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PC 07-28-97CITY OF CUPERTINO 10300 Torte Avenue Cupertino, CA 95014 (408) 777-3308 APPROVED MENUTES OF THE REGULAR MEETING OF THE PLANNlNG COMMISSION HELD ON JULY 28, 1997 SALUTETOTHEFLAG ROLLCALL Commissioners present: Commissioners absent: Austin, Mahoney, Roberts, Chaixperson Hams Doyle Stuff present: Robert Cowan, Director of Community Development; Ciddy Wordell, City Planner; Bert Viskovich, Director of Public Works; Eileen Murray, Deputy City Attorney; Charles Kilian, City Attorney APPROVAL OF MINUTES: Minutes of the dune 12, 1997 Adjourned Meeting: MOTION: SECOND: ABSTAIN: ABSENT: VOTE: Com. Mahoney moved to approve the minutes of the Jtme 12, 1997 Adjourned Plannin~ Commission meeting as presented. Com. Roberts Chair Austin Com. Doyle Passed 3-0-1 Minutes of the duly 14, Regular Meeting MOTION: SECOND: ABSTAIN: ABSENT: VOTE: Com. Austin moved to approve the minutes of the July 14, 1997 Regular Planning Commission meeting as presented. Com. Mahoney Com. Roberts Com. Doyle Passed 3-0-1 POSTPONEMENTS/REMOVAL FROM CALENDAR: 2. Applicant: Location: Emie Piccone, Tandem Computers 18880 Homestead Road Review application for Certificate of Compliance related to conditions of approval. ENVIRONMENTAL DETERMINATI ON: Categorically Exempt PLANNING COMMISSION DECISION FINAL UNLESS APPEALED REQUEST CONTINUANCE TO PLANNING COMMISSION MEETING OF AUG. 26, 1997 Planning Commission Minutes 2 July 2g, 1997 MOTION: SECOND: ABSENT: VOTE: Com. Austin moved to postpone Item 2 to the August 26, 1997 Planning Commission meeting. Com. Roberts Com. Doyle Passed 4-0-O ORAL COMMUNICATIONS: None VOllTTEN COMMUNICATIONS: Chair Harris noted correspondence from the Friends of the Stevens Creek Trail, relative to the Diocese property; letter from Dermis Cunningham, Cupertino Historical Society, relative to the Snyder House on the Diocese property; letter relative to PG&E property on 1090 Blaney Ave. PUBLIC HEARING Application No.(s): Applicant: Property Owner: Location: 6-U-97, 4-TM-97, 5-Z-97, 2-DA-97 and 15-EA-97 Steve Zales/O'Brien Group Diocese of San Jose South ofl-280, west of Foothill Blvd. and Rancho San Antonio County Park and Stevens Creek Blvd. APN No.(s): 342-05-054, 056, 059, 060 and 342-52-003 Consideration of a Development Agreement for the following: Use Permit to construct 177 residential units and ancillmy improvements on approximately 67 acres of the 212 acre property. Tentative Map to subdivide approximately 67 acres of the 212 acre property into 168 lots. (Previously advertised as a Vesting Tentative Map.) Zoning to rezone approximately 67 acres of the 212 acre property fi.om Agriculture (A), Quasi-Public (BQ) to Planned Development/Residential (P/RES). ENVIRONMENTAL DETERMINATION: Negative Declaration Recommended TENTATIVE CITY COUNCIL HEARING DATE: August 18, 1997 CONTINUED FROM PLANNING COMMISSION MEETING OF JULY 14, 1997 Staff presentation: Ms. Ciddy Wordell, City Planner, referred to the discussion outline, and highlighted the areas that would require discussion. She said that there would be some changes to the conditions recommended since the packets were distributed. Ms. Wordell stated for the record the issues related to the park and the proposal for park mitigation. She referred to the vesting tentative map and illustrated the areas for the proposed neighborhood park and the alternative location. The City Parks and Recreation Commission has recommended that there not be a neighborhood park in the area; the development itself does not require neighborhood park based on the population per acreage. The population from surrounding neighborhoods does not have good access to a park in the area. Because of the developer's offer to dedicate land and City staff's position not to accept it, staff is recommending that there be no neighborhood park, and in lieu of a park fee normally imposed, the applicant if approved for 177 units, would donate 2 lots to the city to use as a later time at City's discretion. If an additional lot for 178 units is allowed, which the General Plan allows, the developer would donate 3 lots to the city. She said that two tot lots are part of the development agreement. Ms. Wordell said that the change to 20 lots would still be in compliance with the General Plan. Planning Commission Minutes 3 July' 2~, 1997 Ms. Wordell explained that there were some concerns about the County not acc*pting the public land until a certain amount of devalopmont was completed; the number of concexns w~re related to people having access to the lands during the construction period; liability; safely and security. Staff met with the County subsequent to the last Planning Commission meeting to see if agreement could be reached on how the dedication might occur. There is total agreement that they will accept the lands; that the city would have some soft of agre~nent to that effect at any time; which is not the issue; the issue is when, and they had proposed some formula for dedication as we talked about it more among ourselves and with the applicant. There were some problems with their proposal that staff did not feel it could come forward with at this time. What staffis proposing is that there be an agreement between the County, the City and the developer prior to recordation of the final map and it would come back to the Planning Commission and the City Council for approval, and then we would know the terms of that agreement. The applicant had expressed his concern that this could actually place his development up in the ak; if it is not really approved until that happens and he might not know for some time whether the development is approved, so as part of the discussion the Planning Commissioners might want to explore whether there is some other solution as far as a maximum time limit to thy to reach that agreement so the agreement isn't opened as long and does not hold up the development approval as long. Mr. Charles Kilian, City Attorney, stated that prelhninadly what there is, is the willingness of the political arm of the County to acc*pt for a neighborhood park the proposed dedication. What staff is faced with is not the political body but the bureaucratic end of the County which says we don't want to accept any liability or any cost associated with maintaining this until we absolutely have to and that could be several years from now because the last house built may take that long to be built. He reminded the Planning Commission that the dedication of this property for open space is a material inducement to the city for entering into the development and entering into the use permit conditions; and therefore very important that the city maintain the ability to require that it occur. Should the city, the developer, and the County not agree with the proposal, the developer would not get his final map for the first phase of the development. Mr. Kilian said he did not know how we could recommend a time limit because at the end of the time limit if there was no agreement, what would happen; is the development be approved without the dedication. He said the Parks and Recreation in the County should be more amenable to accepting this property; otherwise it may be a number of years before the County accepts all the land. In response to Com. Austin's question whether the city could assume temporasy note, Mr. Kilian said that legally the city could do that; however, it was not in the General Plan or the best interest of the city. He said the County needs to ease up on its requirements, as they want the property fenced completely and a number of things the staff feels is onerous. It was hoped by this recommendation to at least get some more time to deal with the county and still not have the final approval of the maps occur until the city gets final agreement with the county. Ms. Wordell said that another suggestion might be to see if it could be resolved by the next Planning Commission meeting so it could go to City Council with some more specific language. A discussion ensued regarding park dedication, wherein Mr. Kilian stated that Condition 18 on 6-U-97 was the operative condition developed by staff. It was initially suggested that "or the issuance of building or grading permits" be added to "18. PUBL1C OPEN SPACE" third line, following 'yinal map." Mr. Bert Viskovich, Public Works, clarified that the final map was the first step; there is no grading permit or building permit to be issued until the map is recorded. Following further discussion, it was decided that the modification to Condition 18 was not needed. Planning Commission Minutes 4 ]~l~j 28, I997 Mr. Kilian said that he felt the real effort was needed from the political area which may require that the condition remain and the Council deal with the County. He said that the developer would not like the condition because the project would be held up if the County did not agree. The Planning Commissioners reviewed Exhibit A, and discussed items which needed to be addressed further. Relative to Item 1, there was consensus to allow 1-24 to be two story, and the General Plan be maintained in all other places. Items 2-5 remain consistent. Item 6, design guidelines will be discussed at length later in the meeting. Items 7-11 acceptable, except for changes in land use map which will be discussed later in the meeting. Item 12, relative to the proposal to make the 100 foot setback private open space, Ms. Wordell explained that the County Parks prefers that the area be designated not public because it is difficult for them to secure it and would like to have it buffered. She said that it would also be difficult for the city to control the area. Discussion continued regarding private open space and linear parks (#7 of the Resolution for 6-U-97). Mr. Kilian pointed out that because of the lack of a homeowners' association or any type of association to enforce the restrictions set forth, means the city would ultimately have to enforce the restrictions and be involved. Item 13, Ms. Wordell illustrated the new location of the water tank on the map. Item 14, cemetery configuration, Ms. Wordell illustrated the previous cemetery line on the map and noted that because of a slope in the area that the cemetery would have found difficult to have as part of the cemetery, the slope was put into the public open space category and the area line moved as a tradeoff to make the land more usable, with the acreage remaining the stone. Item 15, Ms. Wordell illustxated the changes to the access road, which would result in less interruption to the public open space. Item 19, previously there was a discussion about the visual analysis that we hadn't analyzed the exact development arrangement that was coming forward and the staffrecommends that it would be costly to do that and we should use the original analysis that was for a larger development and the similar confignmfion. Com. Roberts said that he previously objected to it and still objected to it. Itean 20, grading: Ms. Wordell said that staff felt that the grading conformed to the General Plan requirement of being compatible with the natural forms, and for the most part is acceptable. Com. Roberts said he hoped the development would conform to the natural slopes to a greater extent. At the time of the General Plan emendment, and more recently, the Planning Commission was told that no lot on which building would take place, would slope at more than 10%, and he said that it did not agree with examples presented that show the houses would protrude to the extent approaching that of the Forum. 1 ~hink that is misleading. It is likely that it is easier and less expensive to develop this way because if each house has to be placed in a way that conforms to the natural slope of the land, it probably would not be possible to put down standards designs, essentially in a tract development mode, and he felt it was a deviation from what we were led to believe and the argumentation and justification of it is not forthright. Chair Harris questioned if that was the same for both the seminary development and the Cristo Rey, or would the Cristo Re-y, because the slopes are steeper, be subject to different guidelines? Ms. Wordell said that the slope of the development areas themselves is fairly consistent, in the pad area they were 2 to 5% and the average was 4%; staffwas concerned with the edges; and felt they would be areas of concern of the Planning Commission; and she said she felt all the areas do have edges where there is a fair amount of slope going down from the pads to the undeveloped part of the property. Planning Commission Minutes 5 July 28, 1997 Chair Harris said the question is would the houses on 2 and 3 be less prominent if they were rocked more into lhe hill, than built on a flat pad? Mr. Cowan clarified that the applicant earlier attempted to demonstrate what happens if you build literally to the natural landform with step houses. He said that the development was a flat land development, all the houses are designed to be built on a flat pad, and in response to Com. Roberts' in one sense if you were to literally comply with the exact words in the General Plan you have to follow natural landforms, you would fred some step level house, some with pointy walls, if you use that approach you would have higher wall frames and less landform disturbed. Com. Roberts said his rebuttal was if the slope is only 2 to 5% then those phony walls would be minimal. Mr. Cowan said it was the key point of the whole discussion, the question of the development pattern, the grading plan, and the architecture has been fi:om day one. He said if any hesitancy existed, the Planning Commission may want to put the drawing back on die board and review the concept because it is 8% of the issue. 1Vlr. Max Keech, Brian Kangas Foulk, refen'ed to the colored map of the cut, fill and restoration areas and explained the color coding of the grading plan (Item 20). He pointed out that the average slope was 3 to 4%, minimal ill the center and larger toward the perimeters. He said it was the edge conditions in the development areas where the slope presents itself. He said it was really by the design of the Planning Commission and City Council since one of the first things done in the General Plan is they identified those areas thai had a slope of 30% or larger and in effect took those out of the development areas, making the development areas those areas with less than the 30% slope; and looked at other factors such as riparian areas, the flog habitat etc. What that leads us to when we look at the development areas on the plan is the perimeter conditions of the development areas almost uniformly 3:1 slopes, and because that is where the break line occurs fi.om the greater than 30% slope. He said what they did on the grading on the edges is accepted as a maximum slope that they would use for grading purposes a 3:1 slope; which mimics the existing slope on the perimeters of the site; it also allows us to use no benches and no retaining walls. He said they graded the plan by rounding tops and bottoms of slopes as well as horizontal breaks in the slope. The staff had previously mentioned that there were 3 different approaches to looking at how to pad this out; and illustrated with slides. One is a flat pad, one is split level home; third is to use a flat home and use pony walls or stem walls to take up the difference. He Illustrated an area where was an existing 3:1 slope on the perimeter and then flatter grade inside the development area; which represents the existing grade. He pointed out one of the three approaches is that from the uphill side, and noted that they were identical; the difference in the approach is how it looks fi.om the downhill side. He discussed the different approaches to grading and explained the overall grading concept. Item 21, historic house. Chair Harris stated that thc County did not wish to take on the house but was willing to allow a separate parcel to remain with the city and a condition written allowing a two year period to provide time for an organization to come forward and deal with the house at the end of which time, if it cannot be dealt with, then it would revert to the County. Apparently the Cupertino Historical Society is workin~ on that issue. The conditions gives 2 years to work that out. The provision provides not only for the site but also for access. Item 22, tree protection/landscaping: Chair Haxris said that the significant issue was the maintenance issue and would be addressed later in the meeting. Item 23, red legged flog protection: Chair Harris said that the mitigations have been provided and staff feels it is acceptable. Item 24, stream protection: 100 foot private open space corridor. Item 25, public and Planning Commission Minutes 6 July 28, 1997 private open space: Chair Hams said that one of the issues was the dedication to the County. She discussed having riparian corridor private in area 1. Ms. Wordell said that staff was recommending an amendment. On the plans, the street and the linear parks are shown as right of way; staff would like to change that to have thc 28 foot street be the right of way and that thc linear parks in the private lots with an easement to the city for utilities and sidewalk; so the right of way would not be across the entire area, it would only be across the street. Condition 7 is now worded to indicate that. Com. Roberts asked if anyone recalled that at the time of the General Plan Amendment one of the important lines of argumentation in favor of the compromise was that private open space really didn't count permanently as open space because one was not sure what would happen to it, and it seemed the Planning Commission was conceding substantial amount of public open space. He said that although it was tree that the county did not want it, he felt it undermined the argument that led to the compromise. Chair Hams said that Com. Roberts' argument was well taken; it was not any different than having a larger lot and calling it a park. Com. Roberts said the issue was, does it count as an open space dedication; should it be counted? Chair Hams said that if it didn't count, then they haven't met the conditions they said they would meet at the time of the development agreement that the General Plan requires a certain amount of open space dedication. Chair Hams said that there were three options: the individual property owner, the city, or the community; and the original concept was that community would communally deal with all the so- called private open space; and now it is nothing more than a larger lot for an individual with development envelopes which is no different that we have in all communities; you cannot develop within the setbacks that are required in other zoning districts either; so that's an issue. Ms. Wordell said that in many cases linear parks provide extraordinary amount of setbacks that wouldn't normally be in a private development; some are 20 feet wide and the setbacks to them cannot be closer than 20 feet so we are in some cases getting a 40 foot setback which you wouldn't otherwise get; it vatSes; it can be as close as 28 but in some cases it would be 40 feet, which is of some benefit. Item 26, neighborhood park/tot lots: Chair Hams said there could be 177 lots; two of which are dedicated or there could be 178 lots which is allowed by the General Plan; three of which are dedicated. Mahoney said he had a preference for the fu-st (two lots); Com. Roberts said that it appeared that the additional lot would encroach on the wildlife corridor, and said he preferred two lots. Com. Austin said she favored two lots; Chair Hams said she preferred to have three lots. There was general acceptance of the two tot lots. Mr. Donald Woolfe, Planning Resource Associates, addressed Item 28, geology. He said that the way staff portrayed the geological requirements was a standard approach. There wasn't any significant problems encountered during the geological analysis and what Mr. Cotton's office is referring to is that there are things that need to be done prior to the issuance of building permits. There needs to be drawings that are certified and reviewed by the applicant's geologist and rechecked by the city geologist to make certain that all the requirements of the geological evaluation have been incorporated into the final working drawings and improvement drawings. Item 31, fencing was discussed. Refemng to an overhead tentative map, Ms. Wordell explained the markings for the solid fencing and open fencing, noting that most of area 1 is solid fencing; Planning Commission Minutes 7 July 28, 1997 with open fencing facing the riparian corridor; solid fencing against the road in area 2; against the cemetery and public open space on the edge; the outer area of areas 3 and 4 are proposed as open fencing. She said there was an issue whether solid fencing is acceptable in those areas; County Parks has concerns about solid fencing next to the parks. She said they have required that they landscape on the outside of the areas with vines to soften the appearance. The developer has issues of privacy being next to trails and would like to offer security and privacy with solid fencing. The second issue relates to what kind of fencing would be permitted between private open space and perimeter fencing. Staff recommends when outside perimeter fencing is open, there could be open fencing between the developed area and the buffered area but no cross fencing. The applicant felt that the property owner would have more use of the private open space, and would prefer open cross fencing so that the property owner could access their entire lot. The County Parks has said that they don't want any gates between the private open space areas and the county park lands and if it solid there is an issue of how someone will maintain the landscaping on the outside edge of the fencing. She noted that Condition 7 stated "no gates are permitted between the private and public open space, unless agreed to by Santa Clara Co. parks." Shesaidthatiftheydidnotagreeto those gates, they would not require the landscape screening. She reported that the County had indicated a preference for open fencing, and County Parks supported that preference. Ms. Wordell reported that staff is concerned that if there is not agreement to allow people to provide care of the vines that there would be a high fence with no landscaping, which is less desirable. She said that the original understanding of the private open space was as a transitional zone between the public and private space. With the new fencing scenarios, staff is looking at a different use of land than was previously understood. The preference would be no intermittent fencing perpendicular to the private and public open space; the preference is for Option I because they felt the open fencing was more conducive to the park character (adjacent the park), and then viewed the private open space as a transitional area or buffer zone, something that transitions from a residential home area out into a general private open space and the park. Staff felt that the open mesh fencing was compatible with the natural character out there. She said that two new fences were preferable, a fence between the lot and the private open space and another one between the private open space and the park is preferable; with a gate between the lot and the private open space for maintenance. She said that County Parks was concerned with access into the park, and would prefer not having gates from private open space into the park. Relative to the issue of the dedication of the actual open space to the county, she distributed the written statement which calls out the county's preference in the transaction. Chair Harris questioned the occupancy requirements in development areas 3 and 4. Ms. Sluiber from County Parks Department, responded to Chair Harris' question, 80% in area 4. Ms. Wordell said that when they were concerned about how long a period that would be, that was when they thought they did not need to be specific. Mr. Kilian questioned why it was tied to occupancy, if the property was adequately fenced or protected; why is it necessa~ there be occupancy of houses for there to be a dedication of the open space? Mr. Cowan clarified that the issue was relative to installing an 8 foot high chain link fence because the wire fence was not good for security; and the more people you have occupying, the more security you will have with the people living there. There are wonying about the people in the construction site getting into the park. Ms. Shriber said the intention of the 8 foot fence was, the county has originally discussed taking rifle to the lands at~er construction was completed; recently it became evident construction may go on for some length of time; their concerns pertain to taking title of land adjacent to an ongoing construction site, or one that is not properly monitored, controlled; doesn't have a presence in it; so if it is vacant, we have had problems in past similar situations, with certain liabilities which fell on the county as a result of taking title to lands too soon; and because of that planmng Commission Minutes 8 July 28, 1997 previous situation are very concerned about taking title to the lands while there is still a potential liability to County Parks. She said these are some means they have discussed recently at a meeting to help both accelerate the transfer but also protect them from those liabilities. She said it was fled to a vacancy rate as well as construction, and is worded loosely at this time because they are still discussing the details. Com. Roberts questioned why the County does not want to accept the 100 foot protection zone along the riparian corridor; and why does the County prefer to see that as private open space rather than public? Ms. Shriber said that because the County is limited in its resources to maintain stewardship of land and looks at this as a high maintenance area, that it would be difficult for them with their existing resources to include. She said that the County m discussions with the city has been very clear of what their position is, end she said she did not expect they would change their minds on areas already indicated as long as they could negotiate conditions for the timing of the transfer. Refemng to the overhead map, Ms. Wordell illustrated the location of area 4 mound the cemetery; and illustrated the location of the fencing as described in the handout. Following discussion, Ms. Wordell said that the unknown was that we wouldn't have en agreement on what the occupancy would be unless agreed to tonight; they would still have the open ended situation. Ms. Shriber said that there was no park land adjacent to area 3, so that is not relevant to them. She said they were under the impression that area 4 would take some time to build out, that is why it was a concern. She said that past experience has been that people jump fences when there is no presence there to enforce that and it was felt at the time the proposed agreement was written that both of these would be desirable. Mr. Kilien suggested that the developer could tell what the range of developing area 4 would be and what the timeframe would be. Mr. Steve Zales, O'Brien Group, said that they concur with the County that it would be important to fence off the property prior to dedication of park land. He said that the only issue being debated was whether there was some percentage of occupancy that is important before the County feels comfortable taking the land, particularly next to Cristo Rey. The proposal is to do the site grading put utilities through the park end into those areas in the first 12 to 24 months, and area 4 would likely be toward the latter part of the period, and likely start in area 1. The utilities would be put through, do the grading end the emergency access roads, then propose to fence the per/meter between the private open spaces around those areas, and the public open space to be dedicated. Rather then a temporary fence, it is proposed to put the permanent open wire fence on the property line which would be the 7 foot wire fence, or 8 foot if deemed significant. At that time the question is, is there a certain level of occupancy necessary for the park district to be comfortable? Because they feel it is a legitimate concern, they would propose during construction there would be 24 hour security on the property, which would enforce no access onto the park lands. He expressed concern that if the condition were to be 80% occupancy, it could in area 4 be 4 or 5 years out and if the economy slows down it could be longer than that. Mr. Kilian indicated that the term of the development agreement is proposed to be 7 years and stated that it was not unreasonable to see that area 4 may not be developed until the latter end of the term of the development agreement; and there would be a situation where the public is not allowed to use an area of the park because it has not been dedicated to the county for that length of time; and that is a real concern. Planning Commission Minutes 9 July 28. 1997 Chair Harris opened the meeting for public input. Father Michael Mitchell, representing the Roman Catholic Bishop of San Jose, owner of the property, addressed the linear park issue. He said it was implied that they had not been forthright in the matter, and he pointed out that the city had reneged in not taking the property; the city could take the linear parks if it chose to. He said the city has not, and he felt the city is passing the buck to anyone who will take it. He stated that the property was an offer; the city has chosen not to take it; and has decided to fred another mechanism to dodge its obligation of maintaining the parks. Relative to the second issue of timing, Father Mitchell said the offer is clear and has been since the General Plan Amendment was passed; the public open space is there and anyone who wants to deny the public the use of the public open space would be their difficulty. He said that it was up to the political bodies to work it out; and the offer rcnnains clear; they offered the space and were given the space and are now getting reasons why they can't take the space. He said that it seemed that they ware backing away. Relative to the 7 foot fence height in the cemetery, he said that it was built at that height to prevent deer fi-om getting in; and he felt it was an appropriate height. Chaff Hams asked Mr. Zales to discuss the fencing samples, and said that fencing options need not be discussed further. She clarified that Option 3 was the open fence at the perimeter, and no fence in the private open space along the subject properties. Mr. Zaies said that the General Plan se~ certain areas for private open space and public open space, and did not delineate any fencing criteria among the 100+ conditions. He said that with sensitivity to the public open spaces, the open fencing adjacent to as much of the future public lands as possible was most feasible. He presented samples oftbe wire mesh fencing, one with 6 by 6 grid, one with 4 by 4 grid, and one with tighter grid, rural style fences which were in keeping with the rural nature of the area and with the ability to keep people out. He said the proposal was for metal posts, which were smaller and less visually intrusive than wooden posts; that there be no posts across the top; and be unwelded wire to readily adjust to grade changes. He noted that any of the samples were appropriate, but recommended the 4 by 4 grid as a compromise in terms of amount of fencing per unit of area. He said that the question of perpendicular fencing on the side yards of the private open spaces or repeated parallel fence in the rear yard was an important issue, as the areas are in the General Plan designated as private open space, privately held with specific restrictions as to their use. He expressed concern with the recommendation for a parallel fence at the rear of the private lot, which is in essence a duplicate fence. Over half the area of private open space 20 feet wide, was meant as a buffer and was proposed in those areas because the park district was concerned about maintaining a fnce break in the perimeter of the property. They proposed private open space in the adjacent areas to the public open space and have the homeowners maintain the fire break. The park district was receptive because of the lack of funds in the city or county, and desire to ~duce maintenance. He said that the issue was privacy and security as they are the rear yards of houses; and iftbe private open space becomes a corridor where children, dogs, people can go walking it would be people within the community, but shared with 20 or 30 houses, then the applicant would request that the fence be solid. He said that it was a difficult area to patrol and because oftbe security risk, if you put it adjacent the public land, there would not be a public trail adjacent to the fence. He said that Los Altos residents requested that because of security issues, trails not be put right up to the back yards. He added that it would subject the city or county to liability if it was approved. He reiterated that it was not a good idea to have a hidden corridor shared by homeowners. Mr. Zales said that in area l, the north and south sides are adjacent to park trails into the park, and he suggested a wooden fence in that area. The homes are single story and with open wire fence; Planning Commission Minutes 10 July 28, 1997 there would be no privacy for the master bedrooms, in working with stuff, they were proposing to mitigate the solid fence in the two illustrated locations, put 5 feet of landscaping on the outside of the fence, move the fenceline in 5 feet, and the homeowners would be responsible for maintaining it. Mr. Zales said that when approving homes to be built, there should be a sense of balance between the rights and security of the future property owners and needs of open space in the parks. He said he felt they had accomplished more than what was set forth in the General Plan towards putting open fences around the significant open space areas. He illustrated the two areas which were the only ones in question whether they should be private or have a duplicate fence 20 feet away from the rear fence, which have to be solid fencing. Chair Hams questioned why the applicant did not want a homeowners' association to maintain the private open space. Mr. Zales said that it was not specified in the General Plan that there would be a homeowners; association for the linear park o, private open space. He said that homeowners' associations were typically used to maintain private areas such as a community pool, rec facility within a gated community or shared walls in condominiums. He pointed out that the development was one of large lots, with a linear park, and said asking the homeowners to form a quasi- governmental body to administer landscaping was not desirable for the residents of the project. He said he felt that the community would be one of the freest maintained residential communifie~ !~ Cupertino. Chair Hams asked why the vinyl clad fence seen at Vintage Oaks was not being recommended. Mr. Zales said that the fence style was more urban and the area in the Vintage Oaks was flatter. He noted that the fencing to be used would need to be flexible because of the hills, and would also need more posts. Chair Hams said that it was the appropriate time to disofa~ it~n 7, 6-U-97, relative to private open space and liner parks, maintenance and fencing. Com. Austin said she felt it was advantageous for the city if the homeowner would maintain the private open space. She said that because the homeowners are responsible, Option 3 was most appropriate. She recommended the 4 by 4 grid fencing, ~ or sprayed black, as it is not conducive to climbing and keeps people out, yet allows animals through. Discussion ensued regarding Condition No. 7, relative to the consequences to the property owner if they failed to maintain the landscaping and sidewalk. Ms. Wordell clarified that reference to other property owners being able to maintain landscaping, pertained to the linear parks in the front only. She said that the developer builds the tot lots and the city maintains the tot lots. Relative to the possibility of a lien for code enforcement for landscaping cleanup, Mr. Kilian explained that liens were put on property when authorized by state law for weed abatement, garbage; but there is no provision of state law allowing the city to maintain an area and then charge the prope~ owner, unless they sue them in court. The only exception to that would be an assessment district such as a landscaping district. He said the problem with assessment dislricts is that Prop 218 effectively ended most of them because each time there was a new assessment for new maintenance, a vote would have to be taken of all property owners, requiting a majority vote or two-thirds in some cases, which is very difficult to obtain. Com. Roberts said that he felt that focusing on the purpose of the private open space is meant that it is visual in part, but should serve wildlife habitat as well and should be connected. He said from that standpoint, he was against any fencing arrangement which would divide it by plots; it should be continuous and maintained in a consistent way. He said he supported Option 1, perimeter fence Planning Commission Minutes 11 July 28, 1997 adjacent to the public area an another perimeter fence between the private open space and the individual homeowners's lot with no perpendicular fencing, which is basically the county's proposal. He said he preferred the open style grid, with the largest opening that would permit permeation of wildlife (6 by 6 grid). Later in the meeting, he supported Chair Harris' recommendation that there be a homeowners' association to maintain the neighborhood. Com. Mahon.ey said that he preferred Option 3 with less fencing. He said that the smaller grid was more appropriate, not galvanized, or clad fencing. He said the language relative to the linear parks would be difficult to enforce, but he felt it would not have to be enforced much. Chair Hams said that she felt there needed to be a homeowners' association, because it was a quality neighborhood and they should want to maintain their neighborhood as a community. She said that there are parks that have no teeth in the maintenance program, and if there can't be an assessment district, there should be an association to take care of the business of living there. She said she felt Option 3 was appropriate; she concurred with the county's opinion about the corridor, but she also saw a safety issue involved. Chair Hams said that the vinyl clad fence was the most attractive, although more expensive, it would be more permanent and safe. Com. Austin said she did not support homeowners' associations, because of the problems involved. Mr. Kilian said that a possible compromise could be the requirement of a formation of a private open space maintenance association, whose duties and powers would be limited to liner parks only. Com Austin said that she would reluctantly approve the formation of a private open space association only, but overall would rather not have one. Com. Roberts agreed that it would serve the purpose. Mr. Zales commented that either a homeowners' association or private open space maintenance association would require the community to come together to set up an association, would need voting, assessments, dues collection, and other things that were not appropriate with this type of community. He said that forming another governmental body was not the solution, and he felt the properties would be taken care of in the development and he strongly objected to the proposal. Com. Austin reiterated that she would vote against formation of a homeowners' association or private open space maintenance association,. Corns. Austin and Mahoney said they were amenable to vinyl clad fencing, dark color, not galvanized. Mr. Zales said that the vinyl clad fencing would have to be painted as it was not available painted. Refemng to the map, Com. Austin said that she favored that the blue markings be the solid permanent fencing for security reasons; red markings be open space as proposed. Com. Roberts said he favored open fencing in all areas marked. Com. Mahoney and Chair Hams concurred with Com. Austin. Relative to Condition 8, 6-U-97, Chair Hams said that it was agreed not to have in lieu park fees, and recommended that it be called park mitigation. She suggested a change in wording: Replace "in lieu park fees will be paid consistent with the development agreement" with "park mitigation will be consistent with the development agreement." Mr. Zules clarified the size of the tot lot, the General Plan requires the comdor to be 100 feet wide minimum; in most places it is 200 feet minimum and through the linear park 130 feet. The other discussion with city staff regarding the tot lot, is that there is a 1/4 ace tot lot, even though it has been reduced from t60 feet wide to 130 feet wide, it is still 24,000 square feet; and is almost 2-1/2 Planning Commission Minutes 12 July 28, 1997 times the size set as an objective by the City. The extra lot and any revenues goes directly to the city. Chair Harris summarized that the vote was unanimous for the three lot dedication. Referring to Condition 15 (6-U-97) Design Guidelines: Chair Harris clarified that because there were no prebuilt residences, the language should read: "All residences shall conform to the design guidelines." Relative to Exhibit 15A, Site Development, Item 2: staff's suggestion was to use the first option shown by the apphcant in the drawings to have flat pads. Com. Austin said she was in favor of Option 1. Ms. Wordell clarified that by approval of the concept, the grading plans were being approved. Com. Mahoney and Chair Harris said they agreed. Com. Roberts said he preferred the natural slope, based on the relatively flat areas that were said to dominate within the building envelope; favoring the natural slope. Chair Harris summarized that the vote was 3:1 for the current grading proposal. In the St~le section, Exhibit 15A, Chair Harris suggested that the wording "For pre-budt and custom designed housing" be removed as they were unnecessary and misleading Ms. Wordell pointed out that some of the style names changed to conform to the new design guidelines proposed. Mr. Zales clarified the changes in style names. In response to Chair Hams' question. Ms. Wordell stated that the linear parks made up 7.8 acres, equal to 3.7%. Mr. Zales reported that the private open space was 15.5 acres total, or 7.3% of the total acreage. Discussion followed relative to the style names. Com. Mahoney said that the three styles were the least natural in meeting the original language of the General Plan to be "natural". Com. Roberts said that he agreed with Com. Mahoney, and also took exception to the Bungalow, as it did not resemble a bungalow style; recommended removal of Bungalow ~om the rural/traditional, western/rural style. Com. Mahoney concurred with Com. Roberts relative to the Bungalow style, and suggested it be put in the 20% category. Com. Austin said she objected to the Spanish Villa type style; Com. Mahoney said that in his opinion they were appropriate. Com. Mahoney summarized 70% for the first category, with the exception of Bungalow; 20% for the second category with the addition of Bungalow; 10% for the third category. Chair Hams summarized the categories: Timber Cottage; Country Manor 10%; Bungalow; Spanish; Spanish Villa; Spanish Ecletric; Monterey Colonial 20%; Crat~sman; Prairie; Farmhouse; Cottage; Carpenter Gothic; 70% list except for Bungalow in the 70%. Relative to building mass, Chair Hams asked the consultant to clmify the meaning of "what individual structures or groups of structures should be subordinate to the existing landform?" Mr. Woolfe explained that normally when it is stated that a strum should be subordinate to the land form, it is meant that the visual impact of the structure should not overwhelm the site; it should be subordinate to the site in terms of profile, size, shape, materials, colors, landscaping, etc. Chair Harris suggested that it be furtber clarified by adding "that is the visual impact of the homes shouM not overwhelm the site." Com. Roberts recalled that it was recommended that Area 2 not be built; Council decided otherwise and recommended step. He m~commended a prohibition on two story housing in Area 2. Ms. Wordell suggested that the design guidelines stipulate Area 2 only have single story homes. Mr. Woolfe indicated there were no phms for Area 2, and said they concurred with Com. Roberts that in visually sensitive areas, it was not appropriate to step houses Planning Commission Minutes 13 July 28, 1997 and double the mass where it was thought to have a single story house. He proposed that the lots that front Cristo Rey and others illustrated, not allow step lots (lots 2-1 through 2-5). He said that in other areas there was enough room to create 3:1 slope maximum and create building areas to eliminate the step. He proposed that lots 2-1 through 2-5 and 2-12 be restricted to single story only, flat pad development. Referring to the revised Exhibit 14A, Ms. Wordell reviewed the revisions to the chart relative to setbacks. She recommended that Footnote No. I be removed. Discussion ensued regarding setbacks. Chair Harris clarified that a 5 foot setback reduction in the setbacks listed on the first page would not be allowed. She said that she was not in favor of havin~ less than a 5 foot setback on one side of the house and a 10 foot setback on the other. Com. Austin agreed, but questioned what would happen with the tree. Com. Roberts said he was willing to consider some individual cases, but would not want it in the policy guidelines. Mr. Zales said that they work with arborists on what is best for the trees. He said it was not the intent to have zero setbacks in a side yard, but it would give stalT the discretion without saying it is a change in the condition of approval if it is justifiable. He said he was amenable to it stating either in 3 or 5 cases or less. Ms. Wordell stated that with the limitation of a maximum 3 cases would be acceptable. Com. Austin recommended that an architectural review subcommittee be formed to handle issues such as design guidelines, colors, etc. Chair Harris noted that it would be included as part of the work plan. Chair Hams recommended adding the footnote: "5. These items are standards; however, any standard not specially addressed that is an RHS, is a guideline." Mr. Zales said that they understood and respected the intent of the second story setback. As previously pointed out, interesting solutions result a~l in the case of some of the houses they already have, the only way to meet that would be to expand the size of the first sto~ of the house, still meeting the FAR. He said he felt the city would benefit from language encouraging architectural distinction on all the sides and elevation cfuiracter and shadow lines. Ms. Wordell clarified that the applicant would return ft¥ architectural review because the house styles are not known. Mr. Zales requested that a recomm~lldation be arrived at this evening. Relative to materials and colors, Chair Harris recommeltded that it state "less than 5% per house on any elevation" and that the trim and accent colors coring less than 5% of visible surfaces may exceed 77. Mr. Zales referred to the color board and illustrated the color reflectivity. Com. Roberts said that he was opposed to permitting an exception to the trim. Chair Harris noted that there were no issues on 5-Z-97; project is approved based on the zoning plat/map except as may be amended by conditions in the resolution; "neighborhood park" shall be called "public open space" and needs to comply with the accessory structure ordinance and not conflict with other provisions in the use permit or tentative map. Chaff Harris questioned if a condition was required indicating that it would not be done until there is agreement with the County Parks. Mr. Kilian suggested that the condition be not only in the use permit on the agreement with the County, but also in the tentative map TM, because when it comes down to approval of the final map, sometimes Public Works looks at the tentative map, and he said he would prefer those conditions regarding when the final maps will be filed should also be in the tentative map conditions. He indicated that they did not need to be included in the zoning. Planning Commission Nfinutes 14 July 28, 1997 Mr. Kilian stated that his recommendation was continued in the use permit condition No. 18. He said that the material submitted by the county left everything open, and more specifics are needed relative to knowing when they will accept the projects. He stated that there would be another agreemem executed before the final map on the first phase, which states that the county, developer and the city will agree on a time schedule and conditions. Unfortunately, it puts the developer in a situation that if the county didn't agree even though he had approval of the discretionary approvals, he would not be able to get his final map until there was an agreement. MOTION: SECOND: ABSENT: VOTE: Com. Austin moved to forward a Minute Order to City Council awing that the Planning Commission requested that they attempt to resolve the issue with the County, so that it can proceed with the understanding that there will be a restriction on development until the agreement is met Com. Maboney Com. Doyle Passed 4-O-0 Mr. Viskovich pointed out that the linear park was merely a continuous segment of front yards and he questioned the difference between someone else maintaining the different fiont yards than the homeowners themselves. He said the easiest solution to maintaining the ~ont yard would be the homeowner themselves. He said he felt it was not viable to form a homeowners' association in order to maintain front yards. Chair Hah'is said that she could not approve the stipulation that any other property owner may maintain it and seek reimbursement. She stated that on the tentative map, Items 18 and 7 will be added, change language relative to park mitigation on Item 5 to the same lan~mmge as in the Use Permit. Ms. Wordell clarified that the mitigation measure on Item 3 would be deleted relative to county parking, and recommendation on the staff report (Page 4 of the report) two mitigations are recommended for deletion; mitigation measure 3 relative to County Park parking; and 2-1 relative to installation of a traffic signal at 'Foothill Blvd. and 280. MOTION: SECOND: ABSENT: VOTE: Com. Austin moved to approve Application 15-EA-97, with the deletion of Items 3 and 8 with mitigated declaration. Com. Maboney Com. Doyle Passed 4-0-0 Ms. Wordell recommended a change on Condition 7, second to last line: Change to read: "all emergency access roads w#l be maintained by the City of Cupertino, except through the cemetery and through the FORUM development." Conditions 13, add 1-24; change to single pad. All lots shall consist of single story or split level homes except that 2-1 through 2-5 and 2-12 will be fiat pads, single story, and others couM be single story or split level. Planning Commission Minutes t~ July 28, 1997 MOTION: SECOND: NOES: ABSENT: VOTE: Corn Austin moved to approve Application 16-U-97 with the conditions as amended above, relative to Condition 7, with the exception of requirement of maintenance of the linear parks. Com. Mahoney Com. Roberts Com. Doyle Passed 3-1-0 Com. Roberts said that he voted no because he felt it was premature in thc absence of an agreement with the County. Mr. Kilian clarified that two members were not supportive of the requirement for an association for the maintenance of linear parks; and two were in favor of the formation of the association. Com. Austin said she felt it should be maintained by the individual property owners. Com. Mahoney said he would revert to the default for the rest of Cupertino per Mr. Viskovich's discussion, treating the area as extended front yard setbacks with building rights dedicated to the city. Mr. Viskovich noted that in Item 21, relative to street trees, as there is no right of way, there will not be any ~ trees; remove Item 21 and change numbering. MOTION: SECOND: NOES: ABSENT: VOTE: Com. Austin moved to approve 4-TM-97, including modifications to Condition 7 and 18 Com. Mahoney Com. Roberts Com. Doyle Passed 3-1-0 MOTION: SECOND: NOES: ABSENT: VOTE: Com. Austin moved to approve 5-Z-97 Com. Mahoney Com. Roberts Com. Doyle Pass~ 3-1-0 Com. Roberts left the meeting and did not return. There was a discussion regardin4g the development agreement 2-DA-97. Referring to Page 9, Chak Hah'is questioned the issue of maintenance, requiring the owner to maintain the property. Mr. Kilian clarified that the development addressed the development of the property; the required maintenance is a condition of approval which is part of the conditions and presumably part of the CC&Rs. Therefore, the development agreement deals with how the property is developed, the conditions and CC&Rs are permanent restrictions on the prol~rty. He said that in light of the Planning Commission's decision, 7-1 would have to be rewritten depending on the City Council's decision. He pointed out that although some thing is in the development agreement that appears to be ongoing in nature, does not mean that they terminate at 7 years because they are in the conditions of approval as well. Chair Harris said that there was potential for a conflict because the development agreement says the homeowner will be respons~le for the maintenance, and another page states the agreement will evaporate in 7 years. Mr. Kilian noted that it was not a confliot, but was read in conjunction with the use permit and under any scenario before the Council, the homeowner would be responsible Planning Commission Minutes 16 July 28, 1997 for the maintenance. He said that the language should be held in abeyance until it is decided by the Council how it will work. Refemng to Page 19, (13.2) of the development agreement, Ms. Wordell said there was a conflict between the heading No release until final inspection and the wording that says until the ciO, has issued a building permit. She noted that it should state until the City has completed final inspection. Mr. ICffian noted that the attorney for the developer may want to review the assignment and the other terms. Mr. Zales said flint he was willing to accept the language in order to make a decision tonight. He said he felt it was important to reach resolution at the meeting. Mr. Kilian said they may be some form changes in the agreement approved by the Council. Mr. Wordell said that the third line should read: "Project transferred or assigned until the City has completed the final inspections for the particular affected portion of the Project." Mr. Klean clarified that it meant that ifa project is to be sold or assigned to someone, a portion of the project, the developer is not released from this development agreement until there is final inspection on the buildings. Mr. Zales said it was his understanding that Paragraph 13.1 gave right to assign it subject to the city's consent, and his understanding of assignment, is that one of the consent issues is tha~ there is a responsible party being assigned to; at that point it is customary that the obligations that go with the agreement relating to those lots that might be assigned would be the responsibility of the assignee. He said he felt the paragraph was related to the Hewlett-Packard agreement and did not belong. Mr. Kilian clarified that the HP agreement said that HP must get the city's consent before it can assign the diocese development. Mr. Zales said that it typically involved public improvements, not the consmmtion of the homes, but the things bonded for. He said they would put up bonds and the bonds would have to be replaced if there is an assignee on the bonds and they would be responsible. Chair Hams said she was not comfortable writing a 7 year development agreement that wouldn't require written consent of the city on assignment. She said a development agreement is supposed to be a two-sided agreement. Mr. Kilian said that normally the consent requirement is where a city wants the developer to build something, in which case the city would ask that it be allowed to consent to any assignment because the new person comin4 in may not be in a position to develop. In this case, it was staff's feeling that it was not that material whether O'Brien was building it or some other person was building it because if it wasn't built, it would just not be built; they were just houses. He noted that Mariani went bunkmpt and they were the original developer; they weren't an assignee. Chair Hams said she felt the development agreement was hastily put together using a model and the well versed applicant wasn't aware of the significant clause in it that it was subject to versus without written consent. She said 13.2 is a problem, and we need to figure out exactly what obligations we want to hold this applicant to, and we need to figure them out and state them. Mr. Kilian said that the agreement was more for the benefit of the developer. Mr. Zales said that they assign some of the public improvements, they are willing to apply to the Planning Commission for approval of the assignment if they are assigning public improvement responsibilities; in terms of building homes it is a different issue. He suggested that language be put in the development agreement. Mr. Viskovich said that relalive to the assignment, on all public improvements, bonds are collected for everything that may benefit the public to the point it will be guaranteed because there are monies set aside. The assignment is for the houses and the city does not bond for the buildin~ of the houses. Mr. Kilian said that the development agreement was a preferable agreement to the Planning Commission Minutes 17 July 28, 1997 vesting tentative map from the city's point of view. Mr. Kilian said he did not see the reason to leave Section 13.2 in the agreement. MOTION: Com. Mahoney moved to approve 2-DA-97 per the draft development agreement with the exception of removing Section 13.2 and holding 7.1 in abeyance pending a d~sion of other it~ns. Chair Harris requested clarification on a 2:1 vote, which was questioned later, noting that the particular item required a 3:2 vote. Mr. Kilian explained that the ordinance was changed to state that zoning can be a 2:1 vote. He said that the development agreement is a zoning action. Mr. Kilian reported that the zoning law no longer requires that the vote be a majority o£the total Planning Commission, and the Planning Commission could proceed on any item rather than a General Plan item by a 2:1 vote. SECOND: Com. Austin ABSENT: Corns. Doyle and Robeats VOTE: Passed 2-1-0 Chair Harris declared a recess at 10:50 p.m. and reconvened at 1 l:00 p.m. ARCHITECTURAL REVIEW Application No.: Applicant: Location: 11 -U-96 (Mod.) Symantec CC5 Building Symantec Cupertino City Center, Apt. id So. DeAnza Blvd. approximately 400 ft. from the intersection of Rodrigues Requesting approval of a minor modification to an approved use permit for an architectural and site plan and an addition to the cafeteria. ENVIRONMENTAL DEI'ERMINATION: Categorically Exempt TENTATIVE CITY COUNCIL HEARING DATE: August 18, 1997 PLANNING COMMISSION DECISION F1NAL UNLESS APPEALED Chair Harris announced that Item 3 would have to be continued as there would no longer be a quorum. MOTION: SECOND: ABSENT: VOTE: Com. Austin moved to continue Application 11-U-96 to August 11, 1997. Com. Mahoney Corns. Doyle and Roberts Passed 3-0-0 There was a discussion regarding agenda items for upcoming agendas. OLD BUSINESS: None NEW BUSINESS: None