.05 Early Review option discussion
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CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014
DEPARTMENT OF COMMUNITY DEVELOPMENT REPORT FORM
Agenda Date: July 8, 2008
Item Summary:
Discussion of early review option for development proposals
RECOMMENDATION:
Discuss this item and adopt a minute action recommending any revised process to the City
Council.
BACKGROUND:
The Planning Commission discussed the issue of early review of development applications on
May 13, 2008 (see attached minutes). The Commission adopted a minute action that
recommended that the Council authorize the Environmental Review Committee to provide
early input regarding conceptual development proposals. The Planning Commission's
recommendation was presented to the City Council on June 2, 2008. On June 2, 2008, the City
Council remanded the item back to the Planning Commission and asked that the Commission
advertise the item and invite developers to provide input and consider some other
alternatives.
DISCUSSION:
A display ad was placed in the Cupertino Courier (see attachment) and five developers were
called and invited to attend the meeting to provide input. If they were unable to attend staff
asked that they provide input in writing so we could convey their viewpoint to the
Commission. The Council direction asked the Commission to consider other methods for
broader community involvement such as applicant led community meetings and asked the
Commission to consider establishing a project size threshold for early review.
The verbatim minutes from the June 2, 2008 were previously provided to the Commission as
an attachment to the June 24, 2008 Director's report. If commissioners did not keep your copy
please call Traci Caton (777-3253) on Monday July 7, and a copy will be delivered to you. I am
providing a copy of the verbatim minutes to Commissioner Brophy since he was absent from
the June 24, meeting.
Submitted by: Steve Piasecki, Director of Community Developm~
Enclosures
Display advertisement for early review posted in the Cupertino Courier on Wednesday July 2, 2008
Staff Report dated May 13,2008
Excerpted Planning Commission minutes of May 13, 2008
5-1
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CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014
DEPARTMENT OF COMMUNITY DEVELOPMENT REPORT FORM
Agenda Date: May 13, 2008
Item -Summary:
Discuss possible improvements to the development review process
RECOMMENDATION:
Discuss this item and adopt a minute action recommending any revised process to the City
Council.
BACKGROUND:
On April 8, 2008, Chairman Miller appeared at the City Council meeting and suggested that
the City Council consider an early review option for decision makers prior to filing of a formal
planning application. The concept is that with early review applicants can be advised of major
issues or "deal breakers" when their application is in the conceptual phase.
DISCUSSION:
There are several public hearing principles that the commission should consider when
considering early review:
1) Maintain fair and impartial hearing for all sides
2) A void holding a public hearing before the formal noticed public hearing
3) Maintain the appearance and reality of objectivity of the Commission and City
Council
4) Allow the facts to come forward before reaching conclusions or project judgments
There are several models that the Commission can consider prior to making a
recommendation.
Town of Los Gatos
The Town of Los Gatos has a conceptual development review committee that consists of three
planning commissioners (out of seven) and two council members (out of five). Applicants are
given the option for a relatively low fee to present their early concepts to the committee for
feedback. Staff reports that it works fairly well.
City of Santa Rosa
Santa Rosa has a separate design review committee that allows "concept review." The
committee has strict rules for concept limiting the discussion per item to no more than fifteen
minutes and charges no fee.s
5-3
Discuss possible improvements to the development review process
May 13,2008
Page 2
Environmental Review Committee
The Cupertino ERC gets the first look at development applications and frequently provides
advice to developers on "hot-topic" items. The Commission could recommend that applicants
be given the option of appearing early for a concept review prior to filing the application. This
model has the benefit of using an existing committee and with only one council member and
one planning commissioner leaving the remainder of the commission and council independent
of criticism that they have decided the application prior to the formal hearings.
Applications typically go through several phases prior to developing their plans. The first
contact is made with staff when the application is considered confidential. Staff rigorously
respects the confidentially to avoid disrupting a negotiation that may be in process.
Staff suggests that the application should be presented early following the confidential stage
and when they are in the conceptual development phase to avoid expensive redesigns. If the
commission recommends using an existing committee like the ERC then we could offer the
service for a minimal fee such as $500.
Submitted by: Steve Piasecki, Director of Community Developme~
2
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CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
6:45 P.M.
CITY OF CUPERTINO PLANNING COMMISSION
DRAFT MINUTES
MAY 13,2008
CUPERTINO COMMUNITY HALL
TUESDAY
The regular Planning Commission meeting of May 13, 2008, was called to order at 6:45 p.m. in
the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, California, by Chairperson Marty
Miller .
SALUTE TO THE FLAG
ROLL CALL
Commissioners present:
Chairperson:
Commissioner:
Commissioner:
Vice Chairperson:
Marty Miller
Paul Brophy
Jessica Rose
Lisa Giefer (arrived after roll call)
Commissioners absent:
Commissioner:
David Kaneda
Staff present:
Community Development Director: Steve Piasecki
APPROVAL OF MINUTES:
Minutes olthe April 8, 2008 Planning Commission meeting:
Motion: Motion by Com. Rose, second by Com. Brophy, to approve the April 8, 2008
Planning Commission meeting minutes as presented. (Vote: 3-0-0; Corns. Giefer
and Kaneda absent)
WRITTEN COMMUNICATIONS: Community Development Director Steve Piasecki noted
written materials related to agenda items.
POSTPONEMENTS/REMOV AL FROM CALENDAR: None
ORAL COMMUNICATIONS:
Deborah Hill, Cupertino resident:
. She explained her need to find housing by July 1st with Section 8 assistance. She provided
contact numbers and asked for assistance in fmding an apartment in Cupertino.
CONSENT CALENDAR: None
PUBLIC HEARING: None
OLD BUSINESS: None
5-6
Cupertino Planning Commission
16
May 13, 2008
Steve Piasecki:
. The only caveat to that is that the ordinance is Council's ordinance as well; if I have that same
direction from the Council then we can communicate to applicants freely.
Com. Brophy:
. Make a recommendation to the Council that they allow staff to review residential applications
with an emphasis on quality of design and to be open to requests for exceptions to the literal
standards as long as those designs improve the quality of what would be built.
Com. Rose:
. Said in theory it sounds like it would be something to try; but when looking at changing the
size of the second floor there are architectural issues and neighborhood issues; that type of
decision needs to go through a process. She said she was concerned about deciding off the
cuff to use that as a way to bait it along now.
. Suggested they wait until the next meeting when they know what they are going to be looking
at and decide the best way to do it.
Chair Miller:
. Said he had similar feelings; either way it is opening a wider issue. If we suggest that to th~
Council, they are either going to bounce it back to ask what the ramifications are in doing that,
and then we are into the discussion. Or they are going to do it at their level first, and they
would likely not do it at their level, but bounce it back and the result would be back and forth
and back into discussing it as one of the solutions to the problem.
. Com. Rose suggested they do nothing until they hear from the Council on May 20th, one week
away. He said he saw no harm in waiting to hear what the Council has to say next week.
Steve Piasecki:
. Summarized that the Commission would like to have a discussion about the Rl review process
on an upcoming agenda; so that they will have direction on sustainability; and take whatever
actions and motions at that time.
3. Discuss possible improvements to the development application process.
Steve Piasecki:
. Said he provided a summary staff report that talked about the principles of the public hearing
process, the importance of maintaining a fair and impartial hearing for all sides; and avoiding
holding a hearing before a noticed hearing because in terms of the fairness issue to both the
applicant and the public, they want to have the information available to them so they can judge
projects. It is important to maintain the appearance and reality of objectivity of the
Commission and Council and allow the facts to come forward before reaching conclusions or
project judgments.
. He reviewed Los Gatos' and Santa Rosa's models for consideration. He suggested that they
could use the existing structure with the ERC, which consists of one Commissioner and one
Council member, which he felt would meet the test fairly well because the rest of the
Commission and Council would not be weighing in; they would be giving them one
Commissioner and one Council member to provide the public view of the hot topic items.
. Said that in its existing structure, it doesn't change things a lot and it could probably be done
for a nominal fee and offered as an option. He said he would favor the ERC, as they already
have regularly scheduled meetings; concept review would be a topic instead of the ERC
looking at concept review. The advantage is that it gives the ERC the opportunity to say there
5-7
Cupertino Planning Commission
17
May 13, 2008
are some environmental issues you should be focusing on, so when you come back to us we
need to have that traffic analyzed or flooding potential or whatever else it might be.
Com. Brophy:
. It sounds like the advantage of the ERC is it imposes the least additional burden on the city
staff; they are already meeting and for little or no fee you are getting 15 or 20 minutes of first
look kind of comments. It appears that the mechanism also minimizes the concern that
somehow deals are being cut outside of the public hearings.
Steve Piasecki:
. Applications go through a confidentiality phase as well that most people are not aware of and
applicants would not be coming forward with their concept review or asking for input until
they have passed that phase.
. The staff are members of the ERC; they would have ample opportunity to provide input; if the
Public Works Director felt that there was some hot topic item to alert the applicant to, he
would be free to do that.
Chair Miller:
. There are a number of different models; perhaps what we could do the next time we discuss
this is list the models out and highlight what the pluses and minuses of each of them are so that
we could be in a better position to look at all of them and decide what makes more sense.
Another option is not to do anything.
. He said he would list them out; he agreed that voluntary made sense as they don't want to
impose this on a developer presenting an application, but the intent is to facilitate the process.
He said the forums he considered were the one ERC presented; the one in Los Gatos would be
to have 'a minority of the Planning Commission and the Council sit on a committee and review
it; and the next forum was to hold a hearing here at the Planning Commission with all the
Planning Commissioners.
. There is the ERC model, where it is potentially built into the process now, or there is the
model where you add a couple of Council members, and I see that each one of these models
has pluses and minuses and perhaps the next time we discuss it, staff could put a little thought
behind that and give us some idea of what staff thinks and we could talk about what the pluses
and minuses are.
Chair Giefer:
. Asked if there was a reason to continue the item instead of dispatching the item tonight.
Chair Miller:
. Said, he felt it was important to have a full Planning Commission, and Com. Kaneda was
absent.
Com. Brophy:
. Said he felt the Los Gatos model smells of a way to get around the public hearing
requirements; there are three of seven commissioners, two of five council members and it
doesn't pass the smell test in his mind. As to having a non-public hearing public hearing, as
somebody who has been an applicant before Planning Commissions, I would not want to have
to go that route. You have all the negatives of a public hearing and none of the positives; and
as a neighbor who has been to the Cupertino Planning Commission, I would not like that route
either because I feel like something was coming up before the Planning Commission without a
noticing process. That strikes me as the worst of both worlds. It seems to me that the ERC
approach is simple, it's quick and I am not sure why there is a need for a fee, if we go to the 15
5-8
Cupertino Planning Commission
18
May 13,2008
minute rule and there is an understanding that staff is doing no additional prep work, or just
say they get their 15 minutes to make a presentation and to get any feedback from that.
. Said he would prefer to dispatch it tonight.
. Said he preferred the ERC over the option of doing nothing.
Chair Miller opened the public hearing.
John Stubblebine:
. ~ked if the smaller developments such as single family homes, have to go through all the
process also.
. Can't the confidential process in effect answer most of the questions about what the hot
buttons are? Does staff know what they are likely to be?
Steve Piasecki:
. Responded that no one is required to go through the process; it is being discussed as voluntary
now. He said it would seem inappropriate for a single family house with possibly the
exception of the one on Vye Avenue.
Jennifer Griffin, Rancho Rinconada resident:
. Recalled the issue about someone wanting to build on the floodplain down by Blackberry
Farm by the golf course; and when she heard that came out of the city that someone was
proposing to build condos there, she was pleased that the city seemed to be aware that there
was a 100-year floodplain, and it was not a good location to have people living there. That was
before we annexed to Cupertino.
. Said they have to rely a great deal on the city staff to make sure that they do the initial contact
work with some of the proposals that will come into the city.
. Some of the larger projects I am sure developers will range from extremely naIve to extremely
good builders who have built before, and that is why there are city staff to make sure the
developments in the city are something that are going to benefit the city, not be a public hazard
and that are not going to basically upset the residents of the city who have to live and shop
there. .
. There will be controversy, but the first initial contact with. the developer is the city staff and
they do a very good job in fending off or hoping to ask the developers to be reasonable, and
come up with a quality project.
. Just as with a private home, I am relying that the city staff has adequate knowledge of
architecture, the current R1 laws, the ordinances for safety, etc., but when we do have
discussions about proposals of expediting builders' projects going to fruition, it makes me
nervous.
. We need to make sure the public is involved the entire way because any project of quality that
ends up being built in Cupertino has to have the public input, because the residents have to be
proud of what is built in the city, or they are not going to shop there; and if it is hideous and
ugly it will reflect poorly on the city. Please make sure the public is involved the whole way.
Chair Miller closed the public hearing.
Vice Chair Giefer:
. Said she agreed with most of what Com. Brophy expressed; her only concern is she felt they
are a community that is very suspect of side deal making. One advantage might be that less
developers would contact the decision makers individually to have this discussion.
5-9
Cupertino Planning Commission
19
May 13,2008
. Said the question that arose after listening to speakers' comments, especially about the 100-
year floodplain, were we dependant on which Commissioner and Council member sits on the
committee; are they familiar with all the issues within the city; do we really know every aspect
of what the city is, or will it put an additional burden on staff?
Steve Piasecki:
. Said that a separate committee would burden staff; it would have to be advertised separately,
and agendas prepared. The ERC would not be a tremendous burden.
Vice Chair Giefer:
. Is it adjunct because staffhas already gone through and looked at the zoning?
Steve Piasecki: .
. Said they do that with the applicant early on in the confidential phase. He said that going to
the ERC would be very expeditious. If there is a problem, staff would report it to the '.
Commission and Council. He said he felt it would work very well.
Com. Brophy:
. Said as long as it is emphasized to staff that there has been a history of divided votes both on
the Commission and the Council, and that the applicant, whatever advice they get mayor may
not turn out to hold.
Vice Chair Giefer:
. In addition, it is a public forum; it is already a public meeting. She said her greatest concern is
that there not be the appearance of back door deal making; therefore she would be more
comfortable in that situation.
Steve Piasecki:
. Suggested that whatever is recommended to the Council, they try it on a temporary basis and
weigh in on how it is being perceived and whether it is good, bad or indifferent.
Vice Chair Giefer:
. Said she would only support an optional program, not a mandatory program; and that she
would prefer to dispatch the item tonight.
Com. Rose:
. Said she shared her colleagues' thoughts, and at the last meeting she expressed concern about
the possibility of having the appearance of a back door deal, or to the applicant's credit, could
think that they are given this direction that will later be approved. Whetl?-er it is the public's
perception or the applicant's perception, she said she felt they were walking a very thin line on
Issues.
. However, it does sound like this area of the process might be improved by offering an optional
direction through the ERC. It should be a limited time on the agenda that an applicant could
chose to have in front of the group and get feedback on their project.
. If done, she would like to see it done as a temporary measure and then review its effectiveness
and also have public comment to review how it is being perceived publicly as well.
Chair Miller:
. Relative to the intent and purpose, he said he thought the intent of this, is first of all, not
necessarily to expedite as one of the speakers mentioned, but to facilitate. The present process
is that it goes through staff and staff spends a lot of time up front, and when the Commission
5-10
Cupertino Planning Commission
20
May 13, 2008
sees it, it is already pretty much set in stone. If they try to change it, there is a lot of push back
because they spent a lot of money and they don't want to respend their money. There is
pushback and less susceptibility or openness to additional arguments. Nobody is suggesting
that the public is being locked out of this in any way. .
. He said it was bis view and effort to give the applicant further input as to what is going to be
acceptable after staff's review from the Planning Commission and/or the Council to help them
and guide them in terms of what they produce and what they actually draw up and color and
spend money on.
. If you agree that is a worthy objective, and that it therefore will save us time and money
because if they have a better idea up front of what. might be acceptable or not; we are still
going to go through the Peter Pau process that we are going through now; but we are still
going to have to talk to staff.
. If you accept that premise, then when we look at the different alternatives; however, my
concern would be that there is only one member of the Council and one member from the
Planning Commission and they are not really getting a view of what the Planning Commission
or Council is doing or expects; unless we expect that that member is going to fairly represent
everyone's point of view.
. The other issue is it cannot be done at the same time as we are doing environmental review,
because we are doing it before they have come up with their project. It has to be a separate
hearing and it is goilig to involve additional staff time because it is going to be a separate
hearing and a much earlier date; we would look at environmental review.
. While that looks appealing I have some questions about that. That doesn't necessarily mean it
is better or worse than the others, but that is my first take on that one.
. I understand the one about the two plus two idea; the concern is that it looks like it is done in
private, but it really is not because that has to be a noticed hearing as well; the advantage of
that one is that at least there are two members of each commission that are trying to be more
obj ective about representing the rest of the body that they came from. However that also has
its drawbacks in terms of you are not representing the full body. The next one is it comes
before the Planning Commission, and in my mind, at least from the Planning Commission
standpoint, and not from the Council; we will give the developer an indication of what the
Planning Commission is feeling or not feeling.
Com. Brophy:
. Said his concern was that they were having a pre-public hearing/public hearing and from both
the perspective of a concerned homeowner, it seems like generating more conflict.
. Said he did not see how the process helps either party; there is a sense that it is something that
walks like a public hearing, quacks like a public hearing, but is not called a duck. By having
an informal process with the ERC, even though you only have one Commissioner and one
Council member who may see the world differently than their colleagues do, at least you also
have the benefit of having the staff there who has already reviewed the product internally and
offer their suggestions as to what issues might come up.
. They are not making any recommendations but at least they are giving a heads up to the
applicant. She said it was the best they can do.
Chair Miller:
. Said it made sense; he pointed out that the process of having the Planning Commission is the
same as having a study session, and developers and the city have used the study session
process in the past; sometimes successfully. When it was done offsite it was perceived as
clandestine; when it was done in the Council chambers, it was perceived as more fair and open
to the public; but the study session is essentially this model, except it is just with the Planning
Commission. We could have a study session with both the Planning Commission and the
5-11
Cupertino Planning Commission
21
May 13, 2008
Council. Said he would only propose that for big projects, not for individual houses; but larger
projects such as the ones coming this year. However, the drawback of doing both the Council
and Commission is the Council tends to overshadow the Planning Commission; the Planning
Commission doesn't really get its input.
. The argument for doing it with just the Planning Commission is the Council is always going to
be weighing in, and to some extent developers on large projects are going to be contacting
Council members individually long before they are moving ahead. The one body that gets left
out in the cold is the Planning Commission. This is an opportunity for them to get some input
from the Commission as well. Whether you call it a study session or something else; it is the
same thing they are doing with staff and the same thing they are doing with the Council, in a
slightly different format.
. Said he was not prepared to make a decision tonight as he felt they had not received adequate
input. It hasn't been noticed to the public very well and we haven't heard if we are trying to
do it to benefit the process, and we haven't heard from the people who are integral to the
process, from perhaps Peter Pau and some other developers in town, and take some input from
them. We also haven't heard from the public which was everyone's concern that we don't do
anything without public input, and here we are proposing to make a decision on this tonight
without having adequate public input. .
. Proposed that the item be continued and noticed properly and ask staff to take down the notes
and put some thought to it and bring it back one more time to make a decision. Also at that
time to take some input from people they are trying to benefit and see if it is going to be a
benefit to them and a benefit to the city and the residents to add this particular aspect to the
process.
Com. Brophy:
. Said he understood Chair Miller's point, but he felt it was a relatively minor matter that should
be dealt with. Whether or not individual developers prefer not to' use the pr'ocess, there is a
unanimous agreement that this is purely a consensual process and they can chose not to use the
ERC if they so wish.
. He said he would prefer to resolve it tonight.
MOTION: Motion by Com. Brophy, second by Vice Chair Giefer, that the ERC option as
outlined by staff be used.
Vice Chair Giefer:
. Said she understood from the staff report that the applicant who may be coming before the
ERe for the early information meeting may not necessarily be the applicant who has attended
the ERC meeting. It could be somebody who has finished the confidential point of view, has
not :fiiushed their documents, or it could be three candidates with 15 minutes each.
Steve Piasecki:
. Said that was possible.
Vice Chair Giefer:
. Said she would support that.
Com. Rose:
. Should we consider doing this on a temporary basis and see the feedback we get in six months
from the community. Is that something we want to do.
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Cupertino Planning Commission
22
May 13, 2008
Vice Chair Giefer:
. Seeing that it is an optional program, if we kick it off and we have had nobody take advantage
of it for six months, what would the process be to terminate the program if it is not effective.
Steve Piasecki:
. If you had a second look at it in six or nine months, at that time the Commission and/or the
Council could weigh in and say that nobody has taken advantage 9f it, let's scrap it. That is
done with Use Permits sometimes.
Amendment to
Motion:
Vice Chair Giefer amended the motion to include that it be reviewed after
nine months. Com. Brophy accepted the amendment. (Vote: 3-1-0; Chair
Miller No; Com. Kaneda absent)
REPORT OF THE PLANNING COMMISSION
Environmental Review Committee: No meeting.
Housing: Commission: No report due to Com. Kaneda's absence.
Mavor's Monthlv Meeting: with Commissioners:
Vice Chair Giefer reported:
. May 15 is Bike to Work Day.
. May 23 is Bike to School Day at Monta Vista High School.
. The library sponsored a fund raiser where the library gets the proceeds from sales of Chicago
tickets at DeAnza College.
. New Parks and Rec Director Mark Linder has been hired.
. The Telco Commission; if residents are experiencing difficulty with either provider AT&T or
Comcast, please let Telco Commission know by email.
. The CDDG may be merging with the Housing Commission.
. The City has appropriated $300,000 for a shelter for battered Asian women and their children
within the city.
. A number of Earth Day events were held.
. The remaining bricks for the Memorial Park Veterans Memorial have been delivered and
installed.
. Budget hearings will be held throughout May; Green Building hearing is on May 20.
Economic Development Committee:
Com. Brophy reported:
. A presentation was given by the developers of the Rose Bowl site. Goal is to pull building
permit sometime in 2009; they are in discussions with the owneI:s of the Sand Hill property
site to coordinate their design concept with whatever comes out of the Sand Hill site especially
as it relates to ingress and egress and traffic flow.
. There are some issues regarding the conflict between the owners and lenders in Cupertino
Square.
. There is a possibility that the Chicago show at Flint Center may be cancelled.
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