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PC 11-10-2014CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 CITY OF CUPERTINO REGULAR PLANNING COMMISSION MEETING APPROVED MINUTES 6:45 P.M. NOVEMBER 10, 2014 CUPERTINO COMMUNITY HALL TUESDAY The regular Planning Commission meeting of November 10, 2014 was called to order at 6:45 p.m. in the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA. by Chair Paul Brophy. SALUTE TO THE FLAG ROLL CALL Commissioners present: Chairperson: Paul Brophy Vice Chairperson: Winnie Lee Commissioner: Margaret Gong Commissioner: Don Sun Commissioner: Alan Takahashi Staff Present: Assistant Director of Community Development: Gary Chao Assistant City Attorney: Colleen Winchester Assistant Planner: Kaitie Groeneweg APPROVAL OF MINUTES: 1. Draft minutes of October 28, 2014 Planning Commission meeting: Motion: Motion by Com. Gong, second by Com. Sun, and unanimously carried 5-0-0 to approve the October 28, 2014 Planning Commission minutes as presented. WRITTEN COMMUNICATIONS: None POSTPONEMENTS/REMOVAL FROM CALENDAR: None ORAL COMMUNICATIONS: None CONSENT CALENDAR: 2. Cancellation of the 12/23/14 Planning Commission meeting. MOTION: Motion by Com. Gong, second by Com. Sun, and unanimously carried 5-0-0 to cancel the December 23, 2014 Planning Commission meeting Cupertino Planning Commission 2 November 10, 2014 3. R-2014-13 Applicant: Mohsen Jalili 10355 Stern Ave. Appellant: Amitava Biswas 10550 Sterling Ave. Patricia Kornesczuk 10566 Sterling Blvd Location 10558 Sterling Blvd. Appeal of a two-story permit approval by the Director of Community Development to allow the construction of a new 2,872 Sq. Ft. single family residence. Planning Commission decision final unless appealed. Kaitie Groeneweg, Assistant Planner, presented the staff report: • Reviewed the appeal of a two story permit to allow a 2,872 sq. ft. single family residence, as outlined in the attached staff report. A Power Point presentation was provided reviewing the Basis of Appeal Nos. 1 through 6 including the staff response to each appeal. Vice Chair Lee: • Asked staff to explain the meaning of predominant neighborhood pattern and what a neighborhood would have to go through in order to create something where only a single family house could just be one story. Gary Chao, Assistant Director of Community Development: • As part of the review the RI ordinance calls for general level of compatibility in terms of massing and also design of homes; however this has been implemented in the past up until now by homes meeting the required envelope and setback and height requirements. Most if not all of the single family residential neighborhoods are in a state of transition, meaning there are many homes built in the 50s and 60s, and in recent years there are lot of homes that have been redeveloped and rebuilt that are more newer, modern. The R1 ordinance does not call for matching of a predominant theme or style, it calls for meeting the prescribed ordinance standards. • In the past, one or two neighborhoods got together and petitioned the city to have the zoning ordinance changed so they can have an extra layer of standard to their liking. Adding a layer of standard can entail a single story only or some sort of special setback along the front or the back; however it requires a rezone procedure and does require the neighborhood to get together to file for a zoning change request. The majority of the neighborhood would have to consent to such requirements; in this particular location the project site is not located in one of those special R1 zoning districts that had that more restrictive overlay; this is in the standard R1 zoning district which is basically the same throughout the city. The petitioner claims that the proposed two story house infringes upon their solar rights, they claim it is too massive and will cast a shadow on their property. He refers to a section of the ordinance which talks about solar rights. The ordinance basically by default is protecting solar rights through standards set forth in the R1 ordinance. • Reviewed the noticing process followed for the application. The city sent out two notices to neighbors within 300 feet because halfway through the process the applicant and property owner decided to tweak the second floor, consequently they had to send another courtesy notice to the neighbors to inform them there was a revision to the proposed plans, primarily the second floor design. The City Council, at the last R1 revision, decided not to send out full plan sets to folks because they felt it was not environmentally friendly. Staff will email plan sets to those requesting them or they can go to City Hall to review them. • A second notice is sent out after approval of the project; at that time notifications are sent out to those members of the public who have expressed comments or concerns in the public comment periods or review period, in which case they may provide new input or additional file for appeal which the petitioners did. Cupertino Planning Commission November 10, 2014 Com. Sun: • Asked staff how many times before the public hearings did the petitioner come to City Hall to talk to staff. Staff said she met with the neighbor multiple times.during the comment period; however has not had any meeting since they filed the appeal; she offered to meet with them after they filed the appeal on October 6ffi. Because we see the base for the appeal, they have one city staff responsive; there is a lot of factual dispute. Gary Chao: • Said that Kaitie Groeneweg met with the petitioner and also talked to the petitioner and applicant via phone, email and correspondence; the appellant can attest that staff has asked that the appellant work with the petitioner and see if they can get together and work out their differences and they can talk more about that effort. Staff feels they have done their part in terms of reaching out and responding to the petitioner; it may not be the answer that wanted to hear, but they were fully aware of the city's intent to approve prior to staff approval. Amitava Biswas, Appellant: • Said that throughout the process there has consistently been information omitted, pages missing from the reports, and incorrect information given out. It was not mentioned that there would be a basement and the pages of the plan with the information about the basement were missing from both noticings. When he requested a geotechnical report, the second report was not sent which points out a great amount of risk. The decision was not reported and when he checked to see what happened with the decision, he learned he only had 8 hours to file an appeal. There were also other instances that raised red flags that they were being manipulated. • There are two ordinances, one is not consistent with the neighborhood pattern and all those things happened because nobody challenged it and people are not lawyers. There is a second ordinance which clearly states that the granting permit will not result in a condition that is detrimental, injurious to property or improvements. • He said he had a list of events as evidence and which can prove that there have been consistent omissions which appear to have been conveniently done and preplanned. In addition to all the violations of the two sections and the solar rights, it is clear that you can't put shade on the other property and he said he had a plan to put solar panels. The building is not a two-story building, but is actually a three-story building with a substantial basement. Patricia Kornesczuk, Co -Appellant: • Said she was concerned that they were not informed at the beginning there would be a basement, as well as the geological issue of being in an earthquake fault pattern which could affect their homes. Said she was disappointed the applicant wasn't honest about what was being built. Chair Brophy: • Asked if they wanted to keep the privacy screen between the applicant's house and her lot. Ms. Kornesczuk said she thought the windows would re shaded or pearlized. Manesha Gravell, Co -Applicant: • Said many contentions and issues have been raised but most relate to problems resulting from how the city has proceeded with things. He said they have been cooperative in redeveloping the neighborhood; every three or four homes has a two story home next in line. They have been holding the property for the last 8 or 9 months trying to redevelop it and are still making rounds. Said he met with appellant Amitava Biswas and made significant changes to the plan proactively and he still has objections; the biggest one being that he doesn't want a two-story house. He said he felt they had been very accommodating and there has been no malintent in his dealings. Cupertino Planning Commission 4 November 10, 2014 Mohsen Jalili, Co -Applicant: • Said that the appellant is concerned about the solar, which the city approved. He commented that his home is not so large that it covers the shade to the appellant's home. The appellant is also concerned about the height, setback of the zoning is 15, other area in Cupertino setback is 10, 5 feet from inside but this particular zoning is 15, meaning they we have option of 5, 10 or 7-1/2. He said they chose 20 feet from his side and 5 feet from her side. He noted that the engineers are liable for their actions; he said he is neither a soil engineer nor a geotechnical engineer. The engineers reported that it was okay to have a basement; they are responsible for their action and he as a builder is responsible at least up to 10 years for what he is doing according to the court and city regulations. He said it was unfortunate and frustrating that they have been put in the position they are in, and he doesn't want to work against any neighbors; but wants the project to move on in a friendly manner and right way. Hamid Balzavid, Project Design Architect: • During the design process several decisions have been made to address petitioner's concerns. One is the minimum setback based on code and ordinances which have been set from the beginning in order to protect neighbors' rights, and at the same time the new builder's rights for having a new home either being built to live in or have next to your house; all these building envelopes, regulations, setbacks, height are in concert with the solar angle and that is being studied. Said they revised their plans several times in order to work with the applicant on their concerns and reach agreement to please everyone. Com. Sun: • Said the appellants mentioned several times there are omissions about geotechnical report and other reports. He asked staff to explain about the claim of intentional omissions from the report. Gary Chao: • Said there has been no omission of any information relating to geotechnical reports as claimed by the petitioner; there are file records of email correspondence between staff and the petitioner responding to his request to see the geotechnical reports. It is confusing because of the fact that there is a basement for the project; there has been 2 geotechnical reports prepared, one for the basement and one for the main house; and both reports conclude that while it is in the liquid faction zone and is closer to the creek, but with certain measures being implemented for that the project, there is no concern. The conclusion of the geotechnical report has been reviewed by the city's geotechnical consultant; the full set of the various geotechnical reports prepared by the property owner as well as the peer review comments prepared by the city's geotechnical engineer are available for Planning Commission perusal. Typically geotechnical reports don't go before the Planning Commission, the building official is required to make sure that whatever construction that is being proposed is going to go through another thorough round of building code, fire code, plan check process which case additional structural foundation soils investigation will be prepared, reviewed by the city and inspected and carried out. There is another phase of the plan check process prior to the construction that has not been discussed and is still in the works; the property owner has to make sure that the construction meets the standard building code as it pertains to all bay area cities. Com. Takahashi: • Asked staff if the basement seismic report was an addendum or was it a second report generated after completion of the first report because there was a basement added to the plans? Kaitie Groeneweg: • Said it was not part of the first round, it was a supplemental report provided during the second round of noticing. Now it is because the basement was added to the plans after the first report was done. Cupertino Planning Commission 5 November 10, 2014 Com. Takahashi: • Said the appellant's claims are serious from the standpoint of deliberate omissions; from the standpoint of records and sequence of events to show that the second report was available for public, is an important thing to establish; what needs to be done to make sure that is the case? Gary Chao: • It has been made available throughout the process; the petitioner can go to City Hall to review the file. The report has been emailed to him per his request. Chair Brophy closed the public hearing. Com. Sun: • Said his preference was to approve the project, and deny the appellant's appeal; partly because the audience is already angry, and he felt the basis for the third floor has not established the grounds to appeal. He suggested that the procedures be reviewed to prevent future omissions, regardless if they are deliberate or not. He said he did not feel that the omissions were deliberate. Following today's appeal, they can work together to resolve the issues regarding solar rights. Com. Gong: • Said that based on the appeals presented, as written in the application, staff has done a good job in responding to the appeals and it appears that the responses were answered positively. She said she did not have basis for approving the appeal. Vice Chair Lee: • Reviewed the six bases for appeal. The first basis from the appellant was the geotechnical concerns. Said she reviewed the mitigation measures and the draft resolutions and felt they should be sufficient as far as it has exact wording that the construction cannot impact the neighbors' foundations or houses. Gary Chao also mentioned that there is an added layer for buildings and inspections over and over and building codes that are met after the project have been approved. • The second basis for appeal with predominant neighborhood patterns, the RI ordinance should apply and it has been reviewed and amended several times and it is not to negate the ability of providing for a second story and for turning over into second story because it is a mix; a neighborhood in transition; the RI ordinance doesn't prevent from having a second story and that was not the intent. That has been reviewed many times and appears to be what the city wants. Property owners should have their rights for a second story as prescribed in the ordinance which is 28 foot height. • The third basis was failure to provide notice and the fourth was due process; staff feels like there has been due process that noticing was provided as required. The fifth and sixth basis relate to the solar rights which goes back to the 28 feet; the project data suggests the applicant has met and exceeded it by lowering their maximum height to be good neighbors and they have also exceeded the setbacks according to the project data. • Staff said that if a neighborhood wants to be part of a special zoning, part of a district, the neighbors can get together and apply for rezoning; it is a long process but it can be done and there has been some neighborhoods that want to preserve it and have another layer of special standards, which is very restrictive. She said she personally would not want another layer if she had property in Cupertino. Some of the neighborhoods in the area want it so it would take a lot of time; if there are neighbors that want that, they need a majority; it is not a special district. Said she did not support granting the appellant's request, would likely vote no for the appellant's request and deny the application for appeal. Com. Takahashi: 0 In terms of the project and its impact, to all the elements of the RI zoning as well as all the Cupertino Planning Commission 6 November 10, 2014 accommodating factors that the owner/architect have put into place to mitigate as much as possible, the impact on the neighbor, are consistent and positive elements that warrant approval of the project. The appellant has a strong feeling an injustice has taken place in/and somewhat of a deliberate act, that is the claim; which is a serious allegation. He said based on the facts, he supported the project but wants to be sure that the allegations and omissions stated are actually not valid; and it appeared to him that it may be a case of change of plans somewhere along the line in terms of adding the basement and that having a ripple effect. He said he doubts there has been deliberate deception going on but it is at least worth making sure that the plaintiff's claims are unfounded. He said that Vice Chair Lee's points are valid from a standpoint of consistency with the R1 zoning effort, zoning codes and providing the larger of the setbacks in terms of the 15 feet and how that is divided. As far as property values, which is typically a major concern for the residents, this addition will tend to increase property values which is a benefit to the overall neighborhood as long as there is a level of consistency which the city is attempting to look for in the plans. Chair Brophy: • In cities that are neighborhoods going through transition in a similar area, it is sometimes a difficult process; there are homes built in 1950s that were 800 to 1,000 sq. 8. one floor units. As the aerial indicates, there has already been substantial change in the neighborhood and with tearing down or rebuilding of one story homes into two story homes, to the extent that applicants meet all the requirements in terms of height, setbacks, maximum FAR, and there is no request for exceptions, the Planning Commission tends to assume that lacking something unique about the site, they will go ahead and approve it. He said he did not feel anything was unique in this case; and he agreed with colleagues and would vote to deny the appeal by the appellant. MOTION: Motion by Vice Chair Lee, second by Com. Sun, and unanimously carried 5-0-0 to deny the appellant's appeal to Application R-2014-13, and uphold the Community Development Director's decision, and approve the Draft Resolution OLD BUSINESS: None NEW BUSINESS: None REPORT OF THE PLANNING COMMISSION: Environmental Review Committee: Discussed the hillside exception Housing Commission: No report. Mayor's Monthly Meeting With Commissioners: Chair Brophy will attend the upcoming meeting. Economic Development Committee: No meeting REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: Written report submitted. Adjournment: • The meeting was adjourned to the next Planning Commission meeting on November 25, 2014 at 6:45 p.m. Respectfully Submitted: Elizabeth gVs, Recording Secretary Approved as presented: December 9, 2014