Draft Minutes 10-26-10 CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
CITY OF CUPERTINO PLANNING CONIlVIISSION
DRAFT NiINUTES
6:45 P.M. October 26, 2010 TiTESDAY
CUPERTINO COMMUNITY HALL
The regular Planning Commission meeting of October 26, 2010 was called to order at 6:45 p.m. in
the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, California, by Chairperson Paul
Brophy.
SALUTE TO THE FLAG
ROLL CALL
Commissioners present: Chairperson: Paul Brophy
Vice Chairperson: Winnie Lee
Commissioner: Lisa Giefer
Commissioner: David Kaneda
Commissioner: Marty Miller
Staff present: Community Development Director: Aarti Shrivastava
City Planner: Gary Chao
Senior Planner: Aki Honda Snelling
Associate Planner: Piu Ghosh
City Attorney: Carol Korade
APPROVAL OF MIlVUTES
October l2, 2010 Planning Commission meeting:
Motion: Motion by Com. Kaneda, second by Vice Chair Lee, and unanimously carried
5-0-0 to approve the minutes of the October 12, 2010 meeting as presented.
WRITTEN COMMUNICATIONS: Chair Brophy noted receipt of a letter of appreciation from
Brian Avery regarding the Oaks Center application at the previous Planning Commission meeting.
POSTPONEMENTS/REMOVAL FROM CALENDAR
3. MCA-2010-06 Municipal Code Amendment to Chapter 19.48 (Planned
City of Cupertino Development) to be consistent with the 2010 Housing Element.
Citywide Location Postponed to the November 9, 2010 Planning Commission meeting.
Tentative City Council date: January 2011
Motion: Motion by Com. Kaneda, second by Vice Chair Lee, and unanimously carried
5-0-0, to postpone Application MCA-2010-06 to the November 9, 2010 Planning
Commission meeting.
Cupertino Planning Commission 2 October 26, 2010
ORAL COMMUNICATIONS
Charles Bateh, Co-owner of Bateh Brothers Liquor Store, Cupertino:
• Spoke regarding the current sign ordinance limiting advertising signs to 25% of the window
space of the businesses. He expressed concern that drivers passing by on Stevens Creek and
Foothill Boulevard cannot see those signs at 25% coverage; and requested that businesses in
general be allowed more freedom in maximizing their marketing mi�c, particularly in the
current difficult economy. ,
• He requested that businesses be allowed to use 65% of the window space for advertising space.
He said they have been in business in the current location for 33 years and because of one
neighbor's complaint, they have to reduce their window advertising space coverage.
Aarti Shrivastava, Community Development Director:
• Said that the city enforces code enforcement on a complaint basis, and once they determine
that somebody is not complying with the sign ordinance, code enforcement is used: She noted
that the sign ordinance was reviewed and last year and the window section of the code remains
at 25%; with no grandfathering clauses. She said staff would be willing to talk to the
applicants about what can be done within the limits of the sign ordinance.
George Bateh, Co-Owner of Bateh Brothers Liquor Store:
• Expressed concern that they were not permitted to place neon signs in the window which
indicate that the store is a liquor store and mini mart, which makes it difficult to compete in a
difficult economy. He said he went to the Planning Departrnent and paid a$100 deposit for
banners. He said he felt it was unreasonable not to allow beer neon signs on the windows to
promote sales in such a difficult economy.
Vice Chair Lee:
• Said they could apply for an exception and if no objections were received from neighbors, the
exception could possibly be granted.
CONSENT CALENDAR None
PUBLIC HEARING
1. M-2010-07 Modifications to a previously approved Use Permit (U-2008-07
Dipesh Gupta to reduce the amount of parking spaces including reductions in
(Shashi Corporation) the restaurant and conference areas for a proposed 138-room hotel
10165 N. DeAnza Blvd. Tentative City Council date: November 1, 2010
Colin Jung, Senior Planner, presented the staff report:
• Reviewed the application for a previously approved Use Permit to reduce the number of
parking spaces, conference area, restaurant and bar area and eliminate the green building
requirement for an approved hotel; as outlined in the staff report.
• He reviewed the original hotel approval, proposed modifications which include less proposed
parking spaces and elimination of the swim pool requirement; and would result in a
reorganization of the interior space of the hotel and the elimination of one level underground
parking which was approved for 2 levels. No earterior changes aze proposed to the above
ground hotel structure; however, the applicant is requesting flexibility with the modifications
in the event that the construction financing environment improves over the coming year. The
applicant is requesting the flexibility to construct the original full service hotel; a condition has
Cupertino Planning Commission 3 October 26, 2010
been placed in the resolution allowing the Director of Community Development to institute the
change upon the applicant's application for a minor modification.
• He summarized the parking survey conducted by Hexagon Transportation Consultants,
detailed in the staff report and noted the parking study was also included in the staff report.
• The applicant is also requesting deletion of the requirement for LEED silver application
because of the additional costs; however, he states that he still intends to build an energy
efficient hotel but not go through the LEED building certification process. Mr. Jung noted that
the Draft Building Ordinance would still require the LEED Silver certification on the hotel if
the building permit was not on file before the ordinance became effective.
• Staff recommends that the Planning Commission require as part of the model resolution,
providing parking for the hotel at a ratio of 0.70 space per guest room up to 138 guest rooms to
give the applicant the option of reducing the number of hotel rooms in order to achieve that
ratio determined by the parking consultant. Staff recommends that the provisions be retained
for special parking arrangements far tandem and lift parking because they do not feel the
applicant will be able to provide all the parking at the .070 ratio on one underground level of
parking. Staff does not recommend valet parking, as it is characteristic of a full service hotel.
Staff recommends a revision to allow the Director to revoke the modification and restore the
original Use Permit if the original permit has not expired.
Staff answered questions about the application.
Dipesh Gupta, Applicant:
• Highlighted the areas which were proposed to be modified and those which will remain the
same. Last year the hotel was approved for 138 rooms with 82,000 sq. ft. of building size and
a timeless design; they are not proposing any changes to the look and feel of the hotel.
• Said it was originally approved as a full service hotel, with relatively large restaurant and
meeting spaces for public use. The new proposal is to change from a full service hotel, to
limited restaurant and meeting spaces to serve the hotel guests, which will reduce the parking
requirements. The second change is the requirement for LEED silver certification; because of
the significant time and cost associated with the application process, applicant is requesting a
waiver to on the certification process for LEED silver. No changes in the scope are proposed,
the hotel will still be built as a highly energy efficient hotel.
• He urged the Planning Commission to consider the parking ordinance given the fact that Alves
allows parking on both sides. If required, they will provide valet parking, which would
increase the pazking capacity by 20%; if .60 parking space and valet pazking is provided, it
would bring the parking space up to .72 parking space. Said he understood staff concerns
about valet parking, but it is more of an operational challenge for them to provide valet
parking; the hotel guests usually like the opportunity to have valet parking, and they are
willing to add that as a condition, that if the need be, they would offer valet parking. He said
that the hotel would also provide shuttle service for its guests. He provided examples of
successful valet parking services in local hotels and restaurants. He said there was no
adjustment in the parking space given the unique location of the hotel.
• He urged the Planning Commission to consider the options.
Chair Brophy:
• Said he found it difficult to see how they could get by without the same amount of parking as
Hilton Gardens, Cupertino Inn or Marriott Courtyard. It is still a suburban location, virivally
all of their overnight guests would be arriving by rental car or coming from a few hours away
in their own car; why would it work with a.60 unlike the other hotels.
• Said that if he took a business trip to the city, he would likely take a taxi to the city and use
mass transit or taxi around the city; however, Cupertino is a suburban community and he
Cupertino Planning Commission 4 October 26, 2010
could not imagine flying into San Jose and taking a taxi to the hotel in Cupertino and not
having a rental car. He asked for insight on why the applicant would think it would be
different here as opposed to sites that are a few blocks away.
Dipesh Gupta:
• Said they believe that if they put the Hilton Garden Inn in their proposed location, it would
reduce the need for hotel guests to have their own car.
• He said while working in the high tech industry he traveled extensively and one of the most
compelling propositions of a hotel was the ability to walk to restaurants and offices and avoid
the cost of renting a car.
• Said that people staying at their hotel would likely walk to Fontanas or Peets Coffee in the
morning, or some of the buildings within walking distances; whereas the guests at the Hilton
Garden Inn would not likely walk to the restaurants or coffee shops. Their hotel is located next
to Apple HQ and Stevens Creek Center, and close to the best restaurants and cafes in
Cupertino, which negates the need for a car. In addition, the hotel will provide a
complimentary van shuttle for guests.
Chair Brophy opened the public hearing.
Sam Wood, Cupertino resident:
• Referred to the parking issue, Page 1-3 of the Parking Survey, and said that the math does
matter. Saturday, the Cupertino Inn had 91 occupied rooms and 74 occupied spaces; which is
more than .80 spaces for each occupied room. The question is not averages; the question is at
some point how many cars are going to be beyond the 72 spaces proposed. If they filled their
138 rooms, .8 x 138 = 112 cars looking for spaces, which is 40 more cars than there are spaces.
If you look at the map presented earlier, there is a some space up and down Alves, that space is
often full especially by cars that go to YMCA; and the remaining is just private parking spaces
except across DeAnza, then the residences which is where the cars will end up.
• The residents have a right to be concerned about this idea; in difficult economic times you
have to make money, but don't do it at the expense of the value of the homes in the area.
• He said without a study, he did not think it is a reasonable conclusion to think that for some
reason the area would require less parking. Without a study, don't conclude that Alves is just
wide open parking never being used by all those people trying to find a parking space for the
YMCA and the shopping center.
• He concluded by asking that the Commission go with the original city rules; the other two
hotels similar in scope to what is being proposed both have a ratio of parking spaces to hotel
rooms of .9; it is not fair to break that precedent for this hotel.
Com. Miller:
• Said he disagreed with Mr. Wells' assumptions regarding the parking, since people staying at
the hotel on the weekend would more likely be driving their own cars, and during the week it
would not be the same for business guests.
Jennifer Griffin, Rancho Rinconada resident:
• Said that the proposed location for the hotel was not a bad location and there were others
proposed for the city. She said however, that she did not want to live in a city where she had
to worry about where to park her car. She said they need to be sensitive and make sure they
don't compromise anything for Cupertino residents; the city needs banquet facilities and on the
weekends, residents could use the hotel also.
Cupertino Planning Commission 5 October 26, 2010
• Asked if they would consider having a spa since they were eliminating the swim pool. She
said they need to proceed cautiously and she hoped that the hotel will be successful at that
location.
Chair Brophy closed the public hearing.
Com. Giefer:
• Asked what the applicant's rationale for removing the LEED silver process was.
Dipesh Gupta:
• Said if they keep the same scope, it costs significantly more to complete the paperwork; a third
party consultant would have to be hired, and there are many additional costs built in, plus more
time; however, it does not impact the product. They are still committed to the things that have
been approved; they are not changing the scope which is making the building more efficient.
They are still considering solar panels, a key to turn off the energy supplies when the guest
checks out, etc. The certification is an added burden on the project which impacts the financial
feasibility, but does not necessarily increase the value or make the hotel more efficient. Said an
estimate in difference in costs, is at least $100,000 on the project, just by applying for the
certification process even if everything else remains the same.
Walker Wells:
• Said that the building ordinance for 2011 only addressed bicycle parking, not automobile
parking.
Gary Chao, City Planner:
• Said that along the adjoining frontage of Alves Avenue 20-22 parking stalls could be
accommodated, considering there is a certain portion of the project frontage devoted to fire
truck parking in event of emergency. Also, there are many curb cuts throughout the segment of
the portion of the street referred to.
Dipesh Gupta:
• Relative to valet parking, he said that 20% is the average increase in capacity when a standard
parking structure is used for valet parking; it is a percentage of the actual size; there could be
some extreme examples where it could be more or less. He said .6 is about 83 parking spaces
and 20% would be approximately 100 parking spaces.
Gary Chao:
• Reviewed the argument against valet parking. They had the conversation with Gary Black
from Hexagon; because the original report when it analyzed the full service 5-star hotel, had
that suggestion, and Mr. Black confirmed that for full service hotel, it makes sense to make
that assumption because much of the valet parking is geared toward banquet guests or people
coming into the conference. In a business hotel, people are coming in and checking in at the
airport with a rental vehicle; they do have the need to park, not a lot of people arrive in a taxi.
He confirmed that he was not comfortable recommending valet parking and using that
assumption on this particular type of hotel for that reason.
Aarti Shrivastava:
• Reiterated that Gary Black stated that it was not typical of the service provided by a business
hotel.
Cupertino Planning Commission 6 October 26, 2010
Chair Brophy:
• Said it is not typical for suburban restaurants to offer valet parking in Cupertino, but BJs
restaurant had no choice but to do so.
Com. Miller:
• Noted that the applicants plan was to propose a world class status hotel; and the hotel prices
would tend to be higher and they would cater to clientele who have money to spend when they
are in town. The chances are those people would prefer to have their cars parked for them
rather than search for a parking space. He said given those circumstances, it would be a
reasonable assumption.
Aarti Shrivastava:
• Said if the Commission wanted to consider the valet parking, they could add it as a condition,
and not just assume that it will happen.
Dipesh Gupta:
• Said that if it was a condition of approval to offer valet parking on a 24 hour basis, it would
depend on how much valet parking is being used. If guests are already checked in and they are
parked in a position where they can't move their own cars, then the hotel has to provide the
valet service. If the hotel needs it, they would provide it for as long as need be; because it is in
their best interest to keep the guests happy. They have to make sure they provide the best
possible parking service they can for their guests; the guests will not return if they have
experienced parking issues.
Chair Brophy:
• Said he still did not think it was different than Cupertino Inn or Courtyard; the same
economics factors in terms of what people have, how they get to the hotel, how they park,
would seem to be in the same. The fact that you can walk to a restaurant to eat wouldn't
change his mind.
Com. Giefer:
• Said that when she travels internationally, she does not always stay in the heart of the city, and
relies on public transportation or a courtesy shuttle to get around in a foreign city. The
proposed hotel was at one time pitched as an international business hotel; if that is the case,
you may find people who feel that same way; and if they are visiting Apple she could buy that
to a certain e�rtent; but if they are going to see Oracle and make other sales calls, there would
be a problem because that model would not hold true. She said she was vacillating between
the two models, the hotel is more centrally located than the other ones, with more walkability.
There is more of interest in this portion of the city for a business traveler to access restaurants,
etc., but the bottom line is that Cupertino is a suburb.
Com. Miller:
• Said they did not want to cut the parking down to spite their face, and there were some
examples in town where it has caused problems. However, given that fact, it was pointed out
that BJs as a valet parking establishment has worked out well, and essentially there is no
parking in the area there; if you go there, you are either going on an off-hour which there are
very few, or you are leaving your car with the valet. What they could have going for them to
make it work is the idea of offering the shuttle service, and the way they are marketing it to
their clientele; if they are not doing a good job, they will not get the repeat business; as
business travelers do not want to have to deal with those things.
Cupertino Planning Commission 7 October 26, 2010
• The on-street parking does seem to be an advantage which the other hotels do not have. There
is some number of spaces there, between 15 and 20 perhaps. The last thing we are talking
about is if they chose to offer the valet parking, that more than makes up the difference
because if they are proposing .6, the number is 83 spaces; and they are trying to get to 97;
which could be solved by the on-street parking itself or by the combination of the on-street
parking and the valet.
Chair Brophy:
• Said he was not comfortable with the idea of having 10 to 20 cars parked on the street on a
regular basis, primarily on week days. Said he could deal with occasionally having an
overflow of one to three, but the idea that it would be a full time source of base parking was
not acceptable.
• Even with the valet, it is cutting it tight, barely getting up to .7; Cupertino Inn has a limo
offering that type of service, and Hilton Garden and Marriott Courtyard may offer the same; it
is not going to change the numbers. Mr. Gupta has worked hard on the project and he said he
would like to do whatever possible to help, but the absolute minimum would be to require full
time valet parking.
• Said he would favor looking at a design that is 87 or 88 spaces minimum; you can't add spaces
one at a time; and there is a variance as to what percentage of people will drive their car to the
hotel on any given night.
Dipesh Gupta:
• Said he was comfortable with 83 spaces and was something they could accomplish. He felt
that the .7 that He�gon was asking for does not account for the location, which does have an
advantage which will impact the need for people to drive their own car.
Colin Jung:
• If after a year, a review revealed that the valet parking was not working, remedies would be
available. Proper notification would be given to state that the Commission will review the
parking situation because of complaints received that there is excess parking flowing out of the
hotel. Options would be provided of establishing a long term shared parking agreement with
an adjacent properiy owner; that property owner would have to be within reasonable proximity
and be tied to the hotel itself. Another option if there was more demand for parking that what
was available, the hotel would be curtailed from renting out a certain number of rooms during
the demand, in line with the parking supply. The third option would be the parking shuttle
system; but it is not known how much that would take the edge off the parking demand.
Aarti Shrivastava:
• Suggested that if they were moving toward the reduced parking requirement, that be added to
the conditions now.
Colin Jung:
• The other option would be to say that the city grant approval to use the street parking on Alves
Drive.
� Chair Brophy:
• Said he was comfortable with formally granting it if there is an occasional over flow onto
Alves, but it was not acceptable if Alves was a permanent source of parking. As a primary
remedy, adding in the shuttle was fine, but he said he assumed that for a hotel of this sort, they
would be doing it as a normal course of business.
Cupertino Planning Commission 8 October 26, 2010
Dipesh Gupta:
• Said they would like to offer the shuttle service, and could extend it to the local businesses,
especially Apple HQ, which would be meaningful to hotel guests.
Chair Brophy:
• Said the primary remedy appeared to be negotiating an agreement with the nearby property
owner; that at a certain point if the Planning Department finds there is too much use of Alves
Drive, they would have the right to direct the applicant to find a nearby property owner to
negotiate an agreement to use their spaces. He reiterated that he did not want Alves to be used
as a permanent source of parking.
Com. Giefer:
• Said there was a precedent for using city streets as part of parking calculations on other
projects such as the Main Street project and Rose Bowl project. Said she could not discount
using 15 spaces that may or may not be occupied on Alves Drive.
Com. Miller:
• He said there is a risk for the applicant. If approval is granted, and at the end of tt�e year he is
successful and if his neighbors complain to the Planning Commission, the bottom line is that if
nothing else works and he cannot get a reciprocal parking agreement with a neighboring
business or figure out some other alternative, and he doesn't want to put in lifts, the only
alternative remaining is that the hotel cannot rent all the spaces out, which will cut down the
parking need. The applicant has to assume he is taking an inherent risk.
Chair Brophy:
• Said he was uncomfortable with removing the condition relative to green building; while he
criticized inserting it in the past, he now felt the same about retroactively removing them.
• He said he would like to help the developer bring down some costs and because he has clearly
put far more into the design of the building than the typical project in Cupertino, he suggested
eliminating the public art requirement, especially given that there is no space for it.
Com. Giefer:
• Asked staff if the Planning Commission had the capability of eliminating the public arts
requirement from the project.
Carol Korade, City Attorney:
• Said that one of the problems is that the application was not advertised to deal with all sorts of
other conditions, but advertised to deal specifically with what they were applying for and
issues generally related to that. The public art condition is completely unrelated.
• She said the Commission could legitimately recommend something to the Council.
Aarti Shrivastava:
• Suggested that another option is to build to the LEED requirement, but not go through
certification.
Com. Giefer:
• Said she would be supportive of helping the applicant find other ways to make the project
pencil out, but not to back track on the green building LEED portion of it.
Cupertino Planning Commission 9 October 26, 2010
Chair Brophy:
• Said there is the legal question of how they would handle the public art question; it seems that
their proposed design is considerably above the typical azchitectural design style and there
should be some view that the building design itself could be considered the public art in the
architecture of this particular building and not just arbitrarily suggesting the same in any and
all cases.
Com. Giefer:
• Said her understanding was that they could make the recommendation to Council that they
exempt the project, and recommend that the requirement for public art No. 11 be removed
from the initial model resolution; and it would be noticed properly for Council's meeting.
• Said she was comfortable giving up the art for the same reason they discussed vs. the green
building standards. The applicant said that the incremental costs for the certification was his
concern; if they look at the public art contribution, they would get some offset for that.
• Said she would not support a reduction in parking.
• Relative to parking, she summarized what was agreed upon: 83 parking spaces, valet parking
24/7, shuttle service, review after one year of that the parking system is working and the green
ordinance provisions are retained; and recommendation that No. 11 from original model
resolution regarding public art, Planning Commission recommends that City Council consider
exempting this project from that contribution.
Aarti Shrivastava:
• Said staff was suggesting three options: (1) Look at whether or not the applicant could have a
long term parking agreement with a neighboring property owner provided; (2) Can on-street
parking be approved as far as part of the project if they are seeing that they need it all the time,
and are there any issues with that; that would be a parking exception; and (3) Do the operations
need to be modified so the parking need is reduced.
• She said they would all come into play if there were problems after one year; condition to
review in a year to look at remedies if there were continued parking situations. Once the permit
is approved, they have to comply with all the conditions; and if they don't, the staff has the
right to come back and look at them again.
Chair Brophy:
• Reiterated his discomfort with the idea of saying it is a last resort, and was reluctant to toss it
around so casually.
Aarti Shrivastava:
• The condition would say to review parking in a year to see if there are issues and then follow
up on remedies.
Com. Miller:
• Said he would also want the valet parking to be up to 24/7 as needed.
Colin Jung:
• Said that BJs proposed a plan on a daily basis when they said they would need valet parking
and when they did not, and that plan was approved. It may have undergone some additional
adjushnents, depending on their business, but they knew exactly when they needed it.
Carol Korade: '
• Relative to the LEED certification, she said that staff indicated that the city's position to this
point has been that they have to get the certification. Since it is not guaranteed that they will
Cupertino Planning Commission 10 October 26, 2010
actually get the certification, perhaps they should recommend to the Council some type of
deposit similar to what is being recommended in the green building ordinance.
Walker Wells:
• Described the steps to demonstrate good faith in the LEED process. The first is to register
your building in a timely fashion, not the day before you apply for a building permit, but
several months prior to that, which means you have accessed the LEED online tools, and are
hopefully using them. T'he second is the design phase review of the LEED credits; a third is
related to things about the site, such as being close to transit, having a certain amount of
density, open space next to you; things that can be confirmed by the U.S. Green Building
Council before you finish construction. There is another group of credits that are about items
that can be reviewed based on energy models. You could get about 60% of your certification
reviewed at this design phase review before you came and got your building permit, which
would mean that there would only be 40% up for grabs at the time going through construction.
• A good faith would be registering early enough, going through the design phase review; and
verifying a good number of credits and prerequisites at design phase. Someone could review
their checklist to make sure they actually did what they said they did.
Com. Giefer:
• Said she supported that; it provides the applicant some direction and also lets them know that
they are being trusted to make their best effort.
Motion:' Motion by Com. Giefer, second by Com. Miller, and unanimously carried 5-0-0, ' to
approve Application M-2010-07 with the following changes:
1) Allow the applicant to provide parking at a.6 ratio which is 83 spaces;
2) Applicant is to provide a shuttle service for the hotel guests;
3) Applicant will provide valet parking up to 24/7, 365 and per a plan they will
provide to the Director of Community Development for approval;
4) Once building is built, parking will be reviewed after one year of operation
to determine if the current parking plan in operation are adequate;
5) Planning Commission recommend to the City Council that they waive
Condition 11 relative to public art because of space constraints and t6e high
quatity architecturat design of the building;
6) Commission requires that the applicant meet the original Green Building
requirements with the following points of clarification:
a) The applicant is required to make a good faith effort based on the
following milestones for their LEED application with regards to design
and registration phase of the project:
i) That the project has to be registered with GBCI at the time of
building permit application;
ii) The applicant shall be allowed to temporarily occupy the building at
completion while applying for LEED silver certification; at the end of
the applicant's best faith apptication for LEED silver, the final
occupancy permit shall be issued upon provision of the certification
or upon proof that they put forth a good faith effort to receive the
certification;
7) The swim pool requirement shall be deleted;
8) Any permanent green buitding measurements would supersede this;
9) The Director of Community Development has the authority to revert back to the
originally approved plans with the clarification of the Green Building condition,
with Item 8 now being amended for both the Use Permit as well as the
modification.
Cupertino Planning Commission 11 October 26, 2010
Chair Brophy declared a recess.
2. MCA-2010-04 Municipal Code Amendment to adopt a Green Building Ordinance
City of Cupertino Continued from the October 12, 2010 Planning Commission
Citywide Location meeting; Tentative City Council date: January 2011
Aki Honda Snelling, Senior Planner, presented the staff report:
• Reviewed the application for Municipal Code Amendment to adopt a Green Building
Ordinance, which was continued from the October 12, 2010 Planning Commission meeting; at
which time the Commission commented on several components of the draft ordinance
including threshold level, verification options, LEED EBOM and incentives.
• She reviewed staff responses to comments/questions on Reference Standards, including (1)
How are points accumulated for higher density/smaller unit buildings; (2) Provide more
information about LEED EBOM; and (3) What is the flow chart difference if a development
went through LEED exterior vs. LEED EBOM. Detailed responses are contained in the staff
report, Pages 2-1 to 2-3.
• Relative to Reference Standards, staff recommends allowing EBOM as an alternative for
renovations and additions rather than the piecemeal approach, with the informal verification
option.
• She said that in the October 12, 2010 draft, it was not clarified the decision maker of alternate
Reference Standards; the ordinance before the Commission clarifies that the decision maker of
the application would determine if the project could use the alternate Reference Standards
equivalent to whatever either the minimum requirement or exemplary requirement.
• Relative to the Reference Standards the City Attorney suggested that references to the year
versions be deleted in the ordinance and add language that clarifies the standards that will be
applied or as they exist at the chapter adoption or a subsequent amendment, because if LEED
changes next year, staff would have to bring the ordinance back for a change each time.
• She reviewed the Commission's two comments on Residential New Construction, which are
detailed in the staff report Page 2-4, and said that staff recommended using square footage as a
threshold rather than the unit system, and is recommending that single-family homes less than
or equal to 2,500 sq. ft. be required to have a minimum of 75 Green Point Rated points (GPR);
and homes greater than 2,500 sq. ft. have a minimum requirement of 100 GPR. For multi-
family homes, staff is recommending homes less than or equal to 800 sq. ft. be required to
meet the minimum 75 GPR and if more than 800 sq. ft., the minimum requirement is 100 GPR.
• She reviewed the Commission's five comments relative to Non-Residential New Construction,
(Page 2-4 of staff report). Staff has provided data over the past 5 years on new construction in
the city; and found that 31 % of new construction was above the 25,000 sq. ft. level and 21 %
was over the 50,000 sq. ft. level. Staff is recommending in the draft ordinance based upon the
Commission's comments to reduce the threshold to 25,000 sq. ft. for large projects, so that
projects less than 10,000 sq. ft. would just be required to meet the CALGreen Mandatory
standards; projects 10,000 sq. ft. to 25,000 sq. ft. would require the LEED certified level; and
projects over 25,000 sq. ft. would be required to meet the LEED Silver certification level.
Staff also recommends requiring formal verification if the building is over 50,000 sq. ft.
• She noted a correction to Table 19.78.060 in the Draft Ordinance, change "renovations" to
read "new construction" and reviewed the Non-Residential Renovations/Additions as outlined
on Page 2-5 of the staff report.
• Staff's recommendation is to reduce the threshold to 10,000 sq. ft. and to consider a major
renovation if the renovation/addition exceeds 50% of totally existing floor area, and is at least
10,000 sq. ft. and includes replacement or alteration of the HVAC system and two of the
following: Building envelope, hot water system, or lighting system.
Cupertino Planning Commission 12 October 26, 2010
• Staff is also recommending requiring informal verification for all renovations and additions.
• Relative to the scope and applicability portion of the ordinance, consider the effective date to
be 30 days from ordinance adoption, but include language in the ordinance that says
requirements on building permits would not be effective until July 1, 2011, to coincide with
the new fiscal year. It would still allow for a grace period but would shorten the timeframe to
30 days for anyone mounting a legal challenge to the ordinance. Staff also recommends that
no exemptions for approved or entitled planning projects for the ordinance be given.
• The Commission's comment on verification was to streamline the verification process by not
adding to building permit plan check or construction time due to certification. Staff
recommendation is to grant the final approval or occupancy for projeets requiring verification,
if all other city requirements are met, particularly because the Green Building deposit was
being held.
• Staff is recommending guidance from the Commission on fees and deposits to consider the
previous recommendation which is higher but more commensurate to the cost of certification.
Staff is also supportive of the Planning Commission recommendation to allow for flexible
methods of deposit such as line of credit.
• Relative to Exemplary Projects and Incentives, staff does not recommend the plan checking
projects for exemplary projects, because projects are already moved as expeditiously as
possible to provide the best customer service for the city. They also felt that it would not send
the right message to applicants if their plan checks were held back. Staff offers over-the-
counter express plan checking, same day and 5 day express plan checks, for smaller projects
where they can be checked in-house as opposed to sending them out or wait for other agencies
outside the city to comment.
Com. Giefer:
• Asked staff to expand on the second point under staff recommendations that it would not be
the right message to send to applicants.
Aarti Shrivastava: �
• Said it was always a difficult conversation at the counter telling people that their permits
haven't yet been processed because there are exemplary projects that have to be processed
first. Staff will process whatever the Planning Commission and Council recommend.
Aki Honda Snelling:
• Staff also has recommendations on the incentives section of the ordinance. One of the
recommendations from the city attomey was to provide language in the purpose and intent
section, showing that the city encourages applicants to voluntarily adopt practices that are
more environmentally friendly than the minimum requirements by the ordinance by providing
incentives for such buildings and structures. Findings have also been added in the incentive
section to clarify when projects may qualify for incentives. There is also added language in
the draft ordinance that clarifies what the automatic incentives are; which are reduction in
building permit fees by an amount set by Council or matching grants to offset the certification.
Staff is asking the Commission for recommendation to consider 2% to 5% what that range
should be in reduction in building permit fees. For the discretionary incentives these would be
granted by the decision maker for the application; if the application went to Council, the
Council would be the decision maker of these discretionary incentives. T'hese incentives are a
10% increase to the maximum floor area ratio allowed by the city; and staff is asking the
Commission for some direction. If they would like to stay with the 10% or allow for a range
between 5% and 10%; and also a 10% reduction off-street parking, and also to ask the
Commission for guidance and direction on what that percentage should be.
Cupertino Planning Commission 13 October 26, 2010
• She reviewed the Comparison Table of the Oct. 12, 2010 Draft Ordinance and Recommended
Amendments Based on the Planning Commission, as outlined in the staff report.
� Staff recommends that the Planning Commission recommend that the City Council adopt the
proposed Draft Green Building Ordinance presented, in accordance with the model ordinance,
and including changes recommended by the Commission.
Aarti Shrivastava:
• Suggested the process include an item-by-item review, with straw votes taken, followed by a
motion, similar to the previous discussion.
Walker Wells and Aarti Shrivastava answered Commissioners' questions about CALGreen
standards and the LEED process.
Chair Brophy:
• Said he would vote against the Green Building Ordinance. AB32 requires a 29% reduction
from 2006 to 2020 which per capita basis is 38%, 14 years, and there is no way this can be
accomplished by controls on new buildings, especially in a town like Cupertino where the
residential construction would be 1% to 3% of the 2020 housing stock, perhaps a little more in
the non-residential. He said the idea of focusing all their efforts on new building is a mistake
and they need to dramatically reduce the consumption of utilities and water in existing
buildings. In the Wall Street Journal there was an article about EPA sponsoring a competition
in large commercial buildings to see who could reduce the most energy use over 12 months,
and the winners included a dorm at the University of No. Carolina, a Sears and a Penneys
building, that all reduced on average 30% or more.
• An opportunity exists to go on a completely different path than the other communities in this
area, and instead of being one of the `cool kids' with a new Green Building Ordinance, if the
Council directed to make a major effort at reducing existing utility use, it could have a much
greater effect on sustainability than any Green Building Ordinance.
• Said it was up to the Council to decide; but he would vote no and ask them to completely turn
around the whole approach of environmental sustainability to get some real results rather than
simply have an ordinance.
Com. Giefer:
• Said what is good about the Green Building Ordinance is it is preventative. The buildings that
are built new or renovated to this policy will be more energy efficient, they will talce advantage
of new construction techniques and energy savings, so that in 30 years someone is not looking
back at them saying they wished they would have done something about creating more energy
efficient buildings. She said she felt they have to go back to the built stock and retrofit, and
make them more energy efficient or water efFicient, but you also need to offset the future.
Chair Brophy:
• Said there is going to be very little construction in the ten years from 2010 to 2020 in a city
like Cupertino given the realities. Perhaps on the non-commercial side there will be some, but
residential will be low single digits and the reality is that the only way to get major reductions
in sustainability through the existing structure is for the City Council to make a major
commitment saying this is where they are going to spend their dollars and their time. He said
he would like to work forward and do the very best Green Building Ordinance for new
construction, but then proceed to shock them by saying this isn't where you need to spend your
time; spend a year or two showing us where we are going to make major commitments to
reduce use; and a lot of it deals with things that are not easily legislatable.
Cupertino Planning Commission 14 October 26, 2010
Com. Miller:
• Referred to another article from the Wall Street Journal about AB32; and said according to
studies done including a study by the State's fiscal auditors, this is going to have a major
impact on jobs in the state. The� are projecting a loss of 1.3 million jobs over the period
between now and 2020 if they move ahead on AB32.
• Said his concern is that it is a good ordinance; he believes it is the right thing to do; however,
when you add this ordinance to every other ordinance they have, they are piling regulation
upon regulation and cost upon cost of building in California and Cupertino. At some point in
time developers say they just can't do it; it doesn't pencil anymore and they are going to go
somewhere else; some go outside the state, some go to municipalities where the requirements
are less stringent. He said his feelings at the last meeting were that if they wanted to
implement something similar, they also have to do something to reduce the current regulation
and the cost that they are already putting applicants through to offset it.
• He said Chair Brophy suggested a different perhaps the approach they should take with new
construction is do the minimum that CalGreen mandatory requires, but then devote time to
figuring out how to address the larger issue of existing buildings and how to put something in
place that encourages existing building owners to go and reduce their emissions today. That is
not something they can mandate, it is something they have to be more creative with because it
is going to take incentives in some form to do it. He said that Chair Brophy's bringing it up
resonated with his own concerns; and there aze some different ways to address Chair Brophy's
and his concerns which he feels are valid.
Com. Giefer:
• Said she found it interesting and coincidental that they were finding articles in the Wall Street
Journal when being asked to vote upon something that would un-Prop 23 in the next week.
Chair Brophy:
• Said his view on that point is that AB32 is the law and from everything he read, it is going to
be the law after next week; the issue on his mind is what is the best way to accomplish
reduction in resource use.
• Said he was willing to move forward on the Green Building Ordinance; in terms of some of the
incentives they could look at the incentive section staff has proposed and come up with ones to
ofFset the cost.
Com. Kaneda:
• Said that the biggest issue in Cupertino is transportation.
Chair Brophy opened the public hearing.
Jennifer Griffin, Rancho Rinconada resident:
• Said the Green Building Ordinance is something that is currently happening across the US and
in Europe. Many cities are working on Green Building Ordinances and there are things
coming down the pipeline from state and federal. Said one of her main issues is that
Cupertino has some historic items that are strictly their own; there are certain political and
trigger points which set the public off and one of them is the subject of incentives that could be
given and dangled out to developers as incentives to go green.
• Said she did not object to going green, but there are certain incentives that should not be given
out to people because they are trigger points; they belong to the community. The residents
intent is to preserve their neighborhoods in tact and they will do everything possible to do that;
preserving the integrity of their neighborhood has been a struggle for 15 years, but they have a
lot to show for it.
Cupertino Planning Commission 15 October 26, 2010
• Said she did not support doing changes to FAR or zoning or compromising parking in
Cupertino to give to developers; the developers have taken every square inch of the Rancho
Rinconada it is still happening. She said the political things need to be fought out in the city;
they are not there to be given out by other people, and if they are, there is a need for public
participation.
• She said they need to bring an ordinance and give them other things; but don't give them
things that belong to the people of Cupertino.
Chair Brophy closed the public hearing.
Chair Brophy:
• Said he agreed with Com. Kaneda's last point; that if they really wanted to do something about
reducing energy use in Cupertino, the first place to start would be transportation. As a
Planning Commission they have tried to encourage projects that put housing in appropriate
locations and have tried to encourage development along Stevens Creek and DeAnza
Boulevard that the City Council hasn't always agreed with; but given that they are looking at
building issues tonight, he said he would like to work through the ordinance and do the very
best one.
It was decided to comment on the Comparison Table and summarize comments.
Vice Chair Lee:
• Said she felt they should retum to the parcel tract map, five homes or less, instead of focusing
on the square footage again because it just adds more numbers, makes it more confusing and
they have to come up with an average home. It is better not to zero in on the square footage of
a house.
Com. Miller:
• He said he suggested going with the minimum and focus on existing buildings along the same
line of reasoning. If they don't do that, he would prefer a sliding scale, such as Palo Alto or
Sunnyvale had for every 70 feet you add one more point onto the system.
Chair Brophy:
• Said he disliked the sliding scale type, and recommended three categories: for less than 1,000
sq. ft. make it exempt; for 1,000 to 2,500 sq. ft. make it 75 points similar to houses; and
2,500+, 100; the reason for exemption is that smaller units have by definition a low
environmental impact; we would help to bring down the cost of the smaller homes which are
most likely to be the affordable homes. He said that 1,000 square feet would mostly be built
along the major roads where there is transportation; in this case trying to balance it against the
need for affordable housing. Homes under 1,000 square feet, if they already have to meet the
building codes, they have to meet CALGreen; they are likely to be in places where they have
less transportation burden on the city.
Com. Giefer:
• Said she felt it was a moot point because there weren't very many 1,000 square foot homes
being built in Cupertino.
Chair Brophy:
• Said he did not see the point of having a different set of numbers between single and multi-
family.
Cupertino Planning Commission 16 October 26, 2010
Com. Miller:
• Said he did not appreciate the level of difficulty in going from 50 points to 75 to 100.
Chair Brophy:
• Originally it was thought they could do 50 points which was the Phase 2 recommendations for
under 9 units; but at that point that if it is that close, we are talking about small units; let's just
save them the trouble of the cost of going through the process. I remember saying that we
were essentially talking multi-family units under 1,000 feet that they are going to be at 50 just
by virtue of the density; if they are already at 50, why make them go through the process.
Walker Wells:
• If they are multi-family, they would be at 75; meeting the energy prerequisite and getting
enough points to be at 75 almost defacto. In the outreach, there was general agreement that the
50 point threshold was too low to be meaningful; the stakeholder groups said that it should be
increased to something and there was general agreement that 75 was a good place. In terms of
exempting the small houses, Phase 2 is 500 feet, which is the threshold identified if interested
in maintaining consistency with the Phase 2.
Aarti Shrivastava:
• Noted that if it is a new house, they would need to meet tl�e CalGreen code, exempt might be
confusing. Said she was trying to understand if it was just to meet the Green Building
Ordinance.
Chair Brophy:
• Said it meets whatever the building code is which includes Title 24, xeriscape ordinance,
includes Calgreen if that covers the multi-family; and if it is more than 3 stories it wouldn't
have to meet CalGreen.
Aarti Shrivastava:
• Said they were not requiring any projects to go through any certification unless they are non-
residential greater than 50,000 sq. ft., for the minimum. If in the Exemplary category, they
state that if you are getting incentives, you should go through the certification.
• Staff will check at the building permit stage if they are meeting the criteria per their building
permit drawings, and make sure they are building the building as they said they would; they
will not be required to register with LEED or GPR, show certification or provide a green
building deposit. The only people with certification costs at this time in the draft ordinance, are
the non-residential greater than 50,000 sq. ft. new construction. There is additional plan check
cost to check for the green building requirement; it is estimated in the $1,000 to $1,500 range.
Com. Miller:
• Summarized that their cost is the cost of doing the plan check, cost of their consultants,
architects and engineers and the cost of their construction.
Walker Wells:
• Said the key additional cost would involve making the building more energy efficient than the
code, which could include better windows, more insulation, more efficient air conditioner,
heater, and water heater.
Cupertino Planning Commission 17 October 26, 2010
Com. Kaneda:
• Relative to residential, new construction, he said it was questionable that the 800 sq. ft. would
be the right size for multi-family, and is it appropriate to look at multi-family separate from
single family.
Com. Giefer:
• Said she was comfortable with the staff recommendations on Page 2-4; could move up from
800 to 1,000 for multi-unit; it does make sense to have single-family and multi-unit because
that is the way the GPR system works; they are being consistent with the recommending rating
system by differentiating the two which makes sense. She said she did not feel they were
onerous achievements and if you are building a larger home you should have to mitigate the
greenhouse gases more.
• Said she supported the staff recommendation, but would go up from 800 to 1,000 if that is
helpful; make it mandatory; she did not feel the fees are onerous.
Walker Wells:
• Said the fees for GPR, registration for single family and multi-family is $400; the certification
is included for single family and multi-family it is $100 per building; the fee for the rater to
look at things which they estimate at $1,500 for a single family house and $4,000 to $7,500 for
multi-family building. Said there were ea�tra options for testing available but not required, such
as testing of the ducts, inexpensive ways to get extra points as someone is there already, so
they are often taken.
Aarti Shrivastava:
• Summarized $2,000 for a single family home and between $4,500 and $8,000 if there was one
multi-family building for optional testing.
Com. Kaneda:
• Compared to the cost of a new construction home in Cupertino, that is just noise; said he could
go along with requiring formal rating.
Com. Miller:
• Said he supported informal unless they make a serious effort to offset some of the
requirements with reductions elsewhere in the code.
Walker Wells:
• Said if doing informal, the potential testing and inspection would not happen in the field.
There is a way to approach it so that you can get some of that testing which is to require that
people take the optional field verifications as part of their energy performance model; a rater to
help on Title 24, and would be a way to get the 15% and an extra person in the field looking at
things. He explained in detail and answered questions about the testing processes used to
ensure energy efficiency in homes and buildings.
Chair Brophy summarized:
• Com. Kaneda and Com. Giefer both support formal review of new construction, single-family;
• Com. Giefer said she would like to go up to 1,000 ft. for multi-family; keep the different levels
between 2500 sq. ft., 75 points above that it is 100 GPR; 2500 for single family; fleauble on
square feet for multi-family, 800 to 1,000; a case can be made for both as an average unit size.
� Com. Kaneda: same. The other three of us have different things; does anyone want to go with
this, or does anyone want to propose something else for consideration.
Cupertino Planning Commission 18 October 26, 2010
• Vice Chair Lee supported going back to using 5 units as the split rather than single vs. multi-
family; still be 75 and 100, only split it between less than 5, and 5 or greater.
Residential, New Construction, Single family, multi-family:
� 85 for all homes; mandatory, no difference in squaze footage or dwelling type; Chair Brophy
• said he would not support that; Com. Kaneda said he could live with that; Vice Chair Lee:
okay; Com. Miller: No; Com. Giefer: Yes (Vote: 3:2 yes) �
Non-residential, New Construction:
• Change from previous meeting; instead of going lOK to SOK, went to lOK to 25K for LEED
certified, and 25K or more LEED silver; less than l OK is CalGreen
• Com. Kaneda: supports revised recommendations for less than lOK- CalGreen; lOK — 25K
certified but no paperwork; over 25K Silver LEED
• Vice Chair Lee; Com. Miller — no changes
Verification:
• Aarti Shrivastava said that staff recommendation was Informal for everybody except for
projects SOk square feet or greater; those go through formal certification; staff is not requiring
certification for any projects under the non-residential new construction unless they are SOK
square feet or greater.
• Com. Kaneda said it was reasonable.
• Com. Giefer: Anything over 25K sq. ft., would like to see it mandatory, but Silver LEED;
logic is that 52% of the projects that came through in the last 5 years were 25K or bigger;
would like to capture the majority. According to what staff shared eazlier, 31% is 25K sq. ft. or
up; 25K to SOK; above SOK is 21 % of the projects.
Aarti Shrivastava:
• Clarified that it was 31 % total; when we say 25 and above, it also captures the 50, but it is just
a technicality.
Com. Giefer:
• Misunderstood the presentation of information; it is a small incremental amount of the third,
even less onerous; would not go down to l OK and try to capture that.
Vice Chair Lee and Com. Kaneda:
• Said they could support 25K.
Chair Brophy:
• Vote for 50 for formal; vote is 3:2 for 25 and the categories remain the same; Clarified on the
other 10 there is no informal or formal; just CalGreen
Renovations/Additions; Single-Family and Multi-Family Residential:
• Com. Giefer: Support CalGreen mandatory; not comfortable with it, but will support it.
• Com. Kaneda: stay with CalGreen mandatory or continue it under more research can be done.
• Vice Chair Lee: amendments are fine
• Com. Miller: CalGreen mandatory
• Chair Brophy: Take out the language under verification; verification language is not
applicable.
Cupertino Planning Commission 19 October 26, 2010
Multi Family Minor Renovations:
• Walker Wells: said that CalGreen does not apply to renovations, it says they are doing
omething in the city that goes beyond the state standards; it is not insignificant because it talks
about paints, adhesives, flooring, water fi�rtures, etc.
• Com. Kaneda: okay as is.
• Com. Miller: Go to the lower standard which is apparently not in this case; no standard,
• Com. Giefer: Support CalGreen mandatory; thinks they could do more; however, don't know
what that would be.
• Vice Chair Lee: CalGreen mandatory
Summary:
• CalGreen mandatory unanimous; language under verification is not applicable.
Multi-Family Major Residential:
• Com. Kaneda: support e�usting; formal — either/or; GPR or LEED certified or EBOM/certified;
if not doing EBOM, live with informal; EBOM, go with formal. Issue is with certified or
GPR; does not feel strongly that it has to be formal, but if the majority votes for formal, he
would support that.
� Com. Miller said he would support that.
• Vice Chair Lee: Said acceptable; it is is major, you would want formal.
• Com. Giefer: If going informal for GPR for smaller projects, single family; Verification is
more important for the water projects; preference is for formal on all three.
• Chair Brophy: Most multi-family renovations would more likely use GPR because it is a
residentially oriented system; said he was opposed to having formal for single family homes
since the majority felt otherwise, it doesn't make sense to have informal for a larger project.
• Three votes for formal; everything else remain as is.
Renovations and Additions — Non-residential:
Minor: CalGreen Mandatory: is that acceptable for this category
• Com. Giefer: Is consistent with the logic for residential.
• Acceptable to everyone
• Chair Brophy: then we eliminate on verification what's not applicable.
Major:
• Wouldn't be a GPR for major non-residential; would be LEED certified or LEEDBBOM and
formal
• Aarti Shrivastava: Said they were not requiring formal until projects reach 25K sq. ft. for new
construction.
• Com. Kaneda: only change - Change "at least 50% of the building and at least 10,000 square
feet" to 10,000 square feet or above."
• Should take the 50% out of multi family section as well.
• Com. Miller: The trigger for the multi-family residential is 10,000
Aarti Shrivastava:
• If you want to set the threshold, perhaps you set it at the 25K for the verification where it is
formal for 25 and above; so at least it is the same and not more onerous for renovations. It can
be left up to the Planning Commission.
Cupertino Planning Commission 20 October 26, 2010
• All LEED EBOM would be formal; if doing LEED certified anything over 25K would be
formal, but 10-25 would be informaL It adds a level of complication; to make it simple, you
could say informal for all LEED and only EBOM is formal, or there are different ways to go
about it.
Chair Brophy:
� States they are going to formal for over 25 if it is not LEED/EBOM; LEED/EBOM would be
formal no matter what; to keep this consistent with new construction, the use of LEED
certified would become formal at 25K. If doing more than 25K it would be formal; if it is
between lOK and 25K, it would be informal. The idea being to stay consistent with the new
construction threshold.
Com. Kaneda:
• If you do an informal you can always opt to go formal, if stating formal, you must certify,
which is the reason for bumping it up to 25,000.
Walker Wells:
• Said that if somebody says they are deciding on their own accord to pursue formal
certification, not at the exemplary level but at the same level as doing informal, but they
actually want to go through the process; it needs to be explained how they would demonstrate
that to the city so the city would be comfortable with it.
Chair Brophy:
• Does it get resolved in the ordinance or can the building deparhnent resolve it
administratively?
Aarti Shrivastava:
• Said the way it is resolved administratively is if they don't require the certification then the
city won't need to look at it; but they have to ensure that it is built at the building permit level
and they can chose to do what they want on their own.
Walker Wells:
• Said it appears to be the cleanest way to do it; they would still need to have whatever
documentation they had reviewed by the city to meet the city's requirements; they then could
continue to pursue formal certification.
Scope and Applicability:
• Following a discussion, there was consensus that July 1 St would be the appropriate target date.
Chair Brophy:
• Said they agreed on the issue of no exemptions from the ordinance for planning projects that
have received entitlements. Having a planning approval in the past doesn't affect your
building permit, building standards. By July 1 St , everything is subject to the ordinance; the
fact that you got planning permission in 2010 doesn't exempt you from the July 1 St date.
Com. Miller:
• He said if they don't pull their permits by then, the building has to be redesigned to account for
something not accounted for before; some aspect of the Green Building Ordinance that may
not have been included.
• With the final map, everything is approved. You can have final map and not pull your permits,
and everything is approved, and now you are going to ask someone to go back and redesign.
Cupertino Planning Commission 21 October 26, 2010
We give them a tentative map and then they go and get a final map, and all the details are
defined in the final map; and we are giving them an approval for a length of time whether a
year or two years or whatever the standard time is.
• Said he did not feel it was appropriate if you have an approval for a certain length of time to
say the city has changed the ground rules; if they run out of their approval time, then they are
at risk. He said he did not feel it is proper to base it on pulling building permits; but to base it
on the contractual agreement the city made when they gave approval.
Chair Brophy:
• Said he disagreed and did not feel that approving a plan constituted approval of building; for
example, CalGreen is based on when the building permit. The state says it is when you get our
building permit is approved, not when you got planning permission or when you applied for a
building permit.
Com. Miller:
• Said to keep in mind it is a transitory period and will only happen once. He said he was not
sure why one would want to cause those people extra heartache. After it is approved, every
application that comes in and after that is not subject to this issue. Said he was looking at it
from the standpoint of spending a lot of money on architecture and design and everything has
to work together; if you haven't accounted for something that is now in the Green Building
Ordinance, there is a good chance you have to go back and redesign even though you spent a
lot of money and everything is done.
• Why would someone not hurry up and get their building permits? Building permits can be
very expensive and they need to finance, and if they are not going to hurry up and get their
building permits until they know that they can go ahead with the project; they may have gotten
their approvals and they are sitting on them at this point because the environment isn't right to
go ahead.
Com. Miller:
• Said as long as they have an approval; when the approval runs out they are done.
Aarti Shrivastava;
• Said that in the last staff report that discussed planning approvals, it said if the Planning
Commission wants to recommend the planning projects that have received prior approval as of
a certain cutoff date, they would be exempt for as long as their original planning permit was
valid, which ranges from 5 years to other time periods; but staff would recommend that if
came in for eatensions they would have to comply with the Green Building Ordinance.
Com. Miller:
• Said he considered it more reasonable than saying if they haven't got their building permit,
they have to go back and redesign. In the present environment they want to be more business
friendly than that.
Walker Wells:
• Said it was unlikely that they would have to redesign in order to comply, but one project might
have to go through significant redesign to meet the energy prerequisite. If that is not
appropriate then they should follow what is being proposed.
Aarti Shrivastava:
• Said that she would not recommend handling on a case-by-case because it is unfair to ask staff
to make that decision at the counter; they only determine what it is and who is subject to it.
Cupertino Planning Commission 22 October 26, 2010
• Explained that the landscape applies immediately similar to the building code; it was a staxe
mandated ordinance and went into effect whether or not communities wanted to; there was no
option of allowing a grace period for landscape. Once the ordinance goes into effect, even if
you have applied for a planning permit before, you are subject to that when applying for the
building permit.
Vice Chair Lee:
• Referred to sisterns, and asked if it would be in the building envelope; would it be in the ASA
and would they have to get that redesigned. It is a way to get some of the required 85 points.
Said she understood Com. Miller's point if they had to get the landscaping redesigned by the
landscape architect.
Aarti Shrivastava:
• Said not all projects have sisterns; the landscape was always applicable, with stricter standards
for non-residential and multi-family.
Com. Kaneda;
• Said it was highly unlikely that there are any sisterns in Cupertino.
Chair Brophy:
• Said he understood as a practical matter, that the new water requirements combined with the
C4 drainage requirements are such that the points are rolled up in that area; it is akin to
obeying the law, and is a case where it is likely stronger than the rating system. He said he was
willing to move up the date a few months to cover those things, rather than the staff have to
sort out special cases. It is a matter of what is the least objectionable way to resolving the
problem.
Com. Kaneda:
• Said he agreed on the issue.
Com. Giefer:
• Said she did not agree because it meant the policy would not functionally go into effect until
the end of next year. Chair Brophy's point was well taken that codes change constantly.
Com. Kaneda:
• Said he was flexible on the dates, and he felt it should be treated like a code.
Chair Brophy:
• Suggested recommending that rather than putting the July 1�` date that the City Council insert a
date that is the 1 St after six months, to get a full six months.
Aarti Shrivastava:
• Said they could send out letters to people who have current planning applications. A citywide
notification was sent out on the application; all property owners were identified.
Chair Brophy:
• Said he agreed with resident Jennifer Griffin that FAR is a sensitive issue, and did not feel that
the Green Building Code should raise the issue of either FAR or parking. The earlier
application was a good example of why FAR and parking should not be used as a bargaining
chip in green building. He said he was opposed to giving more FAR and would like to remove
that from consideration.
Cupertino Planning Commission 23 October 26, 2010
Com. Kaneda:
• Relative to FAR, parking, on some of the green building systems actually they are saying put
the minimum parking in; you don't want to encourage people to drive everywhere; giving a
medicinal parking seems like a non-green thing to do.
Chair Brophy:
• It provides a reduction, but Cupertino is still a small town.
Aarti Shrivastava:
• Staff does not have a strong opinion on this; it was a suggestion only; if the Planning
Commission doesn't want to go there, that is acceptable.
Com. Kaneda:
• Said that he would be willing to discuss FAR, but if no one else is interested, it is not a huge
issue.
Com. Miller:
� Relative to FAR, instead of raising the bar if you do green building, lower the bar for everyone
else. If the FAR is 35 or 40%, if you do green building it is 45. Said that incentives don't have
to be based on exemplary requirements. People complain that the buildings are too big and the
city's FAR is generous in comparison to other cities in the area, except San Jose.
• A possible controversial incentive is to offer breaks on affordable housing fees and building
requirements; that is probably the most expensive requirement subsidy that applicants have to
contribute to; and the way we do it is we view it as a community good but it is a cost to only a
small group of people; either the people who own the land or building the structures or living
in them afterwards; and the whole community presumably benefits. He said he viewed it as an
unfair way to go about providing affordable housing to begin with.
• He suggested that as part of what they are recommending, the Council look at ways to offset
some of things proposed without a specific recommendation; let the Council direct the
Commission to look at it in more detail.
Com. Giefer:
• Said that time is money; and she felt the developers would appreciate expediting the building
inspection process during the transitional period as an incentive;
• Said she also liked the idea of review of the overall R1 FAR where you can build up to 45%
FAR if it is a certified reviewed formal green building project. If it is GPR or LEED, you can
only build a 35% FAR if it is not.
• Said if they meet the exemplary requirement, they could build to the current 45%, if not, they
can only build 35%. It is the biggest incentive to offer both developers and residential owners.
• Said she would also consider reduced parking calculations as an incentive because it is
consistent with green building to discourage driving.
Chair Brophy:
• Said he felt it would create an imaginary world that doesn't exist in Cupertino because
Cupertino is not an urban type suburb such as Berkeley or Oakland where that can be done.
To state that they would not have parking, in the case of tonight's hotel application, it means
there would be cars on Alves Avenue and in other people's parking lots.
Com. Giefer:
• Said she was thinking more about long term; it is something that is going to last; how would
they get there if they don't start garden pathing it today?
Cupertino Planning Commission 24 October 26, 2010
Chair Brophy:
• Said he was not willing to wait 20 years of having cars parked on Alves Avenue.
• Said because of the lateness of the meeting, it was too late to deal with incentives; they could
• either postpone it to the next meeting to focus on it, or leave it out completely and let the
Council thrash it out themselves.
Vice Chair Lee:
• Said she was okay with the incentives; there were three for parking and FAR.
Chair Brophy:
• Said he was not agreeable; also said he had strong feelings about reduced parking.
Coms. Giefer and Miller:
• Said they did not support increasing FAR for green building.
Vice Chair Lee:
� Said she did not feel they were able to recommend incentives now because there was no
money to give away; you don't want to give away FAR and don't want to open that up.
Parking was a good suggestion unless there are any suggested incentives to go exemplary other
than the fact that if people go to LEED gold or platinum they would have self-satisfaction.
Aarti Shrivastava:
• What we are saying is that it would have to be reviewed by the Council every year to see how
much they have to give and it would depend on that; we make an estimate of how much
building permits are going to bring in every year and we could adjust it, or if it is too uncertain
we could leave that out.
Com. Giefer:
• Rather than giving a rebate, discount the permit.
Com. Miller:
• Said there are some city requirements that cost significant dollars and are worth reviewing
because perhaps they aren't worth the value that is received from them. It does not reduce the
city's budget, but it does potentially lower the cost to the applicants.
� An example is the requirement for story poles, where the city requires that a civil engineer
survey the exact locations that the wood has to go in the ground; that costs about several
thousands of dollars, and the benefit is doubtful. Another example would be the requirement
for expensive grading bonds and why that is needed when there are many cities that don't
require grading bonds at all. There are many examples where the expenses could be reduced
without costing the city any money.
Aarti Shrivastava:
• Said staff wanted to make sure that the green building incentives were related to green
buildings and that is why they wanted to keep it together because when noticing for a hearing,
they are noticing not for green building next time, but for the development permit process.
• Said there was interest in giving some financial incentives as well as the ones included and
more can be added and the Council can also come up with some ideas. If the Planning
Commission is interested in looking at story poles and other things as part of the development
permit process, they could do that separately.
Cupertino Planning Commission 25 October 26, 2010
• She summarized the discussion; no increase in FAR, there wasn't a strong feeling about
parking and the other incentives be included as long as the city has money and the budget
allowed it; and look at other ways to reduce costs. Staff will inform the Council of
implications. For example, if looking at story poles, you are looking at opening the R1; if you
are looking at BMR, you are opening up the housing element again, and going back through
certifications; there are some things tied to some of the other requirements, but we can bring
some other ideas that were discussed.
• Relative to fees and deposits, if the Planning Commission is looking at the lower San Jose
style green building deposit vs. the higher amount recommended, staff is fine with either
approach; there are pros and cons to each approach.
Com. Miller:
• Said a deposit is merely another cost, which continue to add to the cost of developing. He
suggested they keep it as low as reasonable.
Walker Wells:
• Reminded that there has been discussion about the line of credit as an option; one would have
to demonstrate they had access to the money, but not provide a check to the city.
Com. Miller:
• People get bank loans for a maacimum amount of money and it is a cost in the project of doing
that; it would be rolled into the budget that they are getting money for. The reason for the
deposit is to make sure they go ahead with the verification and the deposit is somehow
equivalent to the cost of verification. Putting up a credit card is not an interesting option
unless it is a developer who is running his own development and has many credit cards and a
lot of money in the bank. If it is a group of people or an organization, nobody wants to put up
their personal credit card.
Walker Wells:
� Said it was access to debt and the ability to demonstrate; if the demonstration certification isn't
provided, the city would have the right to draw against that access to date. The concept is to
not have to have the actual dollars locked up in an account.
Com. Miller:
• He said it would be ideal if they could reach an agreement with the lender that a certain
amount of the money would be set aside for that purpose. Credit cards and personal bank
accounts are risky; it is all funneled through some type of corporate structure and that is where
all the guarantees and the insurance is done; hence it can't be done very conveniently outside
of that.
Aarti Shrivastava:
• Said that having the applicant post a bond was a possible option; requiring lines of credit, or
checks are ailso acceptable. The methods are fle�ble; staff is looking to the Planning
Commission on acceptable amounts.
Com. Miller:
• Pointed out that getting bonds these days was extremely difficult, many companies have gone
out of business, and it is a challenging and expensive venture.
Cupertino Planning Commission 26 October 26, 2010
Vice Chair Lee:
• Asked why they still required a deposit if they can hold their certificate on final building
occupancy?
Aarti Shrivastava:
• Said it applies to those who need formal certification; for those who have informal, the green
building deposit is not required. If they don't meet the LEED requirement, there is no way for
them to get to that, because they haven't met the points. There is a remedy where they pay a
penalty which is the green building deposit; it is returned otherwise because we don't want to
hold onto the final occupancy and say they are never going to get it. That is not a good
resolution for a building. The deposit is required at the building permit stage; it could be
changed to fmal occupancy.
Com. Miller:
• Said that changing it to the end of the project when there is presumably money coming in, is
easier to deal with as opposed to putting it at the front end of the project.
Aarti Shrivastava:
• Said it could be required at final occupancy where the person is allowed to occupy the
building, tenant the building, or rent it out. If they don't show the certification documents
within 18 months they would forfeit the deposit. It reduces the timeframe from building
permit to when they get into the building. �
Com. Giefer:
• Said they have discussed how the fee would be presented as a bond or line of credit; but not
talked about the appropriate percent, which is more important; because she was not sure they
were close at all. Asked what the square footage cost was, floor and ceiling.
Aarti Shrivastava:
• What was provided last time was $2.00 per sq. ft., minimums and maximums for each type of
units types, single family minimum is $3,500, maximum of $5,000; for multi-family a
minimum of $40,000, m�imum of $55,000; for non-residential building minimum is $70,000,
maarimum of $150,000. The Planning Commission can look at a certain percentage of that or
100% of that.
Com. Giefer:
• Said it was expressed clearly in the ta.sk force meetings that developers were walking away
from the San Jose deposit because it was too low; they looked at it as a cost of doing business
in San Jose. She said she felt it was a dis-incentive and would not work with going with $.30
per sq. ft. because it is easy for people to walk away from. Said that the $2.00 per square foot
and the recommended minimum and maximums would be an incentive for proper behavior.
Com. Kaneda:
• Suggested they add on a recommendation to revisit it in two years; the concept has been out
there but there isn't enough history to get a good sense of what the right number is; the San
Jose number is not appropriate. There needs to be flexibility to fine tune it if the wrong
number is chosen, so that the city can revisit it.
Aarti Shrivastava:
• Said the fee schedules are adopted by resolution and they were seeking examples from other
cities; some have odd mechanisms such as if you don't meet the LEED certification they will
Cupertino Planning Commission 27 October 26, 2010
cite you administratively for $500 a day for as long as you are out of compliance. She said
there are more productive ways of doing that.
Walker Wells:
• Said the fee should be close to the cost of certification because one might think that it would
save them $500 and would rather pay the fee than go through the LEED process. As soon as it
• becomes lower than the cost of going through certification, it starts to function as an in-lieu fee
and that is what they are trying to avoid.
Com. Kaneda:
• Said he agreed, and suggested they try the numbers and see what the results are.
Chair Brophy:
• Expressed concern that the numbers were high for residential, and said he did not think they
should be formal certification of homes. If accepting the concept of formal certification, and
including single family homes, the fees should be set at a level equal to the cost. The fee
would be refundable if they prove the certification.
Walker Wells:
• Said when coming up with suggestions, he was looking more at the cost of going through the
LEED rating system; the GPR is slightly less expensive because there is less documentation,
so you could slide down the numbers for single family, some if you thought that was
appropriate.
Com. Kaneda:
• Agreed to do that because realistically the people who you are going to be concerned with this
are the ones who are going for the lowest hurdle.
Aarti Shrivastava:
• Suggested they go with $2,000 because that is the approximate cost and it is one amount.
Motion: Motion by Com. Giefer, second by Com. Kaneda, and carried 3-2-0,
Coms. Brophy and Miller voted No; to approve Application MCA-2010-04
as amended.
OLD BUSINESS None
NEW BUSINESS None
REPORT OF THE PLANNING COMIVIISSION
Environmental Review Committee: No meeting
Housing Commission: Chair Brophy reported that the City of San Jose cancelled their funding
for the rotating shelter, resulting in West Valley Community Services ending the program. The
Housing Commission voted to transfer the funds to West Valley Community Services for a
homeless prevention program.
Mavor's Monthlv Meeting With Commissioners: Meeting cancelled.
Economic Development Committee Meetin�: No meeting.
Cupertino Planning Commission 28 October 26, 2010
REPORT OF THE DIRECTOR OF COlMIlVIUNITY DEVELOPMENT
• Written report submitted.
Adiournment: The meeting was adjourned to the neat regular Planning Commission meeting
scheduled for November 9, 2010 at 6:45 p.m.
Respectfully Submitted: /s/Elizabeth Ellis
Elizabeth Ellis, Recording Secretary