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Exhibit CC 03-31-2016 Item #2NIELSEN MERKSAMER PARRINELLO GROSS & LEONI LLP VIA EMAIL David Brandt City Manager City of Cupertino March 31, 2016 Cupertino City Hall, 10300 Torre Avenue Cupertino, CA 95014 Re: Cupertino Initiative -Ballot Question Dear Mr. Brandt: POLITICAL & GOVERNMENT We are writing on behalf of Cupertino Neighbors, Educators, and the Cupertino Chamber of Commerce for the Sensible and Sustainable Revitalization of Vall co regarding the proposed ballot question for the initiative referred to by its proponents as the "Cupertino Citizens' Sensible Growth Initiative" (the "Initiative"). The ballot question, as currently formulated, fails to meet the legal requirements of the California Elections Code, which requires it to be an accurate and impartial summary of the measure. Please note that this letter in no way or manner suggests that the legal problem with the proposed ballot question was deliberate. To the contrary, as discussed below, it appears that the legal flaw in the proposed question is due to the fact that the serious legal and land use consequences of the Initiative have only just recently come to light through the City's completion and release of the "Elections Code 9212 Report on Proposed Initiative" (the "9212 Report"). Nevertheless, this creates a serious sit~ation that requires the City's prompt attention. The California Elections Code requires a ballot question to be a fair and impartial statement of the chief purpose and points of the measure. (Elec. Code§§ 13119; 9051(c) [the question "shall give a true and impartial statement of the purpose of the measure in such language that [it] shall neither be a n a rgument, nor be likely to create prejudice, for or again s t the SA N FRANCISCO BAY AREA 2350 KERNER BLVD, SU ITE 250 SAN RAFA EL , CA 94901 SACRA MENTO 1415 L STR EET, SUI T E 1200 SACRAMENTO, CA 958 14 LAW ADVOCACY LITIG ATIO N T 415.389.6800 F 4 15.388.6874 T 916.446 .6752 F 916 .446 .6106 NMGOVLAW.COM David Brandt Cupertino City Manager March 31, 2016 Page 2 proposed measure"]; 10403(a)(2) ["The question or proposition to appear on the ballot shall conform to this code governing the wording of propositions submitted to the voters at a statewide election"].) It goes without saying that the accuracy of the ballot question- which is what each Cupertino voter will read on his or her ballot-is critical to protecting the integrity of our electoral process. California courts therefore routinely enforce the legal requirements for accuracy and impartiality because there is a duty to "prevent government action which may tend to influence the outcome of an election." (Citizens for Responsible Gov't. v. City of Albany (1997) 56 Cal.App.4th 1199, 1227.) For this reason, the Elections Code expressly authorizes any elector to file a lawsuit against the City to require revisions to the ballot question in order to comply with the legal standard. (Elec. Code§ 13314.) As currently proposed, the ballot question for the Initiative reads, "Shall an initiative ordinance be adopted amending Cupertino's General Plan to limit redevelopment of the Vallco Shopping District, limit building heights and lot coverages throughout the City, establish new setbacks and building planes on major thoroughfares, and require voter approval for any changes to these provisions?" The above underlined and italicized language violates the legal standard for ballot questions because it is not accurate. The question incorrectly states that the Initiative will "limit" building heights "throughout the City," despite the fact that the City's recently released 9212 Report plainly concludes that the Initiative will: Increase the ma ximum building height from 30 feet to 45 feet in the City's Neighborhoods (parts of the City that are outside of the General Plan's "Special Areas") -a 50 percent(%) increase. Neighborhoods represent approximately three quarters of the City's land area. David Brandt Cupertino City Manager March 31, 2016 Page 3 (See 9212 Report at p. 1; see also p. 2 ["Increase maximum heights in the City's residential neighborhoods from 30 to 45 feet"]; p. 6 ["Increases the maximum building height in the City's Neighborhoods (parts of the City that are "outside of the Special Areas") from 30 feet to 45 feet-a fifty percent increase"].) In fact, the 9212 Report flatly states, "Perhaps the most significant of the Initiative's amendments regarding standards is the provision in the proposed new Policy LU-3.0 that increases maximum building heights for the bulk of the City." (Id. at p. 24.) The proposed ballot question, however, incorrectly states that the Initiative will operate "limit" building heights "throughout the City." In light of the City's 9212 Report alone, this is plain error. We believe that a court would find that the ballot question, as currently worded, is not an impartial and accurate summary of the measure, as required by law, and order appropriate relief against the City. (See, e.g., Amador Valley joint Union High Sch. Dist. v. State Ed. Equalization (1978) 22 Cal.3d 208, 243 ["The main purpose of [the] requirements is to avoid misleading the public with inaccurate information"].) Fortunately, the Elections Code contemplates situations just like this one, where additional information and analysis becomes available between the preparation of the measure's "title and summary" (which appears on the petition) and preparation of the ballot question/ballot label (which appears on the ballot). The Elections Code expressly provides that "[t]he ballot title and summary may differ from the legislative. circulating. or other title and summary of the measure ... " (See Elec. Code§ 9051.) It is therefore not uncommon for changes to be made between these statements, and changes are legally required in cases such as this one. We therefore request the following corrections be made to the proposed ballot question in order to bring it into conformance with the legal standard (new language is in underline and deletions are in strikethrough): David Brandt Cupertino City Manager March 31, 2016 Page 4 Shall an initiative ordinance be adopted amending Cupertino's General Plan to limit redevelopment of the Vallco Shopping District, limit building heights and lot coverages in certain commercial and mixed use areas in throughout the City, increase building heights in the majority of the residential neighborhoods throughout the City, establish new setbacks and building planes on major thoroughfares, and require voter approval for any changes to these provisions? These edits keep the ballot question under 75 words. Most importantly, these simple changes will correct the question so that it is an accurate and impartial statement of the chief purpose and points of the measure, as reflected in the 9212 Report. Thank you for your prompt attention to this important matter. SPW /pas (2 142.04] Sean P. Welch cc: Randolph S. Hom, City Attorney Mayor Barry Chang and City Councilmembers Perl Perlmutter, Shute Mihaly & Weinberger (via email only) Mayor and City Council Cupertino City Hall 10300 Torre Avenue Cupertino, CA 95014-3202 Law Offices of Stuart M. Flashman 5626 Ocean View Drive Oakl and , CA 94618-1533 (510) 652-5373 (voice & FAX) e-mail: stu@stuflash.com March 30, 2016 cc 3/31/16 Item No. 2 Re: Elections Code §9212 Report for Cupertino Citizens' Sensible Growth Initiative Dear Mayor and Council Members: I am writing to you on behalf of my clients, the Cupertino Residents for Sensible Zoning Action Cornmittee and the proponents of the Cupertino Citizens' Sensible Growth Initiative, to comment on your consideration of that measure and the report on it prepared for the Citx pursuant to Elections Code §9212, both agendized for the Council's March 31 1 meeting. My clients believe that the §9212 report contains several factual and interpretive errors that might affect the Council's consideration of the measure. This letter explains and corrects those errors and discusses how the accurate information changes the report's conclusions. Several of the reports errors relate to understanding the function of a general plan, and in particular what it mandates and prohibits. Under California law, the Cupertino general plan acts as a constitution directing future development within the City. The Cupertino Citizens' Sensible Growth Initiative would amend portions of the general plan, deleting some provisions and modifying or adding others. While the general plan is intended to guide the City's future development, it does not dictate the details of exactly how future development will occur. Like a constitution, the general plan sets forth broad principles. Other city documents, including zoning, specific plans , and various entitlements, must be enacted to convert the general plan's policies into more specific actions, and the City, including the City Council, has considerable latitude and discretion in both interpreting and implementing the general plan's goals, objectives, and policies. Under state law, no subsidiary City approvals, including zoning, specific plans, subdivision maps, development agreements, and even use permits or public works projects, may be approved unless they are consistent with the general plan's goals and policies. However, the case law has clarified that consistency only requires only that subsequent approvals must generally further the plan's objectives and policies and not obstruct their attainment. That does not require rigid conformity, only that they be compatible with the objectives, policies, general land uses, and programs specified in the general plan. With this guidance, I want to highlight the places where the report misinterprets or misapplies the initiative. Perhaps the most important misinterpretation is the statement in the report that the initiative will increase the allowable building height in areas outside of the general plan's "special areas" -i.e., in the City's residential neighborhoods -from 30 to 45 feet. This is inaccurate. The initiative does state that in areas outside of the special areas, no building may exceed 45 feet in height. However, that only sets an absolute maximum height. Currently, the general plan is silent on a maximum height outside of the special areas in the Community Form Diagram, LU-1. Those height limits are defined by zoning. While zoning may not be inconsistent with general plan policies, any zoning whose maximum building height was less that 45 feet would be consistent with the initiative. To use an analogy, when the general plan designates an area as "commercial", the zoning enacted for the area can and usually does further restrict the Cupertino Mayor and City Council Cupertino Citizens ' Sensible Growth Initiative March 30 , 2015 type or intensity of development allowed; for example prohibiting placing auto body shops next to residential areas. There is generally no inconsistency in making zoning more restrictive than the general plan Further, even if an area's current zoning deferred to the general plan's height limits, there is nothing in the initiative to prevent modifying that zoning to make it more restrictive. The only limitation the initiative places on these areas is that zoning may not provide for building heights in excess of 45 feet. A second important misinterpretation of the initiative comes from the initiative's eliminating certain mandates in the current general plan for the Vallco Shopping District. For example, the current general plan calls for development strategies requiring a master developer and complete redevelopment of the district. The initiative would eliminate these requirements. It does not, however, prohibit the City from having a master developer, nor from deciding to completely redevelop the district , so long as that redevelopment was consistent wih the requirement that it include no residential or office development and include at least 1.2 million sq. ft. of commercial development. It does require that if a developer wished to make any significant changes in use in the district, the City first approve a specific plan to guide those uses. Hopefully, the City Council would consider that to be good public policy in any case . Many of the other provisions of the initiatives applying to the special areas merely re-enact and therefore prov ide more permanence to policies that are already in effect, such as the setbacks along major thoroughfares. Even in the Housing Element , the initiative only changes the City's strategy from Scenario A in the current general plan to the alternative Scenario B which is also included in the general plan and identified as the strategy to be pursued if the general plan 's current highly ambitious development strategy for redeveloping the Vallco Shopping District proved unsuccessful. That strategy itself, as approved by the City, resulted in reducing the number of residences by 146 units -still providing a generous allowance beyond meeting state mandated housing requirements. The report notes that under state law, some of the housing provided for in Scenario Bis "by right ," meaning no discretionary approvals would be involved , making them exempt from CEQA review. These same provisions were included in Scenario B under the current general plan . Thus if Scenario B were triggered under the current general plan , the same issues would arise. Further, g iven than most of the housing being proposed is "infill," it would generally fall under CEQA's increasingly generous infill housing exemption, so CEQA would not apply whether under scenario A or Scenario B. As the report notes , unless a provision of the initiative directly prohibited compliance with a legal mandate , the City (and City Council) would still have the discretion to correct any deficiency identified by a court. Thus, if there were a challenge, for example , to the absence of some timelines in the housing element, the court could simply order the City to correct the deficiency . Alternatives , since it would not be prohibited by the initiative , the City could proactively , and w ithout the need for a court order, add any required timeline or other provision needed to comply with state law. Finally, it is important to note that the initiative explicitly allows the City to change any requirement it sets forth. All it requires is that any such change be ratified by a vote of the people. Thus , if the Council decides it wants to change any requirement enacted by the initiative , it could place that proposal before the voters for enactment. I hope these comments will help the Council to better understand the intent of the initiative's drafters and supporters. Most sincerely ~ .-b. 7-AZ ~ ~ -~ rr:·A~ Stuart M . Flashman