Exhibit CC 09-20-2016 Item No. 6 Written CommunicationCC 09-20-2016 Item No. 6
Planning Staff April 26, 2016 Meeting
Planning Commission April 26, 2016 Meeting
Agenda Item #3, still unclear as to the depth of the proposed changes, Municipal Code Amendment,
especially:
Process to Initiate Complaint of Alleged Violation
Complaint by resident to whom?
Complaint by /thru City
City: Planning Staff, Planning Commission, individual Planning Commissioner,
applicable or designated Commission staff or member, City Council,
individual Councilmember, applicable or designated City Council staff or
member, City Manager, Director of Community Development, applicable
Director, applicable Commissioner, code enforcement?
Specific Form?
Dated?
Confidentiality of complainant? to avoid retaliation
Response as to validity of complaint
Access to status of Valid Complaint in its Processing
What violation generates an administrative citation? Other types of Violations?
Types of Violations
Zoning
Building permit
Municipal code
Conditions of approval
Should be available to public
Require Conditions of Approval to be accessible to the public
without the necessity of submitting a public information request
Development Agreement
Should be readily available to public
Require Development Agreements to be accessible to the public
without the necessity of submitting a public information request
Environmental Impact Report (EIR) or CEQA
Mandated Mitigation Measures to be formatted in an easily-read list to be
publicly accessible without a public information request
Specific Plan > presently available
General Plan > presently available
Comment: Is a violation of the above considered an administrative violation.
Planning Commission when decision maker
Other applicable commissions when decision maker
Art
Park & Recreation
etc
City Council
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Comment: Is an action contrary to final decision -making body considered an
administrative violation?
1.10.030 Administrative citation
Comment: Change of code seems to be applicable only to Administrative Violations
for??? Change of code should be specific; see previous and supplement as necessary
1.10.050 Time period within which to correct or remedy violations
Specify time frame
Deadline for specific progress points
1.10.055 Recording of Notice of Violation
Date of registering complaint or when municipal official notes violation?
1.10.060 Administrative citation fines
B. The fine assessed in conjunction with the issuance of an administrative citation
shall be in accord with the California Government Code Section 53069.4 and is
set as follows:
1. First citation -$100.
2. Second citation for the same violation within the same twelve month period -$200
3. Third or any subsequent citation for the same violation within the same twelve month
period -$500
Planning department citation fees
Specific fines/penalties
City Council citation fees
Specific fines/penalties
Avoid City of Palo Alto difficulties with Edgewood Plaza, see below.
1.10.070 Appeal of adminis trative citation
Appeal of planning department citation
Appeal of City Council citation
Appeal by complaintee
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1.10.130 Administrative penalty hearing before the City Council
Planning department penalty hearing before the City Council
City Council penalty hearing before the City Council
1.10.140 Administrative penalties imposed by the City Council
What is difference between administrative violation subject to administrative citation
subject to fines or administrative citation subject to penalty?
What is the difference between administrative violation, violation of a Planning Department
directive, violation of Planning Commission, and violation City Council approval other
than a violation of a municipal entity.
Planning department penalty imposed by the City Council
City Council penalty imposed by the City Council
8. The City Council may impose an administrative penalty in an amount not to exceed
a maximum of $1,000 per day for each violation, except that the total administrative
penalty shall not exceed $100,000 ....
C. If the responsible person fails to correct the violation(s), other enforcement actions
may be pursued by the city. WHAT other enforcement actions?
Comments:
Maximum total administrative penalty of $100,000. There should NOT be a maximum
total administrative penalty or maximum total penalty for any type of municipal violation.
With cost of real estate in millions $per acre and multi-million$ development cost or
multi-billion $development cost, the penalty may be considered the cost of doing
business.
Avoid City of Palo Alto difficulties with Edgewood Plaza and its developer!
Demolition of Historical Structure
see Palo Alto Times article" Edgewood Plaza Work to Proceed Despite Violation"
by Gennady Sheyner dated March 4, 2013.
"By law, the City can issue a fine of about $10,000 for the illegal demolition,
the fine can be raised significantly for a demolition of a historic structure.
Breach of Agreement with City of Palo Alto
see update report by City of Palo Alto, dated August 29, 2015
see City of Palo Alto letter to Property Owner of Edgewood Plaza dated
September 1, 2015.
see update report by City of Palo Alto, dated Friday, April 29, 2016
"A recent accounting of the fees assessed to the property owner
for this violation was $193,250.
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19.08.030 Definition of Retail
Lacking in:
Hyatt Hotel Project
MainStreet Cupertino Development
Office Building #1
Office Building #2
Condition of Approval #8 that "Prior to issuance of building permits,
the applicant shall demonstrate the ground floor retail functionality for
buildings proposed at heights over 45 feet in accordance with the City's
General Plan, to the satisfaction of the Director of Community Development.
The ground floor retail shall be substantial and appropriate size to accommodate the
functionality of retail use. The building frontages of all buildings facing the town
square, including ... the office shall have ground floor retail as illustrated by the plans
in the approved exhibits."
Status of To Be Revised Covenant. Please provide.
Condition of Approval dated 1/23/09 that "Any building(s) proposed at the
northwest corner Stevens Creek and North Tantau Avenue shall have
prominent architectural design enhancements to emphasize the importance of
this corner as the eastern gateway entry to the City including: ...
1.
2.
3.
4 .... "
Has this Condition of Approval been modified? To? When? Please provide.
Definition of Retail
The 2000-2020 City of Cupertino General Plan is very specific.
Figure 20 Maximum Building Heights, "60 feet if there is a retail
component
Policy 2-30 Vallco Park South " Building Heights: Maximum of 60
feet if there is retail component and 45 feet if not."
Discuss the term "retail" instead of menus, other restaurants, square
footage or sales tax/hotel tax.
City acknowledged that it does not have a definition of retail.
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City of Cupertino utilizes the term "retail" in connection with many municipal
connotations:
Ordinance
Parking
Municipal Code
General Commercial Zoning Districts
Table 19.60.030
1. Retail businesses
2. Full service restaurants (without separate bar facilities)
3. Specialty food stores
4. Eating establishments
19.60.050 Land Use Activity
A. 3. The activity must involve direct retailing of goods or services
to the general public . The retailing and servicing activity must
comprise at least fifty percent of the floor space, including
enclosed patio and atrium space, and must represent the
primary emphasis of the business. Window displays shall reflect
the retail emphasis.
General Plan 2005
Building Heights 30 feet, 45 feet, 60 feet
60 feet if there is a retail component
Source: Maximum Building Heights
Figure 2-D Maximum Building Heights
Community Design
General Plan 2000-2020
City of Cupertino
In the recent past, a Councilmember had to use the definition of retail from dictionary
and another councilmember asked whether a vending machine constitutes retail.
General Plan (Community Vision 2015 -2040)
Commercial real estate is commonly divided into 6 categories:
1. Office Buildings
2. Industrial
3. Retail/Restaurant
4. Multi-family
5 . Land
undeveloped land
rural land
infill land within urban area
6. Miscellaneous
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hotel
hospitality
health
Category
Leisure
Retail
Office
Healthcare
Multifamily
Categories of Commercial Real Estate
Examples
Hotels, public houses, restaurants, cafes, sports
facilities
Retail stores, shopping malls, shops
Office buildings, serviced offices
Medical centres, hospitals, nursing homes
Apartments, multifamily housing buildings
What Types of Business are considered Retail?
Restaurants fall under "Food Services and Drinking Places," according
to the U.S. Census Bureau .
What Type of Business is a Restaurant?
... ,the restaurant is in the food service industry.
Also the U .S Census has 2 separate categories:
Retail sales
Accommodation and food services sales
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Use International (Canada, United States and Mexico), Federal (United States),
State of California and Business Guidelines for Definition of Retail.
International
The North American Industry Classification System (NAICS) is the standard used by
Federal statistical agencies in classifying business establishments for the purpose of
collecting, analyzing, and publishing statistical data related to the U.S. business
economy.
for United States, Canada & Mexico
44-45 Retail
721110 Hotels (except Casino Hotels) and Motels
This industry comprises establishments primarily engaged in providing
short term lodging in facilities known as hotels, motor hotels, resort hotels,
and motels. The establishments in this industry may offer food and beverage
services, recreational services, conference rooms and convention services, laundry services,
parking, and other services.
722511 Full Service Restaurants
This U.S. industry comprises establishments primarily engaged in providing
food services to patrons who order and are served while seated
(i.e., waiter/waitress service) and pay after eating. These establishments
may provide this type of food service to patrons in combination with selling
alcoholic beverages, providing carryout services, or presenting live
nontheatrical entertainment.
Federal
Department of Commerce
Table 1 Estimated Monthly Sales for Retail and Food Services
10 Month Total 2014
Retail & food services total 4,322,042 in millions of dollars
Retail 3,848,825
Food services 473,217
Internal Revenue Service/Department of the Treasury
These codes for the Principal Business ... by the type of activity they are engaged
in to facilitate the administration of the Internal Revenue Code. These six-digit codes
are based on the North America Industry Classification System (NAICS).
Accommodation, Food Services, & Drinking Places
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Accommodation
721100 Traveler accommodation (including hotels, motels, & bed &
breakfast inns)
Food Services & Drinking Places
722410 Drinking places (alcoholic beverages)
722511 Full-service restaurants
722513 Limited-service restaurants
Retail Trade
Building materials & garden equipment & supplies dealers
444130-444190
Clothing & Accessories Stores
448130-448190
Electronic & Appliance Stores
44342-443141
Food & Beverage Store
445310-445290
Furniture & Home Furnishing Stores
442110-442200
Gasoline Stations
447100
General Merchandise Stores
452000
Health & Personal Care Stores
446120-446190
Motor Vehicle & Parts Dealers
441300-441120
Sports Goods, Hobby, Book, & Music Stores
451211-451110
Miscellaneous Store Retailers
453920-453990
Nonstore Retailers
454112-454390
"Select the category that best describes your primary business activity. Then
select the activity that best identifies the principal source of your sales or receipts .
Source : Principal Business or Professional Activity Codes
Internal Revenue Code
Annual Retail Trade Survey
1992 through 2012
Accommodation and food services Sector 72
Accommodation Sector 721
Food services and drinking places Sector 722
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State
See Franchise Tax Board/Board of Equalization
See Alcoholic Bureau of California (ABC)
Bank of America
Credit Card Rewards
Business
1 % cash back on retail purchases
2% cash back at restaurants
In spite of the fact that there are international, federal and state definition of the term "retail";
the City of Cupertino is unable to define the term "retail "
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Definition of Setback Area
Existing definition of Setback Area, Required. "Required setback area" means open space,
unoccupied and unobstructed from the ground upward, except as provided in this title,
between the lot line and the setback line on the same parcel.
1. Setback Area, Required Front Yard .... "The Director of Community Development shall
have the discretion to modify the provisions of this definition when it improves the
design relationship of the proposed buildings to adjacent buildings or parcels."
Comment: Define Vending Machine
Although there is a definition of Reverse Vending Machine in the existing Municipal Code,
yet there is NO definition of vending machine in the existing Municipal Code.
There is also no mention of whether a vending machine can be considered retail.
Although it has been asserted that a business entity would not consider a vending machine
as retail in its business plan, there is that possibility.
Comment: Define Concession
Difference between Concession, Density Bonus and Community Benefit
Comment: Define Project; Define Development
Difference between a Project versus Development
Comment: Define Senior Resident
Use of Federal or State of California guidelines?
Fiscal Impact Report (FIR)
Fiscal Impact Report of Project/Development on City, Schools, Police, Fire, Water and
other public infrastructures
To what degree is an applicant obligated to complete its project/development or is
subject to a penalty its financial sponsor reneges upon its financial responsibility?
Important is the example of Sunnyvale Town Center when its applicant's
financial resource withdrew its funding, subject to circumstances beyond the
City's influence, delaying the completion of Sunnyvale Town Center to 2016+.
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