, March 02, 2016 8:32 AM
City Clerk; City Clerk
e c 3 /1 /; ~
0 '{l_,fr L ~ I
City Council; Barry Chang; Savita Vaidhyanathan; Darcy Paul; Rod Sinks; Gilbert Wong;
Jon.
Statement by Darrel Lum at March 1st City of Cupertino City Council Meeting during
Oral Communications
Mayor Chang re Jon.pdf
Ms. Schmidt, City of Cupertino City Clerk
Please find attached statement for inclusion in the minutes of the March 1, 2016 City of Cupertino
City Council meeting/Oral Communications
Darrel Lum
1
MAYOR CHANG
I WAS PRESENT AT THE FEBRUARY 2N° CITY COUNCIL
MEETING AND REVIEWED ITS VIDEO SEVERAL TIMES.
IT IS DIFFICULT FOR A MEMBER OF THE PUBLIC TO
APPEAR BEFORE YOU. I REALLY DO NOT LIKE PUBLIC
SPEAKING. THE CITY HAS A PROTOCOL TO PREVENT
INTIMATION FROM THE PUBLIC, BUT NOT FROM ITSELF.
I KNOW JON WILLEY. IN FACT, SOMETIMES I ASK JON
FOR HIS DATA BECAUSE HIS INFORMATION IS VERY
ACCURATE FROM HIS THOROUGH RESEARCH.
THANK YOU.
BRIEF STATEMENT BY DARREL LUM AT THE MARCH 1 ST
CITY OF CUPERTINO CITY COUNCIL MEETING DURING
ORAL COMMUNICATIONS
1
Lauren Sapudar
Subject:FW: Speech for March 1 Council meeting
From: Liang C [mailto:lfchao@gmail.com]
Sent: Wednesday, March 02, 2016 11:34 AM
To: City Clerk
Subject: Speech for March 1 Council meeting
Here is the speech we gave last night (March 1) during Oral Communication.
Please put it into record. Thanks.
-------------------
SPEAKER 1: Peggy
The Committee supporting Cupertino Citizens' Sensible Growth Initiative is hereby requesting a special meeting to be
held before March 10 to put the Sensible Growth Initiative on June Election, as prescribed by California Elections
Code for the initiative process. We are sure that the Council would not want to be a barrier to keep Cupertino citizens
from having an open and frank discussion on citywide growth issues and the initiative during the period leading up to
the June election without distraction.
The Committee is grateful for the outpouring support at the Feb. 2 Council meeting and wonderful speeches by many
initiative supporters whom we have not met before. We thank the many initiative supporters again for coming here
tonight.
We are happy to announce that the Registrar of Voters has certified that Cupertino Citizens' Sensible Growth Initiative
has received well more than 10% of signatures of Cupertino registered voters, which will be presented in Agenda Item
23. However, we'd like to address a matter that's NOT on the agenda: The issue of whether the Sensible Growth
Initiative is qualified for June Election or has to be pushed to Nov. to be on the same ballot as the presidential election
and many other state measures.
According to California Elections Code, the Sensible Growth Initiative qualifies for the next "municipal's regular
election". Since Cupertino doesn't have its own election code, the state election code applies. According to California
Elections Code, both June election and Nov. election in 2016 are regular elections. Therefore, the Sensible Growth
Initiative qualifies for June election, which is a regular election.
Everyone who supports to place Sensible Growth Initiative on June election, please raise both of your hands. Thank
you.
----------------------------------------
SPEAKER 2: Liang
I’d like to continue to address a matter that's NOT on the agenda: The issue of whether the Sensible Growth Initiative
is qualified for June Election or whether June election is a regular election.
Regular election and general election are two distinct terms. Regular election means reguarlarly scheduled election
and general election means an election where representatives are elected.
The City and its outside counsel argued that June election is not a regular election in Cupertino; thus the Sensible
Growth Initiative is not qualified for June election. However, Cupertino doesn’t have any code to define “regular
election”. Thus, the state election code applies.
The city’s argument is based on a section of Cupertino Municipal Code, which states that the city’s general election
(City Council election) is in November of even-numbered year. Then, the city argues that only November election is a
regular election. In doing so, the city mixed up the term "general election" with the term "regular election" by mistake.
2
California Elections Code has two different sections that define "regular election" and "general election" individually. It
is clear that the two terms are NOT interchangeable. The Cupertino Municipal Code doesn’t apply to regular election.
Therefore, the Sensible Growth Initiative qualifies for June election, which is a regular election.
The outside counsel retained by the City attempts to argue that "regular election" and "general election" are equivalent
using a precedent from 1899 (117 years ago). However, the California Elections Code wasn't adopted until 1939 (only
77 years ago) and "regular election" and "general election" have two distinct definitions in California Elections Code.
It is clear that the Sensible Growth Initiative qualifies for June election, the next regular election.
--------------------
SPEAKER 3: Brooke
On behalf of the Committee supporting Cupertino Citizens' Sensible Growth Initiative (CCSGI), we’d like to requesting
a special meeting to be held before March 10 to put the Sensible Growth Initiative on June Election.
City Council members. You owe it to more than 4000 citizens who signed the petition for the initiative. You owe it to
more than 2000 citizens who signed our initiative the last week because the citizens wanted to make it possible to put
our initiative on Cupertino’s June election ballot.
Many citizens will be upset with the city's arbitrary interpretation of the law and municipal code in mixing up the the
term "general election" with "regular election," which are separately defined under the California Election Code. Please
correct the misinterpretation and declare that Cupertino Citizens' Sensible Growth Initiative qualifies for the June
election as it specified under California Elections Code.
The Initiative committee recognizes that the City Council would not adopt the Sensible Growth Initiative as it is written,
regardless of the content of the 9212 impact report. Therefore, any insistence on waiting for the completion of the
9212 impact report only adds meaningless delay to the democratic process. We are sure that the Council would not
want to be a barrier to keep Cupertino citizens from having an open and frank discussion on citywide growth issues
and the initiative during the period leading up to the June election without distraction from national and regional
issues.
We respectfully request that the Council call a special meeting before March 10 to discuss the logistics necessary to
put the Sensible Growth Initiative on June election.
Grace Schmidt
From:
Sent:
To:
Subject:
Attachments:
Dear Ms. Schmidt,
ignatius.ding@gmail.com on behalf of Ignatius Ding <Ignatius@sbcglobal.net>
Wednesday, March 02, 2016 5:23 PM
City Clerk
Presentation slides for the Council meeting last night
03-01-16_Initiative-Voted-in-June16.pdf; 03-0l-16_Initiative-Voted-in-June16
_Handout.pdf; 03-01-16_Notes for the Presentation at City Council.pdf
Attached please find a copy of presentation delivered during the oral commission at the Gmncil
meeting last night. Please include it for the meeting record. The speakers were as follows:
Speaker 1: Phyllis
Speaker 2: Ignatius
Speaker 3: Howard
Speaker4:\Xi'enguan
Thank you.
Regards,
Ignatius Y Ding
1
Page2
Notes for the Presentation on Initiative Measure at City Council
March 1, 2106
California Election Code cited by the Staff Report:
"§1405(b) The election for a municipal initiative that qualifies pursuant to
Sec. 9215 shall be held at the jurisdiction's next regular election."
Page3
The Cupertino Municipal Code §2.04.005 was incorrectly quoted from the
section titled "Council Election and Meetings" and misrepresented by the Staff Report
since it specifically states:
"General municipal elections shall be held on the first Tuesday after the first
Monday in November of even-numbered years to coincide with the statewide
general elections."
Page4
Here is a screenshot of the Cupertino Municipal Code captured online.
Page 5
This is not a matter of misinterpretation of the State Election Code or the
Cupertino Municipal Code. Please note that:
(1) A wrong municipal code was used as the basis for the staff recommendation;
(2) The content and wording of a critical provision in the Municipal Code was
unlawfully altered to change the entire meaning of the election law.
1
Page 6
Notes for the Presentation on Initiative Measure at City Council
March 1, 2106
City's outside attorney Mr. Robert Perlmutter cited in his letter to the attorney, Mr.
Holder who represents the residents, regarding the interpretation of the relevant Election
Codes at the state and city levels as follows:
As the California Supreme Court long ago explained, a '"[r]egular
election' ... is synonymous with [a] 'general election."' People ex rel Webster v.
Babcock (1899), 123 Cal. 307, 311-12; see also Elec. Code§ 323 (defining
"general election" to mean, among other things, "[a]ny statewide election held
on a regular election date as specified in Section 1000").
First of all, the case precedent set by the California Supreme Court was, as indicated by
Mr. Perlmutter, is a very old ruling in 1899 (117 years ago) which should not be applied
to the current case, because:
(l)The Cupertino Municipal Code §2.04.005 noticeably did not use "regular"
but used "general." Mr. Perlmutter cited the 1899 CA Supreme Court case,
but that ruling was LONG before the enactment of the California Election
Code in 1939. That is, the meanings of "general" and "regular" have been
changed --particularly, they have been codified since then in GREAT
DETAILS in California Election Code Sec. 300-362. In essence, the California
legislature clarified the difference between the "general election" and "regular
election" after the 1899 CA Supreme Court case ruling, thereby makes the
"definition interchangeability" argument obsolete. Those definitions in the
Election Code should have overruled the earlier case law.
2
Notes for the Presentation on Initiative Measure at City Council
March 1, 2106
Evidently, there was NO PUBLISHED LOWER COURT CASE citing the
1899 California Supreme Court case in 117 years. Statistically speaking--total
cases citing: only one California Supreme Court case (a 1901 case-predating the
enactment of the California Election Code), one unpublished appellate case,
and five out-of-state cases.
(2) The 1899 ruling stated clearly that the interchangeability of the definition of
"general election" and "regular election" (as defined in Section 1000) only
applies to "[a ]ny statewide election held on a regular election date as specified
in Section 1000" quoted in the letter by Mr. Perlmutter as shown above.
However, Mr. Perlmutter has also argued the initiative election "shall be held at
the j7:1risdiction 's next regular election," not a statewide election. (See
Paragraph 4 on Page 3, Perlmutter to Holder letter).
The precedent might be either applicable to a statewide election, which could
be either June or November in even-numbered years, or it might NOT be
applicable to any municipal election which Mr. Perlmutter insists that it is in
Cupertino. For the latter, the specific language in the Cupertino Municipal
Code must stand and not to be arbitrarily altered.
In either case, (a) the initiative election could be held in June or November
since it is codified in the statewide election; or (b) the language of the
Cupertino Municipal Code (re: C.M.C. §2.04.005), amended in 2013,
stipulating to hold a general municipal election for council election as a regular
election in even-numbered years in addition to the one in November shall
overrule the 1899 CA Supreme Court case ruling, and hold an initiative election
in either June or November which both are "regular election" in accordance to
Cupertino Municipal Code in its entirety.
3
Page7
Notes for the Presentation on Initiative Measure at City Council
March 1, 2106
In addition, the outside counsel's argument regarding Election Code § 1003 was
questionable.
Section §1003 says: "This chapter shall not apply to ... County, municipal
initiative I referendum, or recall elections." But only that, nothing more.
It does NOT PROHIBIT it either.
But clearly the "shall not apply to" doesn't mean prohibition, as the letter argues.
In other words, Section §1003 does NOT PROHIBIT treating a statewide regular
election as a municipal regular election.
Page8
Therefore, that provision does NOT preclude the possibility that Cupertino can
have TWO regular scheduled elections in even-numbered years (June and November)
as the rest of the state of California.
The election of a municipal initiative can be held on either June or November
of even-numbered years.
4
Page9
Notes for the Presentation on Initiative Measure at City Council
March l, 2106
The Staff Report: "Where a proposed initiative measure contains sufficient
signatures to qualify for a regular election, the City Council has three options."
Option#2: "Submit the initiative exactly as proposed, to the voters at the City's
next regularly scheduled election" which will be June 7, 2016.
Page 10 & 11
The Elections Code only provides for a 30-day period for preparing the report
authorized by Section 9212. More than 30 days have already elapsed since the
Council ordered the report.
Contrary to the assertions in the staff report, the Council need not wait until the
report is completed before it issues its order of election.
The ordered fiscal assessment report is a factor only if the City Council decides to
ADOPT the initiative as is. Otherwise, the report will only supply an analysis to the
Council for forwarding to the County for placing in the Voter Information Brochure as
reference material.
It is not to be used as the basis to reject an initiative which the Council is not
authorized to do by the California's Municipal Initiative Election Code.
Delaying presentation of the report until the end of March will unduly interfere
with the initiative process as contemplated by the state statute.
The ballot measure must be moved forward NOW.
5
Page 12
Notes for the Presentation on Initiative Measure at City Council
March 1, 2106
We are fully aware the complexity of the issues involved in this part of the
Municipal Initiative Process and we are equally concerned of the fate of the proposed
initiative that has unparallel consequences in the life of all Cupertino residents ever since
the incorporation of the city in 1955.
Many of the relevant legal issues and opinions have surfaced in the last 3 days
since the City posted the Staff Report ahead of this council meeting with the last and
most controversial one presented by City's outside counsel in the last 24 hours.
The attorneys representing the resident group and the city have responded and
exchanged various legal opinions in response to the request submitted by the "Cupertino
Citizens for Sensible Zoning" -the proponent of the CCSGI measure -to place the
qualified initiative on the June 7 Primary ballot.
We certainly understand that the Council will need to take time and effort to
examine the views presented by proponents and opponents regarding the legality of
arguments. Presumably, the Council would need to consult with the city attorney and
outside legal counsel to make a determination as to how to pursue this matter.
As the deadline (March 11, 2016) for submitting this initiative to the county
approaching, we respectfully request the council to call for a special meeting to consider
this ballot issue on or before March 7, 2016 while research and discuss the related issues
with your staff and legal professionals.
Please respect and honor the will and the constitutional rights of the people in
Cupertino and the hard work of many of the volunteers who support this citizen initiative
from the very beginning of this long and tedious process. Most of them are parents of
local middle and elementary schools and 1ong-time residents in our beloved city.
Thank you.
6
' '
California Election Code
&
Initiative Measures
Statewide and Municipal
Regular & Special Elections
Cupertino Municipal Code §2.04.005
stipulates:
"General municipal elections shall be
held on the first Tuesday after the first
Monday in November of even-numbered
years to coincide with the statewide
general elections." (incorrectly quoted from
the section titled "Council Election 111111.d Meetings"
and misrepresented by the Staff Report)
This is not a matter of misinterpretation
of the State Election Code or the Cupertino
Municipal Code.
It's: (1) a wrong municipal code was used
as the basis for the staff recommendation;
(2) the content and wording of a critical
provision in the Municipal Code was
unlawfully altered to change the entire
meaning of the election law.
California Election Code cited by
the Staff Report:
"§1405(b) The election for a municipal
initiative that qualifies pursuant to Sec.
9215 shall be held at the jurisdiction's
next regular election."
Cupertino Municipal Code
Screenshot
Source: www.cupe1tino.org
Sectfoi!!~-_f~!D:!D:~!!!~~~~!!-~~M~!fungs
'JCHAPTER 2.04: CITY COUNCIL-ELECTION
AND MEETINGS*
W 2.04.005 Eh:dhms.
(fonernJ muuicipnl d<!t.1ions Mall ho held 011 tho first Tues.day llfl:er the
fir..t Mond11y hi November of even-numbcr.:d year.; to colnddewi1h. th.:
!iUlll!wida ~lll1rnl cll!ctic•ns. (Ord. lJ.2106, § 4. 2013; Ord. J 697, (p~rt),
pMsed--1995)
Re: the 1899 C1111ifornia Supreme Court c111se --
there are NO PUBLISHED LOWER COURT
CASE citing it. Totally 7 cases citing, one CA
Supreme Court case (1901 case), one unpublished
appellate case, and five out-of-state cases.
No other lower courts in CA had EVER cited it in a
published opinion. WHY?
Various types of election were first codified into
laws by the State Legislature in Feb. 1939. The
definitions in the Elec. Codes therefore overrule the
precedent set by the 1899 CA Supreme Court case.
1
The outside counsel's argument regarding
Election Code §1003 was questionable. Sec.
§1003 says: "This chapter shall not apply to
... County, municipal initiative I referendum,
or recall elections." But only that, nothing
more. It does NOT PROHIBIT it either.
But clearly the "shall not apply to" doesn't
mean prohibition, as the letter argues -in
other words, §1003 does NOT PROHIBIT
treating a statewide regular election as a
municipal regular election.
The Staff Report: "Where a proposed
initiative measure contains sufficient
signatures to qualify for a regular election,
the City Council has three options."
Option#2: "Submit the initiative exactly
as proposed, to the voters at the City's
next regularly scheduled election" which
will be June 7, 2016.
The ordered fiscal assessment report is a
factor only if the City Council decides to
ADOPT the initiative as is. Otherwise, the
report will only supply an analysis to the
Council for forwarding to the County for
placing in the Voter Information Brochure
as reference material. It is not to be used
as the basis to reject an initiative which
the Council is not authorized to do by the
California's Municipal Initiative Elec. Code.
Therefore, that provision does NOT
preclude the possibility that Cupertino can
have TWO regular scheduled elections
in even-numbered years (June and Nov.)
as the rest of the state of California.
The election of a municipal initiative
can be held on either June or Nov. of
even-numbered years.
The Elections Code only provides for a 30-day
period for preparing the report authorized by
Section 9212. More than 30 days have already
elapsed since the Council ordered the report.
Contrary to the assertions in the staff report, the
Council need not wait until the report is
completed before it issues its order of election.
Delaying presentation of the report until the end of
March will unduly interfere with the initiative
process as contemplated by the state statute. The
ballot measure must be moved forward NOW.
Please respect the will of the
Cupertino residents and
follow the laws. Place the
CCSGI measure on the
June 7th Ballot.
2
California Election Cooe
Initiative Measures
tatewide and Municioal
gular & Suecial Elections
California Election Code cited by
the Staff Reuurt:
"§ 1405(b) The election for a municipal ·
initiative that qualifies pursuant to Sec.
9215 shall be held at the jurisdiction's
next regular election."
March 1, 2016 California Election Code 2
Cupertino Municipal Code §2.04.005
stipulates:
"General municipal elections shall be
held on the first Tuesday after the first
Monday in November of even-numbered
years to coincide with the statewide
general elections." (incorrectly quoted from
the section titled ''Council Election and Meetings''
and lllisrepresented by the Staff Report)
March 1, 2016 California Election Code 3
Cupertino Municipal Code
Screenshot
Source: www.cupertino.org
Section: Council lection and Meetings
March 1, 2016
CHAPTER 2 .. 04: CITY COUNCIL-ELECTION
AND MEETINGS*
2.04.005 Elections.
General municipal elections shall he held on the first Tuesday after the
first Monday in Nove1nber of even-numbered years to coincide with.the
statewide general elections. (Ord. 13-2106, § 4, 2013; Ord. 1697, (part),
passed --1995)
California Election Code 4
This is not a matter of misinterpretation
of the State Election Code or the Cupertino
Municipal Code.
It's: (1) a wrong municipal code was used
as the basis for the staff recommendation;
(2) the content and wording of a critical
provision in the Municipal Code was
unlawfully altered to change the entire
meaning of the election law.
March 1, 2016 California Election Code 5
Re: the 1899 California Supreme Court case --
there are NO PUBLISHED LOWER COURT
CASE citing it. Totally 7 cases citing, one CA
Supreme Court case (1901 case), one unpublished
appellate case, and five out-of-state cases.
No other lower courts in CA had EVER cited it in a
published opinion. WHY?
Various types of election were first codified into
laws by the State Legislature in Feb. 1939. The
definitions in the Blee. Codes therefore overrule the
precedent set by the 1899 CA Supreme Court case.
March 1, 2016 California Election Code 6
The outside counsel's argument regarding
Election Code §1003 was questionable. Sec.
§1003 says: ''This chapter shall not apply to
... County, municipal initiative I referendum,
or recall elections." But only that, nothing
more. It does NOT PROHIBIT it either.
But clearly the ''shall not apply to'' doesn't
mean prohibition, as the letter argues -in
other words, §1003 does NOT PROHIBIT
treating a statewide regular election as a
lllunicipal regular election.
March 1, 2016 California Election Code 7
Therefore, that provision does NOT
preclude the possibility that Cupertino can
have TWO reKular scheduled elections
in even-numbered years (June and Nov.)
as the rest of the state of California.
The election of a municipal initiative
can be held on either June or Nov. of
even-numbered years.
March 1, 2016 California Election Code 8
The Staff Report: "Where a proposed
initiative measure contains sufficient
signatures to qualify for a regular election,
the City Council has three options."
Ontion#2: "Submit the initiative exactly
as proposed, to the voters at the City's
next regularly scheduled election" which
will be June 7, 2016.
March 1, 2016 California Election Code 9
The Elections Code only provides for a 30-day
period for preparing the report authorized by
Section 9212. More than 30 days have already
elapsed since the Council ordered the report.
Contrary to the assertions in the staff report, the
Council need not wait until the report is
completed before it issues its order of election.
Delaying presentation of the report until the end of
March will unduly interfere with the initiative
process as contemplated by the state statute. The
ballot m.easure m.ust be moved forward NOW.
March 1, 2016 California Election Code 10
The ordered fiscal assessment report is a
factor only if the City Council decides to
ADOPT the initiative as is. Otherwise, the
report will only supply an analysis to the
Council for forwarding to the County for
placing in the Voter Information Brochure
as ref ere nee material. It is not to be used
as the basis to reject an initiative which
the Council is not authorized to do by the
California's Municipal Initiative Blee. Code.
March 1, 2016 California Election Code 11
Please respect the will of the
Cupertino residents and
follow the laws. Place the
CCSGI measure on the
June 7th Ballot.
March 1, 2016 California Election Code 12