PC 06-14-2011 CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
CITY OF CUPERTINO PLANNING COMMISSION
APPROVED MINUTES
6:45 P.M. June 14, 2011 TUESDAY
CUPERTINO COMMUNITY HALL
The regular Planning Commission meeting of June 14, 2011 was called to order at 6:45 p.m. in the
Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA., by Chairperson Winnie Lee.
SALUTE TO THE FLAG
ROLL CALL
Commissioners present: Chairperson: Winnie Lee
Vice Chairperson: Marty Miller
Commissioner: Paul Brophy
Commissioner: Clinton Brownley
Commissioner: Don Sun
Staff present: City Planner: Gary Chao
Senior Planner: Colin Jung
Assistant Planner: George Schroeder
Assistant Planner: Piu Ghosh
APPROVAL OF MINUTES:
1. Minutes of May 10, 2011 Planning Commission meeting:
MOTION: Motion by Com. Brophy, second. by Com. Sun, and carried 4 -0 -1, Chair Lee
abstained; to approve the May 10, 2011 Planning Commission minutes as
presented.
2. Minutes of May 24, 2011 Planning Commission meeting:
MOTION: Motion by Com. Brownley, second by Vice Chair Miller, and unanimously
carried 5 -0 -0 to approve the May 24, 2011 Planning Commission minutes as
presented.
WRITTEN COMMUNICATIONS: None
ORAL COMMUNICATIONS: None
POSTPONEMENTS/REMOVAL FROM CALENDAR: None
CONSENT CALENDAR: None
Chair Lee moved the agenda to Item 4.
PUBLIC HEARING
4. U- 2011 -06 Use Permit to allow 50% office use where 25% is allowed
Kenneth Frangadakis at an existing center located in a P(CG) zone
(DeAnza Professional Center) Planning Commission decision final unless appealed
10601 S. DeAnza Blvd
Cupertino Planning Commission June 14, 2011
George Schroeder, Assistant Planner, presented the staff report:
• Reviewed the application for a Use Permit to allow up to 50% office uses where 25% is
allowed at an existing commercial center in DeAnza Professional Center, as outlined n the staff
report. No physical building or site modifications are proposed.
• He reviewed the previous site approvals which were not built.
• Staff supports the proposal to allow more office, since the building was originally constructed
to allow more office uses than currently allowed. Conditions recommended include reducing
tenant spaces in building frontage for active commercial use; lot line adjustment to merge the
two parcels parking lot and main parcel into one in accordance with city policy; parking
analysis for every change of use; and screen rooftop equipment along DeAnza and other minor
site improvements.
• Staff recommends approval in accordance with the draft resolution.
• Staff answered Commissioners' questions relative to the application.
Kenneth Frangadakis, Applicant:
• Said he would prefer it to be 100 %; it is not a shopping center, but an office building since he
purchased it. Said over the years he has been denied tenants and it is difficult to restrict
different types of offices.
Chair Lee opened the public hearing. As there was no one present who wished to speak, the public
hearing was closed.
Vice Chair Miller:
• Asked if the Commission had the flexibility to increase the percentage higher than 50 %.
Gary Chao:
• Said the Planning Commission could do anything they wanted. He referred to Attachment 4,
which provided information on how they reached the conclusion, the comfort level of
supporting 50 %. Presently there are only two vacant spaces; assuming both those spaces are
going to go in as professional office, which means they will have a fully occupied center, that
would still work with the 50% ratio.
• Staff felt that given the past history of approval, and other implications to consider, it would set
a precedent for allowing a higher ratio. It would have to apply the same logic to other type
properties and given the fact that if they fill with professional offices, that would still operate
under the 50% rule, which staff felt was reasonable and consistent with the prior decisions. If
the Commission wants to discuss it and feels there are reasons to go beyond that, it is
something the Commission can consider.
Vice Chair Miller:
• Not sure it is setting a precedent because it was originally designed as an office building and it
doesn't fit; where the intention from the start was to have some other use in there; this was
designed as a 100% office and it looks that way; it is not conducive to the public going in
there. Said he would have parking out front that was easy to access if they were going to
design it another way. It is reasonable to say that since that was the use that it was intended for
and originally approved, that it is appropriate to let them continue to use it that way.
Gary Chao:
• Said staff cares about the frontage more than anything else; there have been discussions about
it when the Heart of the City came up even though this is not Heart of the City, but the South
DeAnza area is a core retail area. Said it was critical that the frontage tenants be more active,
which is why the commercial/office idea came about. He suggested that the Commission make
sure the frontage tenants are more active oriented as commercial/office or commercial.
Cupertino Planning Commission _ June 14, 2011
Com. Brophy:
• Said that looking at the list of tenants, he had difficulty understanding the difference between a
general commercial tenant and professional office tenant or the difference between an 800
square foot legal office and an 800 square foot insurance office.
Gary Chao:
• Said the ordinance defines those uses; there is a lot of flexibility; all those other uses are
allowed and they are not considered professional offices.
Chair Lee:
• Said she disagreed, and felt that in many cases, the professional office was a higher quality
building, with an overhang, more detail in the landscaping, a separate entry to escort patients
out. In a commercial district, there will be retail, with some travel agencies and similar
businesses.
• Said she agreed with staff that the professional office is different; medical/dental and tax
accountant or lawyer is different than real estate or travel agency; it is two separate things. She
said she felt the building was set up more for general commercial.
• Said she did not feel it should be increased to 50 %; it is not one size fits all, in this situation it
looks right, 10% to 25% general commercial seems reasonable. It is important to have a
balance of general commercial, a commercial district is needed. There are about 50,000 cars
that go down DeAnza Boulevard; there are definitely commercial works on DeAnza
Boulevard; this building is not retail, but there still are a lot of possibilities for general
commercial. Said it was important to keep part of the general commercial and not completely
turn everything over to professional or office. The applicant has been able to rent a majority to
some general commercial, it is mostly rented out.
Gary Chao:
• Said they were experiencing a high demand for commercial offices in town, including tutoring
and specialized classes; if you keep it at 50% you are allowing for these types, what we see as
more appropriate facilities to accommodate these commercial offices; personal service uses,
dance classes, etc. You are preserving at least 50% ensuring that there is space for them, and
there is a lot of demand, not just professional offices.
Com. Sun:
• Said he agreed with the analysis; there are differences between professional and general
commercial uses. He questioned what would happen if they turn 25% to 50% or 25% to 100%
based on the commercial building owner; he knows how to use his property for his best
interest, and then the regulation may be changed for the purpose of the entire community.
Gary Chao:
• Said the Commission could consider raising the percentage, they went through two rounds of
prior requests where they got approvals for it to be 100% office. In that regard there are
justifications to loosen that requirement.
• Recommended that the Commission be clear on the findings; he felt they would look at it
differently if it was a mixed use plaza in the same zoning district. He understood that they are
acknowledging that the facility itself is built not to facilitate successful retail therefore they
want to give them the flexibility of going to 100% office.
• Said he agreed with that justification; but to think about it in terms of carving out a percentage
for those uses that are actually struggling to find spaces as well, because there may be a
demand for office, and if all the offices go in it leaves little space for the tutoring classes and
dance classes to be able to find a place. It is up to the Commission to strike a balance, staff
fees that 50/50 is a good balance; in this case : it is set up more as a professional office complex.
Cupertino Planning Commission 4 June 14, 2011
Vice Chair Miller:
• Said his issue was that if the building and site was initially designed for a specific use, he
would have difficulty saying years later that the applicant is going to have to change the uses
that the building was put to. If it was originally designed and approved as buildings for
multiple uses, that is one thing; but when it is specifically designed and being used for a single
use or certain category uses, it is difficult to make a determination after many years that we are
now going to change how the building is going to be used, even though the building may not
be designed for those other uses. He said that is why he did not see it setting a precedent or
creating issues for other applications coming in, and he felt it was reasonable to allow the
applicant the flexibility that he has always had with the building.
Com. Brownley:
• Said that he agreed that the owner had a good understanding both from having owned the
building for a long time and understanding how to make the best use of the space. He agreed
that they should enable that flexibility especially if it was developed that way in the first place.
Com. Brophy:
• Said one possibility is to allow 100% but consider the staff recommendation on excluding the
spaces that face directly onto DeAnza Boulevard, approximately 85 %. Given the design of the
structure, it is not easily suited on the interior spaces for many general commercial uses.
Com. Brownley:
• Said he liked the idea; looking at the building next door that shares the parking lot, it looks like
it is being renovated and will have doors facing DeAnza and there will also be adjacent
properties with that same look and feel, so it would fit within that sidewalk section.
Com. Brophy:
• Suggested phrasing it to exclude that the front spaces 107, 108, 208, 209 be reserved for uses
permitted under the general commercial ordinance; staff can clean up the language on the final
document.
Gary Chao:
• If that is the direction, he suggested avoiding using number of tenant spaces because that
changes sometimes; either square footage, or the fact that the tenant spaces that have footage
along DeAnza, are good references for consideration.
Motion: Motion by Vice Chair Miller, second by Com. Sun, and carried 4 -1 -0, Chair Lee
voted No; to approve Application U- 2011 -06 with the change to permit office uses
for most of the center except for the offices that front on DeAnza Boulevard.
The agenda was moved back to Item 3.
3. U - 2011 - 05, ASA 2011 - 06, Use Permit for four, two -story single family dwellings on
EXC 2011 - 06, TM 2011 - 01 0.30 acres; Architectural and Site approval for four, two -
Chris Weaver (Habitat for story single family dwellings; Parking Exception to allow
Humanity) a parking ratio of 2 stalls per dwelling, in lieu of the
Cleo Avenue required 2.8 stalls, garage and open) per dwelling, for a
small lot family residential project; Tentative Subdivision
Map to subdivide 0.30 acres into 4lot and a common area lot for a single family
residential development. Postponed from May 24, 2011 Planning Commission
meeting; Tentative City Council date: July 5, 2011
Cupertino Planning Commission 5 June 14, 2011
Colin Jung, Senior Planner, presented the staff report:
• Reviewed the application from Habitat for Humanity for Tentative Map, Use Permit,
Architectural and Site Approval and Parking Exception, for construction of four single - family
residences on 0.30 acres, as outlined in the staff report. He reviewed the background of the
application and the project site data. Staff feels that there will not be a significant economic
impact from the project; and feels it will improve the neighborhood as presently the area is in a
state of blight.
• Staff answered questions relative to the project.
Chris Weaver, Director of Development, Habitat for Humanity, Silicon Valley:
• Answered questions relative to the maintenance agreement between home owners and Habitat
for Humanity and explained the selection process for potential home owners. Preference is
given to current Cupertino residents, they must provide 500 sweat equity hours of labor in
building the home; and they must fulfill requirements similar to those of regular mortgage
applicants, and have a good credit rating and the ability to manage the mortgage payments.
Chair Lee opened the public hearing.
Jennifer Griffin, Rancho Rinconada resident:
• Said she felt the potential homeowners should be entitled to the same Cupertino parking
standards of 2.8 spaces, not the modified 2 spaces.
Chris Weaver:
• Said Habitat for Humanity would provide the full 2.8 spaces per unit if possible; however, the
space for the project is limited. She noted that Habitat for Humanity's regulations permit 2
persons per bedroom, and the proposed units are 2 bedroom units; therefore only 4 people
would be permitted in each unit and 2 spaces per unit is adequate.
Motion: Motion by Vice Chair Miller, second by Com. Brownley, and unanimously
carried 5 -0 -0, to approve Application U- 2011 -05, ASA- 2011 -06, EXC- 2011 -06,
TM- 2011 -01, per the model resolution.
5. U - 2010 - 02, TR 2011 - 09 Use Permit to allow a new daycare facility at an existing
Tony Chen (Yunjian Zou/ office building. Tree Removal Permit to allow the removal
O - Mei Academy) and replacement of 3 trees in conjunction with parking lot
10070 Imperial Ave. and landscaping improvements at a new daycare facility.
Planning Commission decision final unless appealed
George Schroeder, Assistant Planner, presented the staff report:
• Reviewed the application for Use Permit for a daycare center and tree removal permit for
removal and replacement of three trees, on Imperial Avenue, as outlined in the staff report.
The proposed site is located in an area with general commercial uses, condos, single family
housing and automotive repair uses; the playground does not abut the residential area. The
existing business operates as a martial arts academy and a dance studio, which will be
expanded to operate a day care /after school program serving up to 40 children. The business
currently operates as a heritage school which is not subject to State DepaOrtment of Social
Services regulations.
• The site is currently accessed by one existing non - conforming 16 -foot wide driveway entrance
from Imperial Avenue. Staff is requiring the applicant to widen the driveway to 22 feet to
allow for safer passage of ingress and egress vehicles; existing power poles and cable utility
box must be removed in order to facilitate the widening of the driveway.
• Staff supports the project and recommends Planning Commission approval of the application
Cupertino Planning Commission 6 June 14, 2011
in accordance with the draft resolutions.
• Staff answered questions regarding parking, drop off/pick up of children, and removal of utility
poles.
Yunjian Zou, Applicant:
• Said he was proud to offer the services and daycare services to Cupertino.
Chair Lee opened the public hearing.
Michael Trotter, Cupertino resident:
• Supports the project.
• Said his son attends O -Mei Academy and his family also takes other classes offered by the
Academy. He complimented the Academy on its high standards and curriculum.
Shirley Long, Cupertino resident:
• Opposed to project.
• Said the business has changed the environment of their street without the after school program;
and she had concerns about safety, noise level, traffic, and parking. She said she also felt it
would have a negative impact on the property values on their street.
• Although the school offers parking in the back, during the after school hours, no parents like to
go to the back, they park on the street and kids are walking out on the street freely. She said
she wanted to address her concerns about safety.
• Relative to the report on noise, she said there were many issues that needed to be addressed,
and information corrected. It should address compound noise level; currently the program has
an after school program, add 40 children, typically Cupertino offers additional classes and
attendance is more than what the report says. Address the 15 minute outdoor break for each
group; holidays offer all day program; a four month period has programs all day long; address
traffic control.
Surjit (no last name given):
• Owns property across the street from the academy; parents drop children off and don't
supervise their crossing the street which raises safety concerns. Noise level with more children
is higher; concerned about parking.
• Said she thought daycare licenses were not approved when next to an auto repair shop; said she
was told her property was multi -use commercial and residential.
Jennifer Griffin, Rancho Rinconada resident:
• Cupertino has many new daycare facilities going in; the site is appropriate for a daycare center;
the owner seems very responsible; martial arts is a good cultural experience for children; good
idea to extend driveway to 22 feet.
• She expressed concern about the railroad track in the back of the property and the safety
concerns for the children; would fencing be provided? Also concerned about Imperial Avenue
running into Stevens Creek Boulevard where there is no traffic light.
Charles Chan, Cupertino resident:
• Supports the project.
• Said he has assisted with translation services at the academy. He has visited the facilities for a
couple of years and has not seen any cars speeding in the area, and not experienced any traffic
concerns or issues with excessive noise. The utility pole should be the responsibility of PG &E
and not the property owner to pay the cost of removal,
• He said in his opinion the academy beautifies the neighborhood and if safety issues arise, Mr.
Zou will act in a responsible manner to address them.
Cupertino Planning Commission 7 June 14, 2011
Yongolong Liu:
• Said his children have benefited from the programs offered at the Academy. Said he
appreciated its services and felt it was an important part of the community.
Brenda Liu:
• Said she was a resident of San Bruno and teaches classes at the academy three times a week.
She complimented Mr. Zou on his high caliber of expertise. She said that every business runs
into obstacles and particularly in a school area, there are neighbors with frustrations and
concerns. She said they would work to improve on complaints from neighbors. She felt the
cost of removing the utility pole should not be the property owner's responsibility.
Hui Zhang, Cupertino resident:
• As a parent of a child in the daycare, said she understands the concerns of the neighborhood on
parking and safety. Said that parking was not a big issue, most of the students are after school
hours. Options to help mitigate any concerns could include hiring people to monitor the
parking.
• The school is an important part of the community, it creates a good environment for the
children, and provides excellent programs.
Sharon Chan, Cupertino resident:
• Supports the application.
• Said her daughters take tai chi lessons at the academy, and was grateful for Mr. Zou's
instruction and dedication as a teacher and coach. She said that she was not concerned about
safety near the academy as traffic moved slowly in the area; sometimes her children ride their
bikes to the academy and she does not feel they are in danger.
Chair Lee closed the public hearing.
Com. Brophy:
• Relative to outdoor play area times, he asked how it would be handled administratively if they
wanted to change the time in the future.
Gary Chao:
• Said that if the hours of outdoor play or number of children are increased, staff would have to
use some discretion because of some noise implications; and it would have to be presented at a
public hearing. If the change is within the scope of what they are presenting, and there is no
significant impact, the Director can make the minor modification.
Vice Chair Miller:
• Is staff concerned about traffic flow; it looks like there is potential for problems which is that
no one will pull in and use that drop off; they will just continue to drop off at neighboring sites.
Gary Chao:
• Said he was not aware of existing traffic concerns at the site or in front; he felt the project will
enhance the interface, which is the reason for recommending widening the driveway to 22 feet.
• Remind everyone that currently there are 9 parking stalls in the back parking lot, which will be
enhanced to 13. There is also onstreet parking available for the patrons to use. He said he did
not foresee any problems.
Vice Chair Miller:
• Suggested opening up on the south side; take parking stalls 7 and 8 and make access to the
neighboring lot so people can be one way in and one way out; or at least give people a separate
egress.
Cupertino Planning Commission 8 June 14, 2011
Gary Chao:
• Said it was a potential option for them to consider; in order to make that happen, it would
require that the property owner provide a consent of reciprocal access agreement, usually
standard for projects where the applicant is required to provide consent to their adjacent
property owner; the flip side is that the other party would have to also provide an access
easement. There is a slight potential grade differential, but given that could be resolved, the
hindrance would be securing the access easement from the adjacent property owner.
Vice Chair Miller:
• Relative to the issue of some children being dropped off across the street from the academy
and running across the street; it may work at the current level, but if adding a significant
number of additional children, he said he would like to know there is some way of addressing
it, similar to what has been done in the past during drop off and pick up hours. The school
would have to provide a traffic monitor or someone to make sure that the parents are doing
what is expected of them which is to facilitate the drop off and pick up. (Staff noted that it is
included in the condition that a staff member from the daycare center is to facilitate safe drop
off and pick up or assist with the traffic navigation)
• Relative to the utility pole removal, if the pole is not high voltage, the owner has options; there
are rules that state below a certain level of voltage, you can use a private party to remove the
pole. It is worth checking into since the private party fee may be lower than the PG &E fee to
remove the utility pole.
Gary Chao:
• Staff can coordinate with Public Works and PG &E and draft a condition to mention that
applicant will work with staff to explore alternative options of either relocating or removal of
the utility pole. Ultimately the rule is what the rules are, so staff will help the applicant explore
that with PG &E.
Com. Brophy:
• Said he walks past the academy twice weekly and does not perceive any traffic problems; the
traffic moves slowly and there are not a large number of cars at any one time, Said he did not
feel that a condition was necessary; however the property owner should inform his clients not
to park on the properties across the street, which would help alleviate the concern and
unhappiness of the residents across the street from the academy. The noise level is not an
issue; and there are many satisfied customers of the academy who look forward to the
expansion of offerings from the academy.
Com. Sun:
• Welcomed the academy to Cupertino. Relative to the safety issue, he encouraged the applicant
to take the responsibility to make sure his clients don't infringe upon neighbors' privacy.
Chair Lee:
• Concurred with Commissioners' comments and said it was important to educate the parents
and encourage them to use the back area for parking.
Gary Chao:
• Pointed out that Condition 6, already requires a drop off/pick up plan, and aside from
delineating the stalls with proper signage, safety features, the plan shall delineate general
pedestrian vehicular safety guidelines for parents. The language is included to emphasize that
to the applicant they need to prescribe an educational plan, if not guidelines, perhaps part of the
agreement they have to sign with parents agreeing to comply with those guidelines for them to
review as part of their orientation.
Cupertino Planning Commission 9 June 14, 2011
Vice Chair Miller:
• Asked if they could add that staff will explore- a reciprocal easement agreement.
Com. Brophy:
• It appears that by removing that pole and expanding it from 16 to 22 feet, the applicant has
reached a reasonable solution, 16 feet is rather tight and would discourage people. He said he
would be hesitant to hold up the project dependant on the whims of an adjoining property
owner.
Vice Chair Miller:
• Said he wasn't suggesting that it be a requirement, but merely have staff look into it.
• If the applicant has to deal with PG &E on the pole removal, it could be a year before it is taken
care of as PG &E moves slowly. Suggested that the project be allowed to move forward with
the understanding that the pole could be removed when PG &E gets to the project.
Motion: Motion by Com. Brownley, second by Com. Sun, and unanimously carried 5 -0 -0
to approve Application U- 2010 -02, TR- 2011 -09 per recommendations.
Chair Lee declared a recess.
6. DP 2011 - 01, ASA 2011 - 08, Development Permit application for two new, 2,697 sq. ft.
TM 2011 - 02, two -story single family residences; Architectural and Site
Terry Brown (Robert Adzich) Approval application for two new 2,697 sq. ft. two -story
10216 & 10232 Orange Ave. single family residences; Tentative Parcel Map application
to subdivide a 0.28 acre parcel into two parcels of 6,000
square feet each.
Piu Ghosh, Associate Planner, presented the staff report:
• Reviewed the application for Development Permit application for two 2,697 sq. ft. two -story
single family homes, Architectural and Site Approval application and Tentative Parcel Map to
subdivide a .28 acre parcel into two parcels of 6,000 sq. ft. each, as outlined in the staff report.
• Staff recommends approval of the application.
Terry Brown, representing Robert Adzich, Property Owner:
• Said that the demolition of the properties will commence as soon as possible, with
construction of the two units to follow.
• In response to a recent email complaint received about the plumbing on a previous project he
was responsible for, he said he was not aware of the complaint until yesterday. He said that
the home was in a development he was responsible for, built by Jim Sisk and the home is
over 20 years old, and the sender has owned the home for 5 years, and was the third owner of
the home. He expressed regret that someone was dissatisfied with work they assumed he had
done; and he called them the previous evening and invited them to meet with him show him
what was wrong. He said he was willing to repair anything he did and stands behind his
work; but reiterated that he had not been aware of a problem until the previous evening.
Chair Lee opened the public hearing.
Tom Adamo, Property Owner of 10206 Orange Avenue, adjacent to project property:
• Supported application in general.
• Did not see any resolution about utility poles; they are in the middle of the road; once this is
constructed and the sidewalks are pulled back and there is a dedication, there will be a pole in
Cupertino Planning Commission 10 June 14, 2011
the line of sight of any cars. What is the city's position on the poles; is it responsibility of the
city or PG &E.
• Asked if there was a requirement for fencing on the property lines of the project; Expressed
concern about the long construction hours, particularly the weekend hours, and asked that
consideration be given to reducing the weekend hours.
• Asked if street lighting would be incorporated into the project; said it impacted the
neighborhood particularly at his site next door.
Chair Lee closed the public hearing.
Piu Ghosh responded to Mr. Adamo's questions:
• Any poles in the right of way along the frontage of this particular property, Public Works will
work to get those pulled back, where it will underground utilities to the homes;
• The city does not require fences along property lines; it is at the pleasure of the property
owner. Regulations regarding fences are available on the city's websites; 6 foot fences are
allowed without a building permit at the property line behind the building setback line;
• Construction hours are dictated by the noise ordinance; they are in the resolution to clarify for
the contractor and applicant.
• Street lighting ... page 107, should be installed and approved by the city engineer; Public
Works will look to see if a light will be required; if one is required, the applicant is responsible
for putting it in along the frontage.
Gary Chao:
• Said that the conditions require street lighting; it does have provisions to prevent glare, and
other forms of visual interference. Public Works has standards which the property owner must
adhere to.
Motion: Motion by Vice Chair Miller, second by Com. Sun, and unanimously carried
5 -0 -0 to approve Application D P- 2011 -01, ASA- 2011 -08 and TM- 2011 -02 per the
model resolution.
OLD BUSINESS: None
NEW BUSINESS: None
REPORT OF THE PLANNING COMMISSION
ENVIRONMENTAL REVIEW COMMITTEE: Meeting scheduled for this week.
HOUSING COMMISSION: No meeting.
MAYOR'S MONTHLY MEETING: No meeting.
ECONOMIC DEVELOPMENT COMMITTEE: No meeting.
7. REPORT OF DIRECTOR OF COMMUNITY DEVELOPMENT: Written report.
Adiournment: The meeting was adjourned to the next regular Planning Commission meeting
scheduled for June 28, 2011 at 6:45 p.
Respectfully Submitted: O 'Y Y ' /; ' _r
Elizabeth is, Recording Secret!
Approved as presented: June 28, 2011